Himachal Pradesh High Court
Bir Chand vs State Of H.P on 5 October, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.P. (M) No. 1227 of 2018.
Date of Decision: 5th October, 2018.
.
Bir Chand .....Petitioner.
Versus
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Ashok Kumar, Advocate. For the Respondent: Mr. Hemant Vaid, Addl. A.G. with Mr. Vikrant Chandel and Mr. Yudhveer Singh Thakur, Deputy Advocate Generals.
Sureshwar Thakur, Judge The instant petition, warrants, an, adjudication being meted, vis-a-vis, (a) the aggregate or the total, of, the banned narcotic drug, rather comprising the apposite parameter, for, making a further determination, qua, thereupon, the purported recovery(ies), from, the alleged conscious and exclusive possession of the petitioner, being amenable, for, ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 2 being categorized, as, (a) commercial quantity or more than commercial quantity thereof, (b) AND the aggregate or the gross weight, of, the entire contents, .
as, carried in all the seized strips, likewise constituting the reckonable parameter, for making the apt determination, qua effectuation, of recovery(ies) thereof, from, the exclusive, and, conscious possession, of, the accused, being, hence construable to be (i) small quantity or r (ii) more than small quantity or
(ii)commercial quantity thereof.
3. In FIR No. 100 of 2018, registered against accused/petitioner herein, the FSL concerned (i) qua the lomotil tablets allegedly recovered, from, the exclusive and conscious possession of accused Bir Chand, has opined, qua, each tablet carrying, only, 2.52 mg Diphenoxylate hydrochloride and 0.025mg Atropine Sulphate , (ii) yet the aggregate weight, of, the total tablets, as, recovered from the exclusive possession of the accused, without segregating therefrom, the pure contents, of, Diphenoxylate hydrochloride, and, Atropine Sulphate, renders, the apposite haul, to fall, within, the domain, of it being construable to be ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 3 categorized, as, more than commercial quantity, of Diphenoxylate hydrochloride, and, Atropine Sulphate,
(iii) thereupon reiteratedly also an adjudication, is to be .
meted qua any apt pure contents thereof, hence, comprising the apt parameter(s).
5. Mr. Ashok Kumar, learned counsel appearing, for the petitioner, contends, that, with hence Diphenoxylate occurring, at serial No.44, of, the table appended, with, the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act), and, with a clear, and, candid prescription, borne therein, wherein rather 2 gm, is specified, as, small quantity thereof, (i) hence, the aggregate quantum any of Diphenoxylate, as, borne in each of the seized strips/tables, alone, being construable, to be the apt reckonable principle, for making the further determination, vis-a-vis, the strips/tablets recovered, from the exclusive and conscious possession, of the accused, dehors, the aggregate or total whereat of the contents, of the tablets borne, in each of the seized strips, hence, falling or not falling, within the domain, of, small or more than small or commercial quantity ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 4 thereof, (ii) specifically, when the table, with, clear explicit hence refers to dephenoxylate, and, omits to make any explicity reference therein, vis-a-vis, the .
other part of the tables, carried in each of the seized strips, rather, being also reckonable, nor , with, the total or aggregate, whereof, of, the entire milli-gram, carried in each of the seized tablets, being mandated to comprise, the justifiable principle, hence, for making, the apt reckoning qua, the seizure falling within the domain of small quantity or more than small or commercial quantity thereof.
6. In making the aforesaid submissions, the learned counsel, appearing for the petitioner, has placed reliance, upon, the verdict pronounced, by, the Hon'ble Apex Court, in a case titled as E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008)5 SCC 161, the relevant paragraph No.19 whereof stand extracted hereinafter:-
"16. On going through Amarsingh case (2005)7 SCC 550, we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s. In fact that was not the issue before the Court. The black-coloured liquid substance was ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 5 taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as `opium derivative which requires a minimum 0.2% .
morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance/s. Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. "
(p.170-171)
(a)wherein an affirmative view has been pronounced, (i) vis-a-vis any narcotic drug, and, psychotropic substance(s), upon, theirs being found rather mixed with one or more neutral substance(s), thereupon, for ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 6 the purpose of imposition of punishment, only the weight, of, pure contents of the narcotic drug, and, the weight, only of, the psychotropic substance, being the .
alone reckonable besides the apt parameter(s).
7. The learned counsel appearing for the petitioners also placed reliance, upon, a judgment of the Hon'ble Apex Court, rendered, in a case titled, as, Mohd. Sahabuddin and another vs. State of Assam, reported in (2012) 13 SCC 491, relevant paragraph(s) No.11 and 12 whereof, stand extracted hereinafter:-
"11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml. bottle if related to the permissible dosage, namely, 5 ml. would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means 'contributing to cure of disease'. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 7 usage for curing a disease and as an action of remedial agent.
12. As pointed out by us earlier, since the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule 'H' drug .
containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml. content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the N.D.P.S. Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the above referred to notifications, the application of the exemption provided under the said notifications in order to consider the appellants' application for bail by the Courts below does not arise."
(p.495-496)
(a)wherein it stands expostulated, qua, for the accused/bail applicants concerned, deriving, the benefits, of, notifications respectively issued, on 14.11.1985, and, on 29.1.1993, it being incumbent, for them to establish (a) the twin conditions qua the contents of narcotic substances imperatively, not, exceeding 100 mg per dose unit, (b) and with a concentration of, not, more than 2.5% in undivided ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 8 preparation, and, apart therefrom, the other condition, of, it being evidently transported, only for therapeutic practice i.e. for contributing to cure of disease, also, .
necessitating, its, imperative satisfaction. However, the reliance placed thereupon, is inapt, for the reasons (i) the counsel not bearing in mind the trite factual matrix, as, appertaining to the case supra, as, occurs in preceding paragraph No.10 thereof, wherein, there is a trite display, of the apt recovery, effectuated, from, the accused therein, being vis-a-vis bottles of Phensedyle cough syrup, whereinwithin existed, hence, 183.15 to 189.85 mg of codeine phosphate, and, each 100 ml bottle of Recodex cough syrup, also, contained 182.73 mg of codeine phosphate, (ii) AND obviously, even after, multiplying the aforesaid quantum of codeine phosphate, as, carried in each 100 ml., bottle(s) of Phensedyle cough syrup, and, of Phensedyl, with the respective numerical strength, of, the respective cache, of, bottles, thereupon, also the level of the banned narcotic drug, namely, codeine phosphate, being, in a quantum, whereupon, obviously the carrying thereof, of, even pure contents of codeine phosphate, as, borne ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 9 in the cache, of, seized bottles, of, Phensedyle cough syrup, and, of Recodex cough syrup, is rendered hence, to fall within the ambit, of, commercial quantity thereof, .
(iii) hence, in succeeding paragraph No.12, the Hon'ble Apex Court, had propounded that, yet, with a notification of 14.11.1985, and, of 29.1.1993, enjoining upon the accused, to satisfy the aforesaid twin conditions, and, the material thereat also evidently, bearing out, qua its being transported, for therapeutic practice, thereupon, alone all the benefit(s) thereof, being accruable, vis-a-vis, the accused. Contrarily hereat, the level or extent or quantum, of the pure content, of the banned narcotic drug(s), namely, codeine phosphate, as, carried, in each, of the seized bottles, after, segregating therefrom hence the contents of the other part of the mixture, borne in each of the bottle(s), renders, the, apt quantum thereof, to, fall within small quantity thereof, (iv) thereupon, hence the ratio decidendi, propounded, in the aforesaid case, being unavailable for bestowal upon the accused herein, (v) more so when neither the notifications alluded therein, are, espoused hereat, for deriving, the, ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 10 apposite benefits thereof, nor the twin conditions embodied, therein, are, hereat propagated nor when the extant cache, is, espoused, to be transported, only .
for therapeutic use. Consequently, reliance upon the case supra, is, inaptly placed. Contrarily, the factual scenario prevailing hereat, is, covered by the pronouncement, made, in E. Micheal's case (supra).
8. The learned counsel appearing for the petitioners also places reliance, upon, a judgement of the Hon'ble Apex Court, rendered in a case titled, as, Harjit Singh vs. State of Punjab, (2011)4 SCC 441, (i) wherein, vis-a-vis, the seizure of 7.10 kg of opium, as, effectuated, from, the exclusive and conscious possession of the accused therein, and, with its being opined, to contain 0.8% morphine, it standing expostulated qua hence the entire mass or gross weight, of the opium rather being the apt reckoner, dehors the percentum of morphine, occurring therein.
(ii) It has also been expostulated, therein that the entire quantity or the gross weight, of the entire ill substance, being rather recknonable, for making the further apt determination, qua whether the recovered substance, ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 11 hence falling within small quantity or greater than small quantity or commercial quantity thereof. The apt paragraph No.21 of Harjit Singh's case (supra), stands .
extracted hereinafter, "21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 1018(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry No.92 becomes totally redundant. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue.
More so, opium derivatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity."
(iii) Though evidently, the seized contraband i.e. opium, did, contain some per centum of morphine, yet ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 12 therein, it, has also been propounded, that the existence, of, some per centum of morphine therein, being an irrelevant factor, for determining qua hence .
the substance or contraband seized, from, the exclusive and conscious possession of the accused therein, being construable to be opium, rather the entire quantum, of, the narcotic drug or substance, as, recovered from the exclusive and conscious possession of the accused therein, being the solitary apt determinant, r (iii) thereupon also the aforesaid, expostulation, does not give any leverage to the espousal, of, the counsel for the bail applicants, rather contrarily support therefrom, is, derived by the State, for contending that the gross weight or the aggregate, of the entire mixture, borne in all the seized bottles or the entire weight or the total of the tablets, carried, in,all strips, as recovered, from the conscious and exclusive possession, of the accused, being, the only recknonable factor, for making the apt determination.
9. The learned Addl. Advocate General submits, that with notification bearing S.O.2941(E) of 18.11.2009 whereunder Note 4 in the table, at the end of Note 3, is ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 13 added, (i) with a prescription therein, qua the quantum or the level of presence, of, the pure banned narcotic drug, in, the seized cache, being the singular, .
reckonable parameter, for making an apt determination, of, quantification thereof, thereupon, the espousal addressed before this Court, by the counsel for the petitioners, hence, warranting rejection. The aforesaid submission, is anvilled, upon, a verdict pronounced by the Hon'ble Apex Court in Cr. Appeal No. 722 of 2017, titled as Hira Singh & Anr. vs. Union of India, decided on 3.07.2017, whereunder, the hereinafter extracted questions, stand referred, for determination, by a larger Bench of the Hon'ble Apex Court, and, more particularly with the apt reference, appertaining, vis-a-vis, the legal expostulation settled by the Hon'ble Apex Court in E. Micheal Raj's case (supra), being or not being per incuriam, vis-a-vis, the notification of 19.10.2001, rather hence awaiting rendition thereon, thereupon, the benefits of all the trite expostulations, borne in, E. Micheal Raj's Case (supra) being not affordable, to the bail petitioners, ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 14 "(a) Whether the decision in this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry No.239 and Note 2(two) of the notification dated .
19.10.2001 as also the interplay of other provisions of the Act with Section 21?
(b) Does the impugned notification issued by the Central Government entail the redefining the parameters for constituting an offence and more particularly for awarding punishment?
(c) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
(d) Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug?
However, the aforesaid submission is rejected, for the reasons, (ii) qua nowat, with, the larger Bench of the Hon'ble Apex Court, not making any pronouncement, upon the afore-extracted questions, as, referred thereto, for meteing, of, an adjudication, (ii) AND in ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 15 aftermath, with, the vires of the apt notification standing not upheld nor reversed nor the verdict pronounced by the Hon'ble Apex Court, in, E. Micheal .
Raj's case (supra), with, clear expostulations (supra) occurring therein, standing neither quashed nor set aside, thereupon, dehors any apt non rendition thereon , it is not deemed just, fit and appropriate, to curtail the liberty of the bail petitioners. Consequently, the petition is allowed, and, the bail petitioner is ordered to be released, on bail, subject to his complying with the following conditions:
(i) that the bail applicant shall furnish personal bond in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of the learned Sessions Judge, Solan ;
(ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency;
(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP 16 so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iv) that he shall not leave India without the prior .
permission of the Court ;
(v) that he shall deposit their respective passports, if any, with the Police Station concerned; and
(vi) that in case of violation of any of these conditions, the bail granted to the petitioners shall be forfeited and he shall be liable to be taken into custody.
10. Any observation made hereinabove, shall not, be taken as an expression of opinion on the merits, of the case, and, the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
Dasti copy.
(Sureshwar Thakur) 5 th October, 2018. Judge.
(jai) ::: Downloaded on - 08/10/2018 22:57:35 :::HCHP