Sunil @ Suryakant Patel vs The State Of Madhya Pradesh on 17 January, 2022

[Cites 16, Cited by 1]

Madhya Pradesh High Court

Sunil @ Suryakant Patel vs The State Of Madhya Pradesh on 17 January, 2022

This is fifth bail application under Section 439 Cr.P.C. Applicant Sunil @ Suryakant Patel was arrested on 14.10.2019 in Crime No. 244/2019 registered at Police Station Sohagi, Distt. Rewa (M.P.) for the offence punishable under Sections 8, 21, 22 of NDPS Act and Section 5/13 of Drugs Control Act.

The first, second and fourth bail application of the applicant have been dismissed on merits by the coordinate Bench of this Court vide orders dated 10.12.2019, 27.07.2020 & 12.01.2021 passed in M.Cr.C.Nos.45709/2019, 20407/2020 and 51335/2020. The second bail application of the applicant has been dismissed for want of prosecution by the coordinate Bench of this Court vide order dated 10.12.2020 passed in M.Cr.C.No.42819/2020.

As per prosecution case, on 14.10.2019 on the information of the informant that one person was standing near Suhagi Tola along with WagonR car for selling illegal cough syrup and he kept that cough syrup in that car, Kanhaiya Singh Baghel, Sub-Inspector, Police Station Suhagi along with other members of police force reached Suhagi Tola, where he found that one car bearing registration No.UP70GT7487 was parked and applicant Sunil @ Suryakant Patel and co-accused Shivendra Kumar Kushwaha were present there and seized 1200 bottles of Onrex Cough Syrup containing codeine phosphate (Narcotic Substance) from the car which was illegally kept by the applicant for illegal sale.

Learned counsel for the applicant submits that the applicant has not Signature Not Verified SAN committed any offence and has falsely been implicated in the offence.

Digitally signed by RANJEET AHIRWAL Date: 2022.01.17 17:34:47 IST 2

Applicant has been in custody since 14.10.2019 and trial is still pending and the conclusion of trial will take time, hence prayed for release of the applicant on bail.

Learned counsel for the respondent/State opposed the prayer and submitted that earlier three bail applications of the applicant have been dismissed on merits by the coordinate Bench of this Court thereafter there is no change in circumstances. It is further submitted that police seized 1200 bottles of Onerex Cough syrup containing codeine phosphate a manufacturing drug from the possession of the applicant and applicant has no licence to keep that bottles in his possession. It is alleged that the applicant kept that bottles for illegal sale. So, looking to the provision of Section 37 of the NDPS Act, the applicant should not be released on bail.

Hon'ble Apex Court in the case of Mohd. Sahabuddin Vs. State of Assam, (2012) 13 SCC 491 observed as under :-

"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 NDPS 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."

Hon'ble Apex Court in the case of State of Punjab Vs. Rakesh Signature Not Verified SAN Digitally signed by RANJEET AHIRWAL Date: 2022.01.17 17:34:47 IST 3 Kumar, 2018 SCC OnLine SC 2651 after relying earlier judgment of Hon'ble Apex Court passed in the case of Union of India Vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances).

In light of the above judgements of the Apex Court, henceforth, if anyone is found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.

According to the Central Government notification dated 18.11.2009 the total Mixture recovered from the applicant will have to be taken into account without calculating the percentage of a narcotic drug and psychotropic substance separately to calculate the small and commercial quantity limit. Therefore, by application of the aforesaid notification, the percentage of a narcotic drug and psychotropic substance shall be inseparable and the whole contraband seized has to be taken into consideration that whether the same falls within the small quantity or commercial quantity or an intermediate quantity. The said notification was further upheld by Apex Court in the case of Harjit Singh vs. State of Punjab, (2011) 4 SCC 441 wherein it is held that under the notification the whole quantity of material recovered in form of the mixture has to be considered for the purpose of imposition of punishment.

The Apex Court in the case of Heera Singh Vs. Union of India, 2020 SCC Online SC 382 held that in case of seizure of mixture of Signature Not Verified SAN Digitally signed by RANJEET AHIRWAL Date: 2022.01.17 17:34:47 IST 4 Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances.

Earlier three bail application of the applicant have been dismissed on merits by the coordinate Bench of this Court vide orders dated 10.12.2019, 27.07.2020 & 12.01.2021 passed in M.Cr.C.Nos.45709/2019, 20407/2020 and 51335/2020 thereafter, there has been no change in circumstances.

It is alleged that the police seized 340 bottles of Onerex Cough syrup containing Codeine Phosphate (manufactured drugs) from the possession of applicant which was kept by the applicant for illegal sale, so looking to the provisions of Section 37 of the N.D.P.S. Act, this Court is not inclined to grant bail to the applicant. Accordingly, the bail application is hereby rejected.

However, it appears from the record that applicant is in custody since 14.10.2019 and trial is still pending, so it is expected from the trial Court to dispose of the case as early as possible preferably within seven months from the date of receipt of the copy of this order.

Learned trial Court is also directed to send progress report of the trial in every two month to the Principal Registrar (Vigilance) through District Judge, Jabalpur.

Office is directed to send a copy of this order to the concerned trial Court for necessary compliance.

(RAJEEV KUMAR DUBEY) JUDGE (ra) Signature Not Verified SAN Digitally signed by RANJEET AHIRWAL Date: 2022.01.17 17:34:47 IST

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