Jammu & Kashmir High Court - Srinagar Bench
Aijaz Ahmad Wani vs Ut Of J&K Through P/S Yaripora on 2 September, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 30.08.2022
Pronounced on: 02.09.20202
Bail App No.60/2022
AIJAZ AHMAD WANI ... PETITIONER(S)
Through: - Mr. Tahir Ahmad Bhat, Advocate.
Vs.
UT OF J&K THROUGH P/S YARIPORA ...RESPONDENT(S)
Through: - Mr. Usman Gani, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has invoked jurisdiction of this Court under Section 439 of the Cr. P. C seeking bail in FIR No.02/2020 for offences under Section 8/21 and 8/22 of the NDPS Act registered with Police Station, Yaripora Kulgam.
2) As per case of the prosecution, on 07.01.2020, the police party of Police Station, Yaripora, while performing Naka duty at Frisal Market, intercepted a vehicle bearing No.JK03A-3283, that was being driven by the petitioner. The vehicle in question was subjected to checking and a blue coloured polythene bag was found underneath the driver's seat. Upon opening, the bag was found to contain 40 bottles of Lykarex (100 ml each). The petitioner could not give any justification for possession of the aforesaid drugs. Accordingly, FIR No.02/2020 for offences under Section 8/21 and 8/22 of the NDPS Act came to be registered and Page |2 Bail App No.60 /2022 investigation of the case was set into motion. During investigation of the case, the recovered bottles were seized. The accused was also arrested and the sample of the recovered drugs, after being sealed, was sent to the FSL for chemical examination. Upon receipt of the report of the expert, it was found that the bottles were containing narcotic substance, namely, Codeine Phosphate. Thus, offences under Section 8/21 and 8/22 of the NDPS Act were found established against the petitioner and the challan was laid before the Court of Principal Sessions Judge, Kulgam. The charges for offences under Section 8/21 and 8/22 of the NDPS Act were framed against the petitioner in terms of order dated 31.08.2021 and the trial of the case is in progress.
3) It appears that during the trial of the case, the petitioner had approached the trial court for grant of bail but his application has been dismissed by the learned trial court vide its order dated 13.05.2022.
4) It has been contended in the petition that the learned Principal Sessions Judge while dismissing the bail application of the petitioner has not considered the facts and circumstances of the case. It is further contended that the learned trial court has not applied its judicial mind to the material on record. It is also contended that the evidence led by the prosecution in the instant case does not even prima facie disclose the commission of the offences with which the petitioner has been charged. Lastly, it has been contended that the petitioner is in custody for last more than two years and the trial of the case is almost complete and, as such, he deserves to be enlarged on bail.
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5) The respondent has resisted the bail application of the petitioner by filing a reply thereto. In the reply, it has been contended that commercial quantity of the manufactured drug has been recovered from the possession of the petitioner, as such, rigour of Section 37 of the NDPS Act is attracted to his case. It is further contended that the petitioner is involved in a heinous crime and, as such, he does not deserve any leniency from this Court.
6) I have heard learned counsel for the parties and perused the record of the case including the trial court record.
7) During the course of arguments, the main thrust of learned counsel for the petitioner was upon the contention that the report of the Drug Analyst, to whom the samples of the recovered drugs were sent for chemical examination, cannot be taken into account because she was not legally authorized to do so. It is contended that the learned trial court has failed to give any finding on this aspect of the matter while rejecting the bail application of the petitioner.
8) A perusal of the trial court record reveals that the sample of the recovered drugs has been examined by the Drug Analyst, Drug Testing Laboratory, Dalgate Srinagar. The learned trial court has rightly observed that the question whether the said Drug Analyst was legally authorized to examine the sample of the drug can be determined only after the trial of the case and not at the stage of considering the bail application.
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9) It is a settled law that at the time of considering a bail application, the court cannot appreciate the evidence led by the prosecution nor can it critically examine the same. The observation of the learned trial court in this regard is in accordance with law and this Court would also not go into validity of the report of the Drug Analyst while considering the bail application of the petitioner.
10) There is, however, yet another aspect of the matter which is required to be noticed. If it is assumed that the report of the Drug Analyst, on which reliance is being placed by the prosecution, is correct, then in that case, as per the said report, contents of Codeine Phosphate, which is a narcotic drug, in each 5 ml of the sample was found to be 9.846 mg which comes to about 0.2% of the entire contents of the sample
11) The drug alleged to have been recovered from the petitioner, as per the prosecution case, falls within the definition of "manufactured drug" as contained in Section 2(xi) of the NDPS Act, which reads as under:
"manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by Page |5 Bail App No.60 /2022 notification in the Official Gazette, declare not to be a manufactured drug.
12) From a perusal of the aforesaid definition of the "manufactured drug", it appears that any narcotic substance other than all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug. It further provides that it would, however, not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a "manufactured drug".
13) It appears that, in exercise of the powers conferred under the aforesaid provision, the Central Government has issued notification bearing No.S.O.826(E) dated 14th November, 1985 declaring certain narcotic substances and preparations to be "manufactured drug". Entry (35) of the said notification is relevant to the context and the same is reproduced as under:
"(35) Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice."
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14) From a perusal of the aforesaid Entry, it appears that Codeine and its salts, all dilutions and preparations have been declared as "manufactured drugs". An exception has been carved out in respect of those which are compounded with one or more other ingredients and containing not more than 100 mg of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice, meaning thereby that if concentration of Codeine in undivided preparation is not more than 2.5% and further it has been established in therapeutic practice, then it would not qualify to be a "manufactured drug".
15) Coming to the instant case, as per the seizure memo, 40 bottles of Lykarex T-Syrup (100 ml each) were recovered from the possession of the petitioner and as per the report of the Government Analyst, on which reliance is being placed by the prosecution and which, in fact, has been proved by its author during the trial of the case, each 5 ml of the sample contains Codeine Phosphate to the tune of 9.846 mg, though as per the label of the sample, the quantity of Codeine Phosphate is shown to be 10 mg in each 5 ml. Even if we take the contents of Codeine Phosphate as 10 mg, still then the percentage of Codeine Phosphate in the entire contents of the recovered drug would come to about 0.2% of the whole contents. Thus, the exception carved out in Entry (35) of the notification bearing S.O. No.826(E) dated 14th November, 1985, would come into play. As per the said exception, those drugs which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not Page |7 Bail App No.60 /2022 more than 2.5% in undivided preparations and which have been established in therapeutic practice would not qualify to be a 'manufactured drug', which, in other words, means that if concentration of Codeine in undivided preparation is not more than 2.5% and further it has been established in therapeutic practice, then it would not qualify to be a 'manufactured drug'. Once the drug recovered from the possession of the petitioner does not prima facie fall within the definition of 'manufactured drug', any amount of neutral substance recovered from the petitioner would not be a manufactured drug or a narcotic substance within the meaning of Section 2(xi) and 2(xiv) of the NDPSD Act.
16) The High Court of Delhi in Iqbal Singh vs. State (Bail App No.645/2020 decided on 31st July, 2020), while dealing with a matter where the FSL report showed that the quantity of Codeine in the samples was 0.17% and 0.18%, held that the substance recovered from the petitioner in the said case does not fall within the definition of "manufactured drug" as contained in Section 2(xi) of the NDPS Act and, accordingly, bail was granted to the petitioner therein.
17) Having taken a prima facie view on the basis of the material available on the challan filed before the trial court that percentage of Codeine Phosphate in the recovered drug is less than 2.5%, as such, there are reasonable grounds to believe that the petitioner is not guilty of the offence relating to possession of commercial quantity of contraband drugs.
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18) Apart from the above, trial of the case is almost complete and it appears that only one prosecution witness is to be examined in the case. The petitioner has been in custody for more than two and a half years and in case he is admitted to bail, there are almost negligible chances of his tampering with the prosecution witnesses.
19) For the foregoing reasons, the application is allowed and the petitioner is admitted to bail subject to the following conditions:
(i) That he shall furnish bail bond and personal bond in the amount of Rs.1.00 lac (rupees on lac) with one surety of the like amount to the satisfaction of the trial court;
(ii) That he shall appear before the trial court on each and every date of hearing;
(iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the trial court;
(iv) That he shall not tamper with the prosecution witnesses/evidence;
(v) That he shall not indulge in the similar activities;
(SANJAY DHAR) JUDGE Srinagar, 02.09.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No