Punjab-Haryana High Court
Kamaljeet Singh vs State Of Punjab on 8 May, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl. Misc. No. M-14627 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Crl. Misc. No. M-14627 of 2013 (O&M)
Date of decision : 08.05.2013
Kamaljeet Singh
...Petitioner
Versus
State of Punjab
..Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present: Mr. Kuldeep V. Singh Ahluwalia, Advocate
for the petitioner.
****
Mehinder Singh Sullar, J. (Oral)
As is evident from the record, that first petition for regular bail bearing CRM-M No.17567 of 2012, filed by the petitioner was dismissed as withdrawn, vide order dated 18.09.2012 and second petition for regular bail bearing CRM-M No.38164 of 2012 was dismissed as well by way of order dated 10.12.2012, by this Court.
2. Now the petitioner has preferred the instant third petition for regular bail in a case registered against him, vide FIR No.34 dated 05.06.2011, for the commission of an offence punishable under Section 22 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the NDPS Act'), by the police of Police Station City Budhlada, District Mansa, invoking the provisions of Section 439 Cr.P.C.
3. The crux of the prosecution version, in brief, insofar as, relevant is that in the wake of search of bag of the petitioner, 10 boxes of Crl. Misc. No. M-14627 of 2013 (O&M) -2- Phenotil tablets, 50 pocket each having LOT No.PB-11-67, containing 100 tablets each packet i.e. total 50,000 tablets, one box containing Microlit tablets containing 50 packets having Batch No.MT1011009, each packet containing 100 tablets i.e. Total 5000 tablets, nine box of Alto 0.5. tablets, each box having Batch No.TAF 1104 containing 10 strips containing 80 tablets in each total 7200 tablets, five box of Migest Kit tablets, total 250 tablets, one plastic box containing 30 packets having Batch No. 04.101 each Vigora 50 Red tablets containing 4 tablets each i.e. Total 120 tablets Vigora 50 Red tablets, 8 box of Body Grow powder each containing 500 grams i.e. Total 4 kgs powder as well as 500 grams intoxicating powder along with one vial of 900 ml of intoxicated liquid, were recovered from his (petitioner) possession, without any permit or license.
4. Having completed all the codal formalities, the police has taken into the possession the indicated Narcotic Drugs and Psychotropic Substances, vide recovery memos. On the basis of aforesaid recovery of commercial quantity of Narcotic Drugs and Psychotropic Substances, the present case was registered against the petitioner-accused, in the manner depicted here-in-above.
5. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the present petition in this context.
6. Ex facie, the arguments of learned counsel that the petitioner has been falsely implicated by the police in this case and since the manufactured Narcotic Drugs and Psychotropic Substances were recovered from possession of the petitioner, so, no offence under NDPS Act is made Crl. Misc. No. M-14627 of 2013 (O&M) -3- out and the petitioner is entitled to regular bail, are neither tenable nor the observation of Hon'ble Apex Court in case State of Uttaranchal Vs. Rajesh Kumar Gupta, 2006 (4) RCR (Criminal) 974, are at all applicable to the facts of the present case, wherein it was observed that the accused (therein) was an Ayurvedacharya. Advertisements were, allegedly, being issued by him in various newspapers claiming that medicines used by him were prepared from herbal plants collected from the bank of Ganges and by application thereof patients suffering from epilepsy can be cured. The State, however, on the allegation that in his medicine, he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, raided the premises of the accused and recovered 70 Kgs. pure phenobarbitone.
7. The High Court opined that ordinarily applications for bail are required to be considered having regard to Section 37 of the NDPS Act. It, however, noticed that as the recovered drugs not being listed in the 1st Schedule appended to NDPS Act/Rules, therefore, the accused cannot be said to have been committed any offence punishable u/s 8 read with section 22 of the NDPS Act and was released on bail. In the wake of appeal filed by the State of Uttaranchal, the question raised before the Hon'ble Apex Court was as to whether the provisions of section 37 of the NDPS Act were attracted or not. On the peculiar facts & in the special circumstances of that case, it was ruled as under (para 35) :-
"Respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses out morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly in view of the fact that he has been in custody Crl. Misc. No. M-14627 of 2013 (O&M) -4- for a period of more than two yeas now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India."
8. Sequelly, the orders in CRM-M No.4913 of 2013 titled Harjinder Singh @ Soni Vs. State of Punjab and in CRM-M No.34013 of 2011 titled Vijay Kumar @ Banti Vs. State of Punjab, passed by a Co- Ordinate Benches of this Court, would not advance the cause of the petitioner, in any manner, wherein it was observed that if the manufactured drugs did not fall in the schedule, so, the accused cannot be prosecuted under the NDPS Act.
9. There can hardly be any dispute with regard to the aforesaid observations but the same would not come to the rescue of the petitioner, in the instant controversy.
10. What cannot possibly be disputed here is that the indicated Narcotic Drugs, Psychotropic Substances and controlled salt, recovered from the possession of the petitioner, are duly described and squarely fall, within the ambit of amended table/schedule, appended with the NDPS Act and the relevant rules framed thereunder. Therefore, it cannot possibly be saith that no offence under Section of the indicated Act is made out against the petitioner, at this stage, as contrary urged on his behalf.
11. Not only that, the questions as to whether the possession of such manufactured Narcotic Drugs, Psychotropic and controlled substances, falls within the ambit of the schedule of NDPS or not is no more res integra and well settled.
12. An identical question came to be decided by this Court in case Parmanand vs. State of Haryana and others (P&B), 2013(1) RCR (Criminal) 375. Having interpreted the relevant provisions & rules of the Crl. Misc. No. M-14627 of 2013 (O&M) -5- NDPS Act, the Cosmetics & Drugs Act and the previous judgment of this Court in case Vinod Kumar Vs. State of Punjab, 2013(1) RCR (Criminal) 428, it was ruled that the possession of such manufactured Narcotic Drugs and Psychotropic Substances, contravene the provisions of, and is punishable under the NDPS Act, Rules and Order, 1993. Therefore, the indicated ratio of law is "mutatis mutandis" is applicable to the facts of the present case and is complete answer to the problem in hand.
13. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner.
14. In the light of aforesaid reasons, thus seen from any angle and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the main case, as there is no merit, therefore, the instant petition for regular bail filed by the petitioner is hereby dismissed as such in the obtaining circumstances of the case.
15. Needless to mention that nothing observed, here-in-above, would reflect on the merits of the main case, in any manner during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition for regular bail.
May 08, 2013 (Mehinder Singh Sullar) naresh.k Judge