Punjab-Haryana High Court
Ajay Kumar vs State Of Haryana And Others on 15 October, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No.M-32610 of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-32610 of 2012(O&M)
Date of Decision:15.10.2012
Ajay Kumar .....Petitioner
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Premjit Singh Hundal, Senior Advocate,
with Ms.Manu Loona, Advocate,
for the petitioner.
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MEHINDER SINGH SULLAR , J.(oral) Concisely, the facts and material, culminating in the commencement, relevant for disposal of the instant petition for bail and emanating from the record are that, on 11.07.2012, in the wake of secret information, complainant-Mrs.Vijay Rani, Drug Control Officer and Mr.M.K.Bhadu, SMO, formed a raiding-party and conducted the search of the premises of Sharma Medical Agency, Dabwali, and recovered the following Narcotic drugs:-
S.No. Name of the Medicine Quantity(total)
1. Microlet tablets 15000
2. Lomotil tablets 20000
3. Rexcof syrup 480 bottles 4. Lupigesic injections 400 5. Unizocine injections 550 6. Zocin injections 900
7. Spasmocip capsules 1200
8. ZZZ tablets 1000
9. Zepose 10 Mg. 5000 tablets
10. Zepose 5 Mg. 3500 tablets CRM No.M-32610 of 2012(O&M) 2
11. Decalm 10 Mg. 3150 tablets
12. Decalm 5 Mg. 700 tablets
13. Spasmocip Plus 3300 capsules
14. Rest 0.5 32400 tablets
15. Parvon Spas 6800 capsules
16. Anxipam 1100 tablets
17. Dexovon 390 capsules
18. Antipam 2 Mg. 94000 tablets
19. Spasmo Plus 6000 tablets
20. Unizocine injections(1 ml) 1000
21. Spasmo proxyon 6912 capsules
22. Spasmo 720 capsules
23. Spasmo Cip Plus 2700 capsules 24. Unizocine injections 200
25. Provon Fort 100 capsules 26. Fortvin injections 96
27. Momolit tablets 44000
28. Prozolam 0.5 Mg. 35400
29. Provon Spas capsules 21780
30. Pheuolit tablets 10000
31. Tranax 5600
32. Alto 0.5 Mg.tablets 8800
33. Spazpmoci Plus capsules 7200
34. Parvodex capsules 2000
35. Alto 0.5 Mg.tablets 144000
36. Proxyvon capsules 2160
37. Parvon capsules 2304
38. Altipam-2 tablets 78000
39. Corex syrup 25000 bottles
40. Fhenoltil tablets 25000
41. Alto 0.5 tablets 90400
42. Luzapalm tablets 5000
43. Rexcaf cough syrup(602 ml) 2880 bottles
44. Rexcaf cough syrup(100 ml) 480 bottles
45. Rexcaf cough syrup(100 ml) 3840 bottles
46. Kilcaf(100 ml) 330 bottles
47. Kilcaf(10 ml) 5 bottles
2. According to the complainant that, she demanded the relevant stock register and sale record etc., but the accused could not produce the same. Having completed all the codal formalities of taking the samples etc., the samples & remaining drugs were sealed into separate parcels and taken into possession vide recovery memos in the presence of the witnesses.
CRM No.M-32610 of 2012(O&M) 3
3. Levelling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that a huge catch of the indicated Narcotic drugs were recovered from the possession of the accused, without any valid permit, licence or relevant record. In the background of aforesaid allegations and in pursuance of the aforesaid recovery, the present criminal case was registered against the accused including the petitioner, by means of FIR No.288 dated 11.07.2012, on accusation of having committed the offences punishable under Sections 21/22/61/85 of The Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act"), by the police of Police Station City Mandi Dabwali, District Sirsa.
4. Having exercised and lost his right of bail before the Sessions Judge, now the petitioner-accused has preferred the instant petition for regular bail in the indicated criminal case, invoking the provisions of Section 439 Cr.P.C.
5. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant petition in this context.
6. Ex facie, the arguments of the learned counsel that, since the manufactured drugs were recovered, no pointed offences are made out and moreover, the recovery of commercial quantity of drugs is not duly proved, so, the petitioner is entitled to the concession of regular bail, are not only devoid of merit but misconceived as well.
7. As is evident from the record that, huge and commercial CRM No.M-32610 of 2012(O&M) 4 quantity of the above-mentioned Narcotic drugs were recovered from the possession of the petitioner-accused, without any permit or licence. From the lengthy contentions of the learned counsel for the petitioner, the following two questions arise for determination:-
"(i) Whether exact quantity (total mass) of the contraband recovered from offender or percentage of Narcotic drugs/ Psychotropic Substances seized is to be taken into consideration in relation to manufactured drugs and preparations? If so its effect.
(ii) Whether Manufacturers, Chemists, Wholesale license holders under the Drugs and Cosmetics Act, 1940 possessing controlled substances and manufactured drugs/ prescription drugs are also required to comply with the statutory provisions of the NDPS Act, Rules and Order 1993 for their possession? If so its effect.
8. What cannot possibly be disputed here is that the identical questions came to be decided by a Coordinate Bench of this Court (Paramjeet Singh, J.) in main Crl.Misc. No.M-9327 of 2012 titled as "Vinod Kumar Vs. State of Punjab" alongwith 20 other connected cases, decided on 1.6.2012. After considering the relevant provisions, rules framed under the NDPS Act, the Drugs & Cosmetics Act, 1940 and various judgments, it was ruled as under:-
Re: Question No.(i)
i) As the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No.239 of the notification dated 19.10.2001 issued in S.O.No.1055(E) of the Central Government. It is absolutely necessary to conduct Pure Content Test to ascertain the exact quantity of the CRM No.M-32610 of 2012(O&M) 5 Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Pure Content Test, the whole contraband seized shall not be considered as such.
However, in all the cases registered on or after 17.11.2009, there is no necessity to conduct pure content test to ascertain the exact quantity of Narcotic Drugs, Psychotropic Substances and Manufactured Drugs. The whole contraband seized shall be considered as such even if it comes within the definition of Entry No. 239.
ii) In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No.239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need for Purity Test and in such cases, the entire quantity of Narcotic Drug/Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction and sentence will be imposed accordingly.
9. As regards the question No.2 is concerned, it was held that the manufacturers of manufactured drugs or prescription drugs, chemists, wholesale license holders under the Drugs and Cosmetics Act are required to comply with the provisions of NDPS Act, Rules and Order, 1993 for the possession of narcotic drugs, psychotropic and controlled substances.
10. Not only that, the same view was again reiterated by this Court in Crl.Misc.No.M-28114 of 2012 titled as "Jagtar Singh Vs. State of Punjab", decided on 12.09.2012. Therefore, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is attracted to the facts of the present case and is the complete answer to the problem in hand. CRM No.M-32610 of 2012(O&M) 6
11. Moreover, it cannot possibly be denied that the tendency and frequency of selling of Narcotic drugs, in order to earn easy money and spoiling the basic fabric of our society in this part of the country, has been tremendously increasing day-by-day, which needs to be curbed with heavy hands. Therefore, to me, the petitioner is not entitled to the concession of regular bail in the obtaining circumstances of the case.
12. In the light of aforesaid reasons 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, the instant petition for regular bail filed by the petitioner is hereby dismissed as such.
Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits of the main case, as the same has been so recorded for a limited purpose of deciding the present petition for regular bail.
October 15, 2012 (MEHINDER SINGH SULLAR) seema JUDGE