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19. The petitioner further submits that he is an authorized seller of syrups containing codeine and has sold syrups containing codeine to another authorized wholesaler/ retailer i.e. Mr. Harish Chander proprietor of M/s Shiv Medicos and thus, he is protected for the reason that the codeine syrups have been sold for therapeutic purposes and that the medicines sold, do not have more than 100 mg of the drug per dosage unit and the concentration is not more than 2.5 per cent which is thus exempted through the list of manufactured Narcotics Drugs as per Government of India Notification No. S.O.826 (E) dated 14.11.1985 and S.O.40 (E) dated 29.01.1993 and in as much as vide entry at serial no. 35 thereof, it has been stipulated therein to the effect:-

21. The Central Bureau of Narcotics vide its reply has vehemently opposed the prayer made by the petitioner seeking the grant of bail submitting to the effect that the embargo under Section 37 of the NDPS Act, 1985 applies wholly in the instant case and that it is applicable to all conspirators acting in furtherance of their common object. It has been submitted categorically by the respondent that the petitioner had illegally sold 406460 bottles of 100 ml each of codeine based syrup containing 40646 Kgs of Narcotic Drug i.e. codeine in violation of the provisions of Section 8(c) read with Sections 21 and 29 of the NDPS Act, 1985 apart from having also sold illegally 532800 capsules of Tramadol (containing 205.128 kgs of a psychotropic substance) and 300 injections of Pentazocine (containing 300 gram Psychotropic Substance) in violation of the provisions of Rule 65 of Drug and Cosmetic Rules and has thus, violated the provisions of Rule 65A of NDPS Rules, 1985 read with Section 8(c), 22 and 29 of the NDPS Act, 1985.

29. It was submitted on behalf of the respondent i.e. the Central Bureau of Narcotics that though, Tramadol was declared a psychotropic substance on 26.04.2018 to control its abuse/ misuse in exercising of powers conferred under Section 3 of the NDPS Act, 1985 yet the petitioner had been able to procure 205.128 kgs of a psychotropic substance i.e. 532800 capsules of Tramadol prior to 26.04.2018 but there was nothing on record to show that the petitioner had sold the drugs prior to 26.04.2018 i.e. the date on which the drug was declared a psychotropic substance and that it was thus to be presumed in terms of Section 54 of the NDPS Act, 1985 that the petitioner had committed such offence. Furthermore, it was submitted on behalf of the respondent qua the contention of the petitioner that codeine syrup did not fall within the definition of a Narcotic Drug that the same would apply only if the codeine syrup was actually sold or dealt with for a therapeutic use and since all the bottles of codeine syrup had been sold without any bills and the sale was in relation to more than the prescribed quantity and was a commercial quantity, there was nothing to suggest that those bottles were required in such huge quantum for a therapeutic use. Reliance in relation thereto has been placed on behalf of the respondent on the verdict of the Hon'ble Supreme Court in "Mohd. Sahabuddin and Another Vs. State of Assam" in CRL.A. No.1602/2012 dated 05.10.2012 to contend that where the requirement of the codeine syrup, being meant for therapeutic practices was not satisfied, in that event the entire quantity of the drug is to be calculated for the purpose of proceedings under the NDPS Act, 1985 and as a consequence thereof, the penal provisions of the NDPS Act, 1985 would prima facie apply.

30. The Central Bureau of Narcotics has contended that the petitioner had procured 406460 bottles of 100 ml each of codeine based syrup containing 40646 Kgs of Narcotic Drug i.e. codeine using his drug licence and for having sold them illegally for trafficking.

31. Reliance was placed on behalf of the petitioner on the verdict of the Hon'ble High Court of Allahabad in "Ashok Kumar Vs. Union of India and Ors." 2014 SCC OnLine All 16411to contend that in that case, possession of phensedyl cough syrup containing codeine within the prescribed quantity with licence was held not sufficient to invite the penalties under the NDPS Act, 1985 and that phensedyl cough syrup was required to be considered as a drug under the Drugs and Cosmetics Act. In relation thereto, the Central Bureau of Narcotics has contended as adverted to hereinabove that cough syrup containing codeine would not fall under the definition of a Narcotic Drug only if the cough syrup was actually sold or dealt with for a therapeutic use and once there was evidence to suggest that the cough syrup was diverted for abuse purpose and not for a therapeutic use, then the provisions of the NDPS Act, 1985 would come into play and the whole quantity of the narcotic drug is to be calculated for the purpose of proceedings under the NDPS Act, 1985.