Asha Vishwakarma vs State Of Madhya Pradesh

Heard with the aid of case diary.

This is third application under Section 439 of the Cr.P.C. for grant of bail. Applicant Asha Vishwakarma was arrested on 07/09/2019 in connection

with Crime No.749/2019 registered at Police Station City Kotwali, District Rewa for the offence punishable under Sections 8-B, 21, 22 of the NDPS

Act 1985 and Section 5/13 of the M.P. Drug Control Act.

 The earlier bail applications of the applicant were dismissed for want of prosecution by this Court vide orders dated 6/12/2019 & 31/1/2020 passed

in M.Cr.C.Nos.40581/2019 & 53878/2019.

 A s per prosecution case, on 07/09/2019 on the information of informant Police apprehended the applicant and seized 316 bottles of Onerex Cough

syrup (100 ml. each) containing codeine phosphate (Narcotic Substance) from the possession of the applicant, which was illegally kept by her.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the offence. It is alleged that Police seized

316 bottles of Orenex Cough syrup from the possession of applicant, while possession of Orenex Cough syrup is not an offence punishable under the

provisions of NDPS Act. In this regard he also placed reliance on the order passed by the Coordinate Bench of this Court in M.Cr.C.No.19693/2018

(Kamlesh Mali Vs. The State of Madhya Pradesh) decided on dated 10/08/2018. It is further submitted that the applicant is a lady and she has been in

custody since 07/09/2019. The charge-sheet has been filed and conclusion of trial will take time, hence prayed for release of the applicant on bail.

On the other hand learned counsel for the respondent/State opposed the prayer and submitted that 316 bottles of Onerex Cough syrup (100 ml. each)

containing codeine phosphate were seized from the possession of the applicant and the applicant was not having valid documents to keep the same in

her possession, so it is assumed that the applicant wrongly kept 316 bottles of Onerex Cough syrup in her possession, hence offence under the

provisions of NDPS Act is clearly made out against the applicant. Other 23 cases are also registered against the applicant, so looking to the provisions

of Section 37 of the NDPS Act the applicant is not entitled for grant of bail.

The Coordinate Bench of this Court in the case of Kamlesh Mali Vs. The State of Madhya Pradesh (supra) did not consider the judgments passed by

the Hon'ble Apex Court in the cases of Mohd. Sahabuddin Vs. State of Assam, (2012) 13 SCC 491, State of Punjab Vs. Rakesh Kumar, 2018 SCC

OnLine SC 2651 and Harjit Singh vs. State of Punjab, (2011) 4 SCC 441. Hon'ble Apex Court in the case of Mohd. Sahabuddin Vs. State of Assam,

(2012) 13 SCC 491 observed as under :-

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 Kumar, 2018 SCC OnLine SC 265 1after 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).

I n 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 o f 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.

It is alleged that police seized 316 bottles (100 ml. each) of Onerex Cough syrup (containing 10 mg. codeine phosphate in each bottle) from the

possession of the applicant, which was illegally kept by her in her possession. Applicant has criminal past. So, looking to the facts and circumstances

of the case and the provisions of Section 37 of the N.D.P.S. Act, this Court is not inclined to grant bail to the applicant.

Accordingly, application is rejected.