Ashok Kumar vs State Of Rajathan

The present third bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner who is in custody in connection with FIR

No.27/2018, Police Station Purani Abadi, District Sri Ganganagar for the offence punishable under Section 8/21 of the NDPS Act.

The second bail application of the petitioner was dismissed on 13/03/2019 by this Court.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

It is submitted on behalf of the petitioner that after dismissal of the second bail application of the petitioner, the matter was taken to the Hon’ble

Supreme Court assailing the validity of the order dated 13/03/2019 passed by this Court in S.B. Criminal Misc. Second Bail Application No. 9028/2018

and the Hon’ble Supreme Court has passed the following order on 04/07/2019:-

“Learned counsel for the petitioner has invited our attention to a decision of this Court dated August, 10, 2017 passed in Criminal Appeal No.1383

of 2017 titled as ‘Binod Kumar @ Binod Kumar Bhagat vs. The State of Bihar’ to buttress the contention that the offending item recovered

from the petitioner is not a banned item, for which reason the offence is not made out.

Obviously, this decision was not brought to the notice of the High Court.

It is open to the petitioner to file a fresh bail application or quashing petition, as the case may be, before the High Court if so advised, which, indeed,

will have to be decided on its own merits in accordance with law.

The special leave petition and pending applications are accordingly disposed of.

We make it clear that we have not expressed any opinion either way on the applicability of the decision placed before us and referred to aboveâ€​.

Counsel for the petitioner submits that 54 bottles of Win Cerex Cough Syrup containing Wings Rx Codein Phosphate & Triprolidine Hydrochloride

were recovered in the present case. He further submits that the contents of the bottles recovered from the petitioner are absolutely identical to the

cough syrups under the title of Corex having the same chemical composition. He further submits that the Coordinate Bench of this Court in the case

of Ravi Singh vs. State of Rajasthan (S.B. Criminal Misc. Bail No. 7109/2018), decided on 20/08/2018, has allowed the bail application wherein 200

bottles of cough syrup were recovered from the possession of the petitioner therein. Reliance has been placed on the judgment of Binod Kumar vs.

State of Bihar, 2017(4) RCR (Criminal) 125. The said judgment reads as under :-

“1. Leave granted.

The appellant, Binod Kumar @ Binod Kumar Bhagat son of late Krishna Kumar is facing trial for the offences punishable under Sections 272,

273/34 of the Indian Penal Code, Sections 27(b)(ii), 28, 36AC of Drugs & Cosmetics Act, 1940 and Section 22(C) of the Narcotic Drugs &

Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985). He has been in custody since 24.08.2016 in Araria P.S. Case No.

546 of 2016.

The prosecution has alleged that on 23.08.2016, a search was conducted at Azad Signature Not Verified Digitally signed by Transport Company

Pvt. Ltd., Sadakat Complex, Navratan Chowk, where 4000 bottles DEEPAK MANSUKHANI Date: 2017.08.11 16:59:48 IST Reason: of Corex

cough syrup containing codeine was recovered and on being asked, the accused appellant, who is running the said transport agency placed a

consignment note before the Drug Inspector but instead of the drugs shown in the consignment note, 40 cartons containing 100 bottles each of Corex

cough syrup (100 ml) having codeine was recovered and the accused did not show any documents with regard to such recovered cough syrup. The

prosecution further states that the drug was recovered from the godown being managed by the appellant.

Learned senior counsel appearing for the appellant submits that the drug which was recovered from the godown being managed by the appellant is

Corex syrup containing codeine which is being manufactured for the past 25 years. The Government of India issued notification dated 10.03.2016 in

exercise of power under Section 26A of the Drugs and Cosmetics Act, 1940 and sought to prohibit the manufacture, distribution and sale of 344 Fixed

Dose Combination (FDC) Drugs which included Corex. It is argued that the manufacturer and distributors of prohibited Drugs filed writ petition

before the High Court of Delhi and the High Court hold that the notification in question do not abide with the law and were quashed in writ petition (C)

No. 2212 of 2016 on 01.12.2016. It is further argued that in view of this development Corex containing codeine is within the permissible limit and is not

covered under the NDPS Act, 1985 and the Drugs and Cosmetics Act, 1946.

It is also argued that the appellant is only an employee (Manager) of Azad Transport Company Pvt. Ltd. The said company is engaged in the

business of transportation of goods. The consignee was Alsafa Surgical, Araria. The appellant is assigned with the duty of godown management.

We have also heard learned counsel for the respondent State, who has opposed the grant of bail.

According to the prosecution the Corex cough syrup has been recovered from the godown and the prosecution alleges that it has been recovered

from the appellant. It is evident that the Delhi High Court by order dated 01.12.2016 quashed the notification issued under Section 26A of the Drugs

and Cosmetics Act, 1940 which has sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose of Combination. The FIR was

registered on 23.8.2016. Be that as it may, the appellant has been in custody from 24.08.2016.

Having regard to the facts and circumstances of the case, we are of the view that it is just and proper to release the appellant on bail. Therefore,

we order the appellant to be released on bail on execution of his personal bond in sum of Rs. 25,000/- with two sureties in the like sum to the

satisfaction of the trial judge. We permit the trial judge to impose such conditions as he feels necessary for ensuring the appellant’s attendance on

the dates of posting in the trial court.

The order of the High Court dated 15.12.2016 in Criminal Miscellaneous No. 44301 of 2016 is hereby set aside and the appeal is accordingly

allowedâ€​.

He further submits that the petitioner is behind the bars for last more than one year and the charges have been framed in the present case. The

conclusion of trial will take sufficiently long time, therefore, it is prayed that the petitioner may be enlarged on bail.

Learned Public Prosecutor vehemently opposed the bail application.

Having regard to the totality of the facts and circumstances of the case and upon consideration of the arguments advanced on behalf of the petitioner

and State, without expressing any opinion on the merits of the case, I am of the opinion that restrictions contained in Section 37 of the N.D.P.S. Act

do not operate to the prejudice of the petitioner and therefore, I deem it just and proper to grant bail to the accused petitioner under Section 439

Cr.P.C.

Accordingly, the third bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Ashok Kumar S/o Shri Satyanarayan,

shall be released on bail in connection with FIR No. 27/2018, Police Station Purani Abadi, District Sri Ganganagar provided he furnishes a personal

bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/-each to the satisfaction of learned trial court for his appearance before

that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.