Bablu vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner seeks regular bail in FIR No.15/2023, registered under Sections 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (The Act for short) at Police Station Rohru, H.P. The petitioner is co-accused alongwith two other co-accused persons Kesar Singh & Devi Dass in the aforesaid FIR.

The prosecution case is that:-

2(i) On 29.01.2023 at around 2.00 P.M., a police party on routine checking duty in its jurisdictional area stopped a vehicle bearing No. HP10B-3126 coming from Adhaal side; The driver of the vehicle disclosed his name as Bablu (petitioner); His nervousness in answering queries of the police personnel raised suspicion of the officials who thought it fit to carry 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. out search of the vehicle; After associating independent witnesses, the vehicle was searched in accordance with law; The search led to recovery of 14 bottles of mark Rx Codeine-phosphate & Chlorpheniramine Maleate Syrup. Each bottle was marked to contain 100 ml of this syrup; The driver of the vehicle could not produce any licence/permit authorizing him to carry/transport the syrup. This recovery led to registration of the FIR in question and arrest of accused Bablu (petitioner).

2(ii) During interrogation, accused Bablu disclosed purchasing 40/50 bottles of aforesaid Cough Syrup from Kesar Singh. This disclosure led the officials to investigate Kesar Singh. His premises were searched on 30.01.2023. From the dicky of his vehicle, the police recovered 85 bottles of Rx Codeine-phosphate & Chlorpheniramine Maleate Syrup. Kesar Singh could not produce any documents authorizing him to store the recovered bottles. He was arrested on 29.01.2023.

2(iii) Kesar Singh, during investigation, stated having obtained the above mentioned Cough Syrup bottles from Devi Dass. Upon this, the police searched shops/stores of Devi Dass, but no incriminating material was found in his possession. The investigating agency, however, observed mis-match in the cash books maintained by accused persons Devi Dass and Kesar Singh and also traced number of phone calls exchanged between them. Accused Devi Dass was arrested on 02.02.2023.

3(i). Learned counsel prayed for enlarging the petitioner on bail primarily on the grounds that:- (i) the Cough Syrup compound allegedly recovered by the police from the petitioner does not fall within the definition of ‘manufactured drugs’ under the NDPS Act; The concentration of Methyl Morphine (Codeine) alleged to have been recovered by the respondent from the petitioner was not more than 2.5% in un-divided preparations and therefore in view of Entry No.35 in S.O. No.826 (E) dated 14.11.1985, cannot be said a manufactured drug falling under the provisions of NDPS Act. (ii) It was also submitted that the petitioner was arrested on 29.01.2023. A year has gone by. The respondent has completed the entire investigation qua the petitioner. Final report has been presented before the Court of competent jurisdiction. No object will be achieved by further detention of the petitioner. (iii) It was also pointed out that the other two co-accused persons have been enlarged on regular bail vide order dt. 01.03.2024 passed in Cr.MP(M) No.2619 & 3004/2023.

It was further submitted by learned counsel for the petitioner that the petitioner will abide by all the conditions, which may be imposed upon him in case of grant of bail and that he will not influence the witnesses or tamper with the prosecution evidence in any manner.

3(ii) Learned Deputy Advocate General while opposing the petition submitted that the case pertains to recovery of 14 bottles of Rx Codeine-phosphate & Chlorpheniramine Maleate Syrup from accused Bablu and 85 bottles from Kesar Singh (petitioner in Cr.MP(M) No.2619/2023). Each bottle contained 100 ml of this syrup. The drug falls within the definition of manufactured drug under the NDPS Act & is prohibited drug. Entire quantity of the recovered syrup is to be taken into consideration in view of the pronouncement of the Hon’ble Apex Court in Hira Singh and another Vs. Union of India AIR 2020 SC 3255. The quantity so recovered falls under the commercial quantity notified under the Act. The provisions of Section 37 of the NDPS Act get attracted. The petitioner has not been able to satisfy the conditions for grant of bail under the said section and therefore the petition deserves to be dismissed.

I have heard learned counsel for the parties and considered the case file as well as the record produced by the respondent. In my considered opinion, the petitioner has made out a case for his enlargement on regular bail at this stage, this is for the following reasons:-

4(i) On 29.01.2023, the petitioner was allegedly found in possession of 14 bottles (100 ml each) of Rx Codeine-phosphate & Chlorpheniramine Maleate Syrup.

It is the case of the respondent that the Cough Syrup contains Codeine, therefore, it falls within the definition of ‘manufactured drugs’ under the NDPS Act. The quantity of the entire Syrup is to be taken into consideration, which makes the recovered quantity fall under the commercial quantity indicated under the NDPS Act.

4(ii) For considering the case of the petitioner viz-a-viz grant of bail, at this stage it will be appropriate to notice the definition of manufactured drugs as given in Section 2(xi) of the NDPS Act:-

“2. Definitions……..

………………….

………………….

………………….

(xi) “manufactured drug” means

(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug;

but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drugs.”

In exercise of powers conferred by Section 2(xi)(b) of the NDPS Act, the Central Government issued a notification S.O. 826(E) dated 14.11.1985 declaring narcotics substance and preparation mentioned therein to be manufactured drugs. At Entry No.35 Methyl Morphine (commonly known as Codeine) figured as under:-

“(35) Methyl morphine (commonly known as ''Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice."

4(iii) As per Entry No. 35 Codeine with all its dilutions and preparation is considered to be a manufactured drug except those which are compounded with one or more other ingredients and contain not more than 100 miligrams of the drugs per dosage unit and are with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice. Important aspect to notice here is that concentration of Codeine dilution and preparation has to be more than 2.5% in undivided preparation for the drug (Methyl Morphine) to be termed as manufactured drugs under the NDPS Act. Drug Codeine, which was earlier included in Schedule H under the Drugs and Cosmetics Rules, 1945 was inserted under Schedule H1 by GSR 588 (E) dated 30.08.2013 (w.e.f. 27.02.2014). This aspect was also highlighted by the Drug Controller General of India (DCGI) in its circular dated 26.10.2005, which reads as under:-

“As you are aware there are number of Cough preparations like, Corex of M/s. Pfizer Limted, Mumbai; Phensedyl of M/s Nicholas Piramal India Limited, Mumbai, Codokuff of M/s German Remedies, Codeine Linctus of M/s. Zydus Alidaç etc. moving in inter state commerce. These preparations contain among other drugs Codeine Phosphate 10mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and it salts they do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule H of the Drugs & Cosmetics Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985 however these formulations are prescriptions drugs and are to be dispensed on the prescription of a registered Medical Practioners only. Further you may be already aware that under notification number S.O. 826 (E) dated 14th Nov. 1985 under the Narcotic Drugs and Psychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted. In respect of Codeine under entry no. 35 it is stated that the Codeine and Ethyl Morphine and their salts including Dionine all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosages unit and with a concentration of not more than 2.5 percent m-undivided preparations and which have been established in therapeutic practice.”

The above position was reiterated by the DCGI in another circular issued on 13.03.2009. Thus Codeine, Ethyl morphine and their salts including dilutions and preparation, which are compounded with one or more other ingredients and contains not more than 100 miligrams of the drugs per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice do not fall under the definition of manufactured drugs but fall under Schedule H/H1 of the Drugs & Cosmetics Rules, 1945.

4(iv) The respondent has produced the record containing the test report of State Forensic Science Laboratory, Himachal Pradesh (SFSL), pertaining to the result of the examination of the samples sent by the respondent in the FIR in question. Though as per the report, the test performed on the samples indicated presence of Codeine Phosphate, however, as of now, there is nothing to indicate as to whether the concentration of the drug met the requirements mentioned in Entry No.35 of S.O. 826 (E) dated 14.11.1985. In fact concentration or percentage has not been indicated in the SFSL report. No document countering this observation was brought to my notice by the respondent at this stage. Therefore, prima-facie at this stage, it cannot be said with certainty that the drug recovered from the petitioner was a ‘manufactured drug’ under the NDPS Act. This is something, which prosecution will have to prove during trial. Benefit of this gap at present deserve to be extended to the petitioner in the given facts & circumstances of the case.

4(v) Petitioner is though accused of possessing commercial quantity of the manufactured drug Codeine. However, above observations at this stage of consideration of bail petition prima-facie tilt the scale in favour of granting bail to the petitioner. More so when respondent has yet to establish that recovered prohibited drug actually falls within the definition of manufactured drug under the NDPS Act or under any other provision of the NDPS Act and the Rules framed thereunder. No contention other than discussed above was raised by the respondent at this stage. These aspects are to be gone into & adjudicated by the learned Trial Court after appreciating the evidence adduced by the parties. However, there exists reasonable ground for recording prima -facie satisfaction at this stage that the petitioner might not be guilty of the offences alleged against him in the FIR. No criminal history of the petitioner has been indicated in the status report. The petitioner is behind the bars for the past more than a year. In the given factual position, his further detention is not warranted. The investigation is complete. Challan stands presented before the competent Court. No recovery is to be effected from him. Co-accused persons Kesar Singh and Devi Dass have already been enlarged on bail. There is no ground to believe that in case of release on bail, the petitioner will indulge in committing similar offences. This bail application is accordingly allowed. Petitioner is ordered to be released in the above mentioned FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with two local sureties in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:-

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law;

(ii). Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

(iii). Petitioner will not leave India without prior permission of the Court;

(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law;

(vi). Petitioner shall inform the Station House Officer of the concerned police station about him place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of their Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any; &

(vii). In case in future, the petitioner is found to be involved in any criminal activity then the instant bail is liable to be cancelled at the instance of investigating agency.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the main matter without being influenced by any of the above observations.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.