Jaswant Singh @APPELLANT@Hash State of Himachal Pradesh

Sureshwar Thakur, J.

The instant petition, warrants, an, adjudication being meted, vis-a-vis, (a) the aggregate or the total, of, the banned narcotic substance, rather

comprising the apposite parameter, for, making a further determination, qua, thereupon, the purported recovery(ies), from, the alleged conscious and

exclusive possession of the petitioner, being amenable, for, being categorized, as, (a) commercial quantity or more than commercial quantity thereof,

(b) AND the aggregate or the gross weight, of, the entire contents, as, carried in the recovered narcotic substance/charas, likewise constituting the

reckonable parameter, for making the apt determination, qua effectuation, of recovery(ies) thereof, from, the exclusive, and, conscious possession, of,

the accused, being, hence construable to be (i) small quantity or (ii) more than small quantity or (ii)commercial quantity thereof.

In FIR No. 18 of 2018, registered against accused/petitioner herein, the FSL concerned (i) qua the 1kg 300 grams of charas allegedly recovered,

from, the exclusive and conscious possession of accused Jaswant Singh and Kuldeep Singh, has opined, that the quantity of the purefied resin as found

in the exhibit stated as cannabis is 43.01% w/w, hence, prima-facie, the pure content thereof, of, resin as extracted from bulk thereof, falls within,

domain, of, less than, the commercial quality thereof, (ii) yet the aggregate weight, of, the narcotic substance/charas, as, recovered from the exclusive

possession of the accused, without segregating therefrom, the pure contents, of, purified resin renders, the apposite haul, to fall, within, the domain, of

it being construable to be categorized, as, more than commercial quantity, of charas (iii) thereupon reiteratedly also an adjudication, is to be meted qua

any apt pure contents thereof, hence, comprising the apt parameter(s).

Mr. Shivank Singh Panta, learned counsel appearing, for the petitioner, contends, that, with hence cannabis resin, at serial No.23 of, the table

appended, with, the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act), and, with a clear, and, candid

prescription, borne therein, wherein rather 100g, is specified, as, small quantity thereof, (i) hence, the aggregate quantum only of purified resin, as,

borne in the seized bulk of charas, alone, being construable, to be the apt reckonable principle, for making the further determination, vis-a-vis, the

narcotic substance/charas recovered, from the exclusive and conscious possession, of the accused, dehors, the total bulk of charas, hence, falling or

not falling, within the domain, of, small or more than small or commercial quantity thereof, (ii) specifically, when the table, with, clear explicit hence

refers to cannbis, and, omits to make any explicity reference therein, vis-a-vis, the other part of the charas, carried in the seized charas, rather, being

also reckonable, nor , with, the total or aggregate, whereof, of, the entire milli-gram, carried in the seized charas, being mandated to comprise, the

justifiable principle, hence, for making, the apt reckoning qua, the seizure falling within the domain of small quantity or more than small or commercial

quantity thereof.

In making the aforesaid submissions, the learned counsel, appearing for the petitioner, has placed reliance, upon, the verdict pronounced, by, the

Hon'ble Apex Court, in a case titled as E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008)5 SCC 161, the relevant

paragraph No.19 whereof stand extracted hereinafter:-

“16. On going through Amarsingh case (2005)7 SCC 550, we do not find that the Court was considering the question of mixture of a narcotic drug

or psychotropic substance with one or more neutral substance/s. In fact that was not the issue before the Court. The black-coloured liquid substance

was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of

bringing the substance within the sweep of Section 2(xvi)(e) as `opium derivative which requires a minimum 0.2% morphine. The content found of

2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity

and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance/s. Thus,

Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned counsel for therespondent that the entire

substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of

Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropic substance

is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic

substance which shall be taken into consideration. â€​

(a)wherein an affirmative view has been pronounced, (i) vis-a-vis any narcotic drug, and, psychotropic substance(s), upon, theirs being found rather

mixed with one or more neutral substance(s), thereupon, for the purpose of imposition of punishment, only the weight, of, pure contents of the narcotic

drug, and, the weight, only of, the psychotropic substance, being the alone reckonable besides the apt parameter(s).

The learned counsel appearing for the petitioners also placed reliance, upon, a judgment of the Hon'ble Apex Court, rendered, in a case titled, as,

Mohd. Sahabuddin and another vs. State of Assam, reported in (2012) 13 SCC 491, relevant paragraph(s) No.11 and 12 whereof, stand extracted

hereinafter:-

“11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml. bottle if related to the

permissible dosage, namely, 5 ml. would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as

stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin

conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per dose unit and with a concentration of

not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic

practice as per dictionary meaning means ‘contributing to cure of disease’. In other words, the assessment of codeine content on dosage basis

can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an

action of remedial agent.

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 N.D.P.S. 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.â€​

(a)wherein it stands expostulated, qua, for the accused/bail applicant concerned, deriving, the benefits, of, notifications respectively issued, on

14.11.1985, and, on 29.1.1993, it being incumbent, for them to establish (a) the twin conditions qua the contents of narcotic substances imperatively,

not, exceeding 100 mg per dose unit, (b) and with a concentration of, not, more than 2.5% in undivided preparation, and, apart therefrom, the other

condition, of, it being evidently transported, only for therapeutic practice i.e. for contributing to cure of disease, also, necessitating, its, imperative

satisfaction. However, the reliance placed thereupon, is inapt, for the reasons (i) the counsel not bearing in mind the trite factual matrix, as,

appertaining to the case supra, as, occurs in preceding paragraph No.10 thereof, wherein, there is a trite display, of the apt recovery, effectuated,

from, the accused therein, being vis-a-vis bottles of Phensedyle cough syrup, whereinwithin existed, hence, 183.15 to 189.85 mg of codeine phosphate,

and, each 100 ml bottle of Recodex cough syrup, also, contained 182.73 mg of codeine phosphate, (ii) AND obviously, even after, multiplying the

aforesaid quantum of codeine phosphate, as, carried in each 100 ml., bottle(s) of Phensedyle cough syrup, and, of Phensedyl, with the respective

numerical strength, of, the respective cache, of, bottles, thereupon, also the level of the banned narcotic drug, namely, codeine phosphate, being, in a

quantum, whereupon, obviously the carrying thereof, of, even pure contents of codeine phosphate, as, borne in the cache, of, seized bottles, of,

Phensedyle cough syrup, and, of Recodex cough syrup, is rendered hence, to fall within the ambit, of, commercial quantity thereof, (iii) hence, in

succeeding paragraph No.12, the Hon'ble Apex Court, had propounded that, yet, with a notification of 14.11.1985, and, of 29.1.1993, enjoining upon

the accused, to satisfy the aforesaid twin conditions, and, the material thereat also evidently, bearing out, qua its being transported, for therapeutic

practice, thereupon, alone all the benefit(s) thereof, being accruable, vis-a-vis, the accused. Contrarily, obviously the level or extent or quantum, of the

pure content, of the banned narcotic drug(s), namely, codeine phosphate, as, carried, in each, of the seized bottles, after, segregating therefrom hence

the contents of the other part of the mixture, borne in each of the bottle(s), renders, the, apt quantum thereof, to, fall within small quantity thereof,

(iv) thereupon, hence the ratio decidendi, propounded, in the aforesaid case, being unavailable for bestowal upon the accused herein, (v) more so when

neither the notifications alluded therein, are, espoused hereat, for deriving, the, apposite benefits thereof, nor the twin conditions embodied, therein, are,

hereat propagated nor when the extant cache, is, espoused, to be transported, only for therapeutic use, rather is a narcotic drug, than a psychotropic

substance, as was thereat. Consequently, reliance upon the case supra, is, inaptly placed. Contrarily, the factual scenario prevailing hereat, is, covered

by the pronouncement, made, in E. Micheal's case (supra), given the afore verdict answering with aplomb the conundrum qua (a) upon any narcotic

drug or psychotropic substance being found standing mixed with one or more neutral substance/s, thereupon for the purpose of imposition of

punishment, the pure content of the narcotic drug or psychotropic substance, alone comprising the apt reckonable parameter, b) AND when hereat,

the, resin content is the apposite pure content of charas, thereupon the afore pure content, is, the apt reckonable parameter, for granting bail .

The learned counsel appearing for the petitioner also places reliance, upon, a judgement of the Hon'ble Apex Court, rendered in a case titled, as,

Harjit Singh vs. State of Punjab, (2011)4 SCC 441, (i) wherein, vis-a - vis, the seizure of 7. 10 kg of opium, as, effectuated, from, the exclusive and

conscious possession of the accused therein, and, with its being opined, to contain 0.8% morphine, it standing expostulated qua hence the entire mass

or gross weight, of the opium rather being the apt reckoner, dehors the percentum of morphine, occurring therein. (ii) It has also been expostulated,

therein that the entire quantity or the gross weight, of the entire ill substance, being rather recknonable, for making the further apt determination, qua

whether the recovered substance, hence falling within small quantity or greater than small quantity or commercial quantity thereof. The apt paragraph

No.21 of Harjit Singh's case (supra), stands extracted hereinafter,

“21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for

personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of

the NDPS Act and was rightly convicted under Section 1018(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of

the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated

juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance

from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry

No.92 becomes totally redundant. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so,

opium derivatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the

quantity of morphine is not required. Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of

small quantity or commercial quantity.â€​

(iii) Though evidently, the seized contraband i.e. opium, did, contain some per centum of morphine, yet therein, it, has also been propounded, that the

existence, of, some per centum of morphine therein, being an irrelevant factor, for determining qua hence the substance or contraband seized, from,

the exclusive and conscious possession of the accused therein, being construable to be opium, rather the entire quantum, of, the narcotic drug or

substance, as, recovered from the exclusive and conscious possession of the accused therein, being the solitary apt determinant, (iii) thereupon also the

aforesaid, expostulation, does not give any leverage to the espousal, of, the counsel for the bail applicants, rather contrarily support therefrom, is,

derived by the State, for contending that the gross weight or the aggregate, of the entire contrabend, borne in the apt narcotic substances, as

recovered, from the conscious and exclusive possession, of the accused, being, the only recknonable factor, for making the apt determination.

The learned Addl. Advocate General submits, that with notification bearing S.O.2941(E) of 18.11.2009 whereunder Note 4 in the table, at the end

of Note 3, is added, (i) with a prescription therein, qua the quantum or the level of presence, of, the pure banned narcotic drug, in, the seized cache,

being the singular, reckonable parameter, for making an apt determination, of, quantification thereof, thereupon, the espousal addressed before this

Court, by the counsel for the petitioners, hence, rather warranting rejection. The aforesaid submission, is anvilled, upon, a verdict pronounced by the

Hon'ble Apex Court in Cr. Appeal No. 722 of 2017, titled as Hira Singh & Anr. vs. Union of India, decided on 3.07.2017, whereunder, the hereinafter

extracted questions, stand referred, for determination, by a larger Bench of the Hon'ble Apex Court, and, more particularly with the apt reference,

appertaining, vis-a-vis, the legal expostulation settled by the Hon'ble Apex Court in E. Micheal Raj's case (supra), being or not being per incuriam, vis-

a-vis, the notification of 19.10.2001, rather hence awaiting rendition thereon, thereupon, the benefits of all the trite expostulations, borne in, E. Micheal

Raj's Case (supra) being not affordable, to the bail petitioners,

“(a) Whether the decision in this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry No.239 and Note

2(two) of the notification dated 19.10.2001 as also the interplay of other provisions of the Act with Section 21?

(b) Does the impugned notification issued by the Central Government entail the redefining the parameters for constituting an offence and more

particularly for awarding punishment?

(c) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the

basis of the actual drug content of the specified narcotic drug?

(d) Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with “manufactured drug†and

“preparationâ€​ containing any manufactured drug?

However, the aforesaid submission is rejected, for the reasons, (ii) qua nowat, with, the larger Bench of the Hon'ble Apex Court, not making any

pronouncement, upon the afore-extracted questions, as, referred thereto, (ii) AND in aftermath, with, the vires of the apt notification standing not

upheld nor reversed nor the verdict pronounced by the Hon'ble Apex Court, in, E. Micheal Raj's case (supra), with, the afore applied clear

expostulations (supra) occurring therein, standing neither quashed nor set aside, thereupon, dehors any apt non-rendition thereon , it is not deemed just,

fit and appropriate, to curtail the liberty of the bail petitioners. Paramountly also any benefit, strived to be derived by the prosecution, from, Harjit

Singhâ€​s case (supra) cannot prevail, given (a) the reference to the larger Bench, appertaining to not, the, afore verdict, rather appertaining, vis-à -vis,

the premier initial verdict rendered in E. Michael Raj’s case (supra), verdict whereof is directly attractable, vis-à -vis, the controversy at hand, b)

thereupon, till the apt reference made to a larger Bench, vis-à -vis the efficacy of the pronouncement, occurring in E. Michael Raj’s case, stands

answered, and whereunder the verdict rendered in E.Michael Raj’s case is annulled, (c ) thereupto the clout and efficacy, of the verdict rendered

in E.Michael Raj’s case remains intact, d) AND also only the afore verdicts’ efficacy, is to be nowat tested, than, of Harjit Singh’s case

(supra), efficacy whereof has remained un-referred to the larger Bench, (e) and till the comparative efficacies of both, the afore verdicts are

determined by the larger Bench, hence it is deemed fit to nowat follow the decision in E.Michael Raj’s case (supra). (f) Even otherwise, the trite

factum of pure content of the relevant narcotic drug being or not, the relevant apt reckonable parameter, when stands earlier decided in E.Michael

Raj’s case, by a Bench strength holding a numerical strength co-equal, to the one which rendered, the, subsequent verdict in Harjit Singh’s

case (supra) (g) and when the afore earlier pronouncement, as made, vis-Ã -vis the controvery at hand, may prima - facie, on the principle of

propriety be binding on the subsequent Bench of the Hon’ble Apex Court, holding a Bench strength, co-equal to the earlier Bench strength, which

rendered a verdict, in, Michael Raj’s case (supra), (h) thereupon also till the comparative merit of both the verdicts (supra) are evaluated by a

larger Bench, it is deemed fit to follow the initial premier verdict rendered in E. Michael Raj’s case (supra).

Consequently, the petition is allowed, and, the bail petitioner is ordered to be released, on bail, subject to his complying with the following conditions:

(i) that the bail applicant shall furnish personal bond in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of the learned

Special Judge (II), Mandi.

(ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency;

(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him from disclosing such facts to the Court or to any police officer;

(iv) that he shall not leave India without the prior permission of the Court ;

(v) that he shall deposit their respective passports, if any, with the Police Station concerned; and

(vi) that in case of violation of any of these conditions, the bail granted to the petitioners shall be forfeited and he shall be liable to be taken into

custody.

Any observation made hereinabove, shall not, be taken as an expression of opinion on the merits, of the case, and, the trial Court shall decide the

matter uninfluenced by any observation made hereinabove.