Jitendra Hirvay vs State of MP

Heard.

This first application under Section 439 of Cr.P.C. for grant of bail has been filed by the applicant â€" Jitendra Hirvay S/o Radheshyam Hirvay,

who is implicated in Crime No.269/2018 registered at Police Station Chandan Nagar, Indore for the offence punishable under Section 8/22 of the

NDPS Act and is in custody since 04.04.2018.

As per prosecution story on 04.04.2018, police received a secret information from the informant that on Dhar road in front of Sirpur Lake near

public toilet, one person is standing with Alprazolam tablets. Thereafter, they prepared necessary panchnama and reached on the spot and called two

independent witnesses. Later on, as per the information, they saw one person and they stopped him and intimated the information received from the

informant and searched the accused persons. Thereafter, police found 10,800 tablets from the possession of the present applicant. Following the

procedure, the police seized the contraband.

Learned Senior Counsel for the applicant has submitted that this Court on 15.03.2017 in M.Cr.C. No.1338/2017 and M.Cr.C. No.1700/2017 allowed

the prayer for grant of bail. In the aforesaid matter, total 13,440 tablets have been recovered from the accused therein.

After investigation, charge sheet has been filed and, therefore prays that this application for grant of bail be allowed and he be released on bail.

On the other hand, learned Public Prosecutor for the non-applicant opposed the prayer and submits that the Coordinate Bench of this Court in the

case of Nilesh @ Nilkamal vs. State of MP (M.Cr.C. No.26037/2018), Sandeep Sugandhi vs. State of MP (M.Cr.C. No.22224/2018) amd Sobhag

Singh vs. State of MP (M.Cr.C. No.22225/2018) rejected all the three applications vide orders dated 10.07.2018 and 09.07.2018 respectively and

prays for rejection of this bail application. Relevant part of orders dated 10.07.2018 and 09.07.2018 reads as under :-

10.07.2018

Learned counsel for the applicant, at the first instance, tried to impress upon this Court that it is not the gross weight of the tablets which has to be

taken into consideration but, the net weight of the obnoxious substance has to be taken into account i.e. psychotropic substance. According to him,

each tablet contained 2700 mgs. and, therefore, if it is multiplied with the numbers of tablets seized, the quantity of the alprazolam substance shall not

be more than 5 gms. Since the seized article found to be in possession of the applicant is less than the small quantity i.e. 5 gms., therefore, it is a minor

offence and punishable only for six months under sections 8 and 22 of NDPS Act. Learned counsel has relied upon the judgment of Hon'ble Supreme

Court in the case of Gaunter Edwin Kircher vs. State of Goa; AIR 1993 SC 1456 to bolster his submission. Learned counsel also submits that since

only six tablets were sent for chemical analysis where alprazolam substance was found, the rest of the tablets could not be said to be containing the

same substance. Even otherwise, no case is made out for prosecuting the applicant under sections 8 and 22 of NDPS Act. Hence, the applicant

deserves to be enlarged on bail.

Learned Public Prosecutor for the respondent/State supported the order impugned and opposed the bail application with the contention that the

applicant is found to be in possession of so many tablets containing alprazolam substance. The Hon'ble Supreme Court has reiterated the law in the

case of Union of India and Anr. vs. Sanjeev V. Deshpande; 2014 1 MCRC-26037-2018 Cr.L.R. SC 896 wherein it has been held that the gross

weight of the drug is to be counted and not merely the net percentage/contents of the salt in the medicinal preparation for finding out the actual weight

of the psychotropic substance in reference to the schedule under the NDPS Act. Hence, the first argument so advanced is in ignorance of the law laid

down by the Hon'ble Supreme Court. He further submits that though only six tablets were sent for chemical analysis, this by itself, shall not justify that

the tablets found to be in possession of the applicant did not contain the alprazolam substance. In fact, it was only for specimen testing of the said

tablets sent for chemical analysis. However, in the course of time, the entire bulk of the tablets shall be sent for chemical analysis. In any case, today

the matter is only posted for consideration of bail application. As such, the aforesaid contention shall not hold water for the purpose of consideration of

bail application.

It is submitted that the Narcotics Drugs and Psychotropic Substance Act has been enacted to checkmate illicit drug trafficking and drug abuse at

national and international level. The offence of the nature in hand is on rise and have caused serious imbalance in social order. The youth of this

country is becoming drug addict through the aforesaid camouflaged medicines/tablets giving rise to serious question-mark in the growth and

development of young India. Such nefarious activities of holding and selling the alprazolam substance in the form of tablets, if not checkmate, it shall

spread the drug addiction in the youth like a cancerous disease. Hence, if in the event the applicant is enlarged on bail, at this stage, the message to

society shall be vulnerable in public domain. With the aforesaid submissions, learned counsel prays for rejection of bail application.

Having heard the counsel for the parties and upon consideration of the judgment cited by learned counsel for the parties, in the opinion of this Court, in

the light of law laid down by Hon'ble Supreme Court in the case of Union of India and Anr. (supra), it is not the net percentage/contents of alprazolam

substance in medicinal to be taken into consideration to find out the actual weight of the drugs in reference to the schedule under the NDPS Act.

Though this Court refrains from commenting upon merits of the contentions of rival parties but, in the light of such law, the first contention does not

hold water and deserves to be rejected. So far as, the second contention is concerned, at this stage, since, the prosecution can always sent the

remaining tablets for chemical analysis as has been stated at Bar by the Public Prosecutor, the argument that since only six tablets were sent for the

chemical analysis, therefore, applicant is not liable for prosecution cannot be accepted. Accordingly, the second contention is also rejected.

In the obtaining facts and circumstances and the fact that the applicant is found to be in possession of 5400 alprazolam tablets and in custody only for

2 & 1/2 months, the application is hereby dismissed, at this stage.

09.07.2018

According to entry No. 178 of the notification No.S.O. 2941(E) dated 18/11/2009 by which notification No. S.O. 1055 (E) dated 19.10.2001 has

been amended small and commercial quantity for alprazolam is 5 & 100 grams respectively. As per note 4 inserted at the end of this notification, for

the purpose of determining the quantity, the gross weight of the drug recovered and not the pure content of the psychotropic substance shall be taken

into consideration. Note 4 reads thus:

(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or

any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ether and salts of

these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.

The aforesaid notification is considered by the Hon'ble Supreme Court in Harjit Singh Vs. State of Punjab reported in 2011 Cr.L.R. (SC) 355. It is

held that while considering the quantity of the psychotropic substance, the whole quantity is to be taken into consideration.

The Hon'ble Supreme Court in the case of Union of India and Anr. Vs. Sanjeev V Deshpande, reported in 2014 Cr.L.R. SC 896 (2014) 13 SCC 1

: (AIR 2014 SC 3625), considered the controversy as to whether the contents of psychotropic salt in the tablets could be separately counted for

calculating the weight or volume of psychotropic substance in medicinal preparation. The Supreme Court turned downed the contention and held that

the gross weight of the drug is to be counted and not merely the net percentage/contents of the salt in the medicinal preparation for finding out the

actual weight of the drugs in reference to the schedule under the NDPS Act.

Same view has been taken by the Hon'ble Suprme Court in the case of Shahabuddin and Ors. Vs. State of Assam, passed in Criminal Appeal

No.629/2010 decided on 13/12/2012 reported in 2012(11) JT 310 (2013 AIR SCW 817). While considering the similar argument, the Court held that :

At the very outset, the abovesaid submission of the Learned Counsel is liable to be rejected, inasmuch as, the conduct of the appellants in having

transported huge quantity of 347 cartons containing 100 bottles in each carton of 100 ml. Phensedyl cough syrup and 102 cartons, each carton

containing 100 bottles of 100 ml. Recodex cough syrup without valid documents for such transportation cannot be heard to state that he was not

expected to fulfill any of the statutory requirements either under the provisions of Drugs and Cosmetics Act or under the provisions of the N.D.P.S.

Act.

It is not in dispute that each 100 ml. Bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg. of codeine phosphate and the each 100 ml.

bottle of Recodex cough syrup contained 182.73 mg. Of codeine phosphate. When the appellants were not in a position to explain as to whom the

supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid

explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate

beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.

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 4 notifications in order to consider the appellants' application

for bail by the Courts below does not arise.

Co-ordinate Bench of this Court in MCRC No.20360/2018 order dated 28/05/2018 and in MCRC No.11448/2016 order dated 13.12.2016 has

taken the same view. Following the judgements of Hon'ble the Supreme Court passed in Sanjeev V Deshmukh & Mohd. Shahbuddin cases (supra)

the Rajsthan High Court has also taken the same view in the case of Ravi alias Ravikant Vs. State of Rajasthan reported in 2016 CRI. L. J. 3309 that

gross weight is to be considered for calculation of commercial quantity.

Thus, it is evident that the whole quantity of material recovered in the form of mixture is to be considered for the purpose of determining the

quantity of psychotropic substance and when the psychotropic drug is kept in possession without any document showing that it was meant for

therapeutic use and the gross weight of psychotropic substance is well above the commercial quantity, the restriction contained in Section 37 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) is directly applicable to the case of the petitioners. Nothing is on record to satisfy

the conditions enunciated in this Section. Therefore, the petitioners are not entitled to be released on bail.

Consequently, both the petitions are dismissed hereby. A copy of this order be kept in MCRC No.22225/2018 for record.

Learned Senior Counsel for the applicant has submitted that that the decision on which reliance has been placed by the counsel in the case of

Nliesh @ Nilkamal (supra) i.e., Gaunter Edwin Kircher vs. State of Goa reported in AIR 1993 SC 1456 and Union of India & another vs. Sanjeev V.

Deshpande reported in 2014 Cr.L.R. SC 896, will not be applicable in the present facts and circumstances of the case and prays for grant of bail.

Considering the fact that huge quantity of Alprazolam (10,800 tablets) has been recovered from the possession of the present applicant and at that

relevant point of time, he was not having any valid license to carry the same, no case for grant of bail, as prayed is made out. M.Cr.C. No.25164/2018

has no merit and is accordingly, dismissed.