Karan Sharma vs Union Of India & Anr

Indermeet Kaur, J

This order shall dispose of both the aforenoted petitions.

Criminal revision petition (No. 962/2017) has assailed the order of charge passed by the trial court dated 25.10.2017 wherein the court was of the

view that the petitioner is prima facie guilty of an offence under Section 21(C) of the NDPS Act, 1985 as also under Section 23(C) read with Section

28 of the said Act. The prima facie finding returned was that on 15.09.2016 at about 3.00 pm at the departure hall of the IGI airport the petitioner who

was intending to depart from Delhi to New York by Air India flight No. A1-101; on search of his checked-in baggage it was found to contain 300

bottles of “Chlorpheniramine Maleate & Codeine Phosphate Cough Linctusâ€, “Phensedyl Cough Linctus 50 ml each†and equivalent to

18,388.50 gms; a preparation of a narcotic drug (codeine) and the petitioner intending to export the said commercial quantity of the drug was found

prima facie guilty of the aforenoted offences.

Bail application (No. 891/2017) seeks a bail qua the petitioner. It is stated that the petitioner is in custody since the date of his arrest i.e., since

14.09.2016. The charge sheet has been filed against him and the charges under the aforenoted sections (noted supra) have been levelled against him

vide the order now impugned in the criminal revision petition No. 962/2017. Submission being that the petitioner is at best guilty of having been found

to be in possession of an intermediate quantity of the aforenoted drug (codeine) and as such he is entitled for consideration of grant of bail.

A status report has been filed by the State/the CBI in the bail application. No separate status report / reply has been filed in the revision petition.

Learned counsel for the CBI submits that this report filed by him in the bail application may be treated as his reply to the revision petition as well.

Learned counsel for the parties have both relied upon the dicta laid down by the Apex court in the judgment reported as 2012 (13) SCC 491, Mohd.

Sahabuddin & Anr vs State of Assam. Counsel for the petitioner points out that this judgment was passed on similar facts; in this case also there was

a recovery of Phensedyl cough syrup bottles from the petitioner; although bail had been refused to the petitioner for the reason that a truck load of the

offending bottles were recovered from the said petitioner; (34700 being the exact quantity) but the High Court of Assam had arrived at a calculation

based on the concentrated quantity of the narcotic drug which has been reflected in para 6 of the judgment; this has been extracted by the Apex court

and has not been disturbed; meaning thereby that it is the concentrated quantity of the drug which has to be taken into account for the purposes of

determination as to whether the alleged illegal possession was a small quantity; intermediate quantity or a commercial quantity. Attention has been

drawn to the Notification (dated 16.07.1996) of the Ministry of Finance; the Narcotic Drug Codeine appears in column 28; a small quantity is 10 gm

and more than 1 kg alone would quantify as a commercial quantity. In the instant case what has allegedly been recovered from the petitioner is 300

bottles of Phensedyl cough Linctus which contains a concentrated quantity of 30 gms of codeine and thus being lesser than the commercial quantity of

1 Kg it would fall within the ambit of an intermediate quantity; the bar and embargo contained in Section 37 of the NDPS Act is not attracted. To

further explain this submission, learned counsel for the petitioner has placed reliance upon a judgment delivered by a Special Judge passed in the case

of the NCB vs Md. Tabrez Ansari, Case No. SC 9563/2016; submission being that in this case also where the accused was in possession of 150

bottles of 100 ml containing Phensedyl cough syrup; the court had prima facie noted that it would amount to 10 mg of codeine phosphate of every 5 ml

dosage; it would be 30gm of codeine phosphate in total. The same calculation should apply in the instance case; also keeping in view the judgment

delivered by the Apex court in Mohd. Sahabuddin (supra), a calculation based on the concentrated content of the narcotic drug not having disturbed by

the Apex court, this is a clear case of a prima facie recovery only of an intermediate quantity and at the cost of repetition a case for bail is made out

qua the petitioner.

Per contra the respondent has negated this submission.

Record shows that the petitioner at the departure hall of the IGI airport was found to be in possession of the 300 bottles of Phensedyl cough

Linctus. His disclosure statement had been recorded. He admittedly had no license to carry this drug/export it outside the country. He was also

admittedly not a stockist of the drug. He had no bill or invoice for the recovered bottles. He was only a lay man. The only answer (in terms of his

disclosure statement recorded under Section 67 of the NDPS Act) was that he wanted to sell this drug in the open market in the foreign country.

This court notes that wide an amendment by S.O 2941 (E) dated 18.11.2009 the following note has now been appended to the Notification dated

16.07.1996. This note reads herein as under:-

“4. The quantities shown in column 5 and column 6 of the Table relating to the respective drug shown in column 2 shall apply to the

entire mixture or any solution or any one or more narcotic drug or psychotropic substances of that particular drug in dosage from or

isomers, esters, ethers 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.â€​

Thus it is the entire mixture of the particular drug and not just it is pure drug content which has now to be taken into account to determine as to

whether the quantity recovered from the alleged offender falls into a small quantity or a commercial quantity. Note 4 of this notification was not

considered in the judgment of Md. Sahabuddin (supra) by the Apex Court as this contention was never raised. Moreover, the Apex court had only

reproduced the calculation arrived at by the High Court of Assam; it did not have an occasion to discuss as to whether this calculation (relating to the

concentrated amount) was correct or incorrect. On the face of it in terms of note 4 of the aforenoted notification, the entire mixture of the drug and

not its concentrated form i.e, its pure drug content which has to be taken into account for the purposes of determination as to whether what had been

recovered from the petitioner was a small quantity or a commercial quantity.

This Court has been informed by the parties that even otherwise the question whether the entire drug or only its concentrated content has to be

considered for determination as to whether the alleged recovery was a small or a commercial quantity is an issue which has been referred to the Full

Bench of the Apex Court and this reference is yet to be answered.

The CBI had also sent the recovered drug to CRCL who had vide its report dated 27.10.2016 opined that the entire weight of the liquid comes to

18.388 kg which is a commercial quantity. The petitioner admittedly had no valid license under the Drug and Cosmetic Act, 1940. He did not have any

invoice or bill showing that he had purchased this drug for any legal purpose. This is also not his case. It is also not his case that this transportation

was being effected for any therapeutic purpose. The embargo of Section 37 of the NDPS Act which is couched in the negative language and which

requires the satisfaction of twin requirements not having been satisfied by the petitioner, the petitioner cannot be considered for bail.

Section 37 of the NDPS had been considered by the Apex Court in the judgment of NCB vs Kishan Lal, 1991 (1) SCC 705. The court had noted

that this Section starts with a non-obstante clause.

“6.....As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in

the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions

contained therein are satisfied. Consequently, the power to grant bail under any of the provisions of the CrPC should necessarily be subject

to the conditions mentioned in Section 37 of the NDPS Act.â€​

This position has been reaffirmed by the Apex Court time and again in a catena of judgments. In this background, the revision petition is without

merit. It is dismissed.

Since the petitioner is prima facie guilty of illegal possession of a commercial quantity of a prohibited drug, he is also not entitled to be considered

for bail at this stage.

Bail application is also dismissed.