Kaushalya Devi vs State of Punjab

Mehinder Singh Sullar, J.—Petitioner Kaushalya Devi wife of Ramesh Kumar, has preferred the instant petition for the grant of concession of regular bail in a case registered against her along with her other co-accused, vide FIR No. 27 dated 24.3.2013 (Annexure P2), on accusation of having committed an offence punishable u/s 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as "the NDPS Act") by the police of Police Station Lambi, District Sri Muktsar Sahib (Punjab).

Notice of the petition was issued to the State.

After hearing the learned counsel for parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the present petition in this context.

Ex facie, the celebrated arguments of learned counsel that the accused have been falsely implicated in this case by the police, only the manufactured drugs/intoxicant tablets and liquid were recovered from their possession and since no offence is made out under the NDPS Act, so, the petitioner is entitled to the concession of regular bail, lack merit.

The pith and substance of the prosecution story, inter-alia, is that on 24.3.2013, the petitioner along with her other co-accused, came in a white coloured Matiz car, bearing registration No. DL-3CQ-9939 from the side of village Vanwala. On the basis of suspicion, the car was stopped by the police party. Having completed all the statutory/codal formalities and in the wake of search of plastic bag lying in the indicated car, 82 vials of Rexcof and 1000 tablets of Carisoma were recovered (commercial quantity) from the possession of the accused without any valid licence or permit under the NDPS Act.

At the very outset, it will not be out of place to mention here that exhibiting the great concerns with regard to public health, Article 47 of the Constitution of India postulates that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs, which are injurious to health. This Court has noticed the scenario of drug abuse in this part of the country in case Vinod Kumar Versus State of Punjab, 2013(1) RCR(Criminal) 428, as under:-

Drugs of abuse scenario in the State of Punjab:

Disturbing scenario of drug abuse in the State of Punjab, is appearing in the various newspapers. "The Hindu" and the "Tehelka News Magazine" have reported such drug menace extensively. An extract from the "Tehelka News Magazine", Vol. 9, Issue 15, dated 14th April 2012, is as follows:-

75% of the youth. Every third student. 65% of all families in Punjab are in the throes of a sweeping drug addiction. With little or no hope in sight.

Angarh is just one symptom of a monstrous crises: a staggering 75 per cent of Punjab''s youth is hooked to drug abuse, a figure the state government itself submitted to the Punjab and Haryana High Court in 2009. One out of every three college students in the state is on drugs. In Doaba, Majha and Malwa-regions particularly affected-almost every third family has at least one addict. Every kind of drug is readily available here. From smack, heroin and synthetic drugs to over-the-counter drugs like Buprenorphine, Parvon Spas, Codex Syrup and spurious Coaxil and Phenarimine injections. This is a state where 30 per cent of all jail inmates have been arrested under the Narcotic Drugs and Psychotropic Substances Act and the DGP has kicked up a political storm by saying it is impossible for him to control the flow of drugs into his prisons. But the sharp irony is, this matters little because, like Angarh, scores of other towns and villages in Punjab are more notorious than any other prison cell.

At the same time, no one can lose sight of the fact that the NDPS Act was legislated to amend the existing laws relating to Narcotic Drugs & Psychotropic Substances and to control the menace of drug abuse, which is adversely affecting the social fabric of the society, containing specific provisions and special procedure. In order to carry out the purpose, aim and object of the NDPS Act, the Central Government has framed the Narcotic Drugs & Psychotropic Substances Act & Rules, 1985, Narcotic Drugs & Psychotropic Substances(Regulation of Controlled Substances) Order, 1993 and subsequent Relevant Rules and Orders framed thereunder through the medium of subsequent Notifications.

Moreover, in the wake of lengthy submissions of the learned counsel for the petitioner, the following two questions arise for determination in the instant petition:-

(i) Whether exact quantity (total mass) of the contraband recovered from offender or percentage of Narcotic drugs/Psychotropic Substances seized is to be taken into consideration in relation to manufactured drugs and preparations? If so its effect.

(ii) Whether Manufacturers, Chemists, Wholesale license holders under the Drugs and Cosmetics Act, 1940 possessing controlled substances and manufactured drugs/prescription drugs are also required to comply with the statutory provisions of the NDPS Act, Rules and Order 1993 for their possession? If so its effect.

What cannot possibly be disputed here is that, identical questions came to be decided by this Court in cases Parmanand and Others Vs. State of Haryana, Having considered the relevant provisions of the NDPS Act and relevant Rules framed thereunder, it was ruled as under:-

Re: Question No. (i)

i) As the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No. 239 of the notification dated 19.10.2001 issued in S.O. No. 1055(E) of the Central Government. It is absolutely necessary to conduct Pure Content Test to ascertain the exact quantity of the Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Pure Content Test, the whole contraband seized shall not be considered as such. However, in all the cases registered on or after 17.11.2009, there is no necessity to conduct pure content test to ascertain the exact quantity of Narcotic Drugs, Psychotropic Substances and Manufactured Drugs. The whole contraband seized shall be considered as such even if it comes within the definition of Entry No. 239.

ii) In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No. 239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need for Purity Test and in such cases, the entire quantity of Narcotic Drug/Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction and sentence will be imposed accordingly.

Insofar as question No. 2 is concerned, it was held that the manufacturers of manufactured drugs or prescription drugs, chemists, wholesale license holders under the Drugs and Cosmetics Act are required to comply with the provisions of NDPS Act, Rules and Order, 1993 for the possession of narcotic drugs, psychotropic and controlled substances, failing which, they would be liable to be prosecuted under the NDPS Act.

Not only that, the same very view was again reiterated by a Division Bench of this Court in a bunch of cases, decided vide main CRM No. M-13140 of 2012 titled as "Inderjeet Singh @ Laddi Vs. State of Punjab" decided on 31.1.2014.

Therefore, taking into consideration the recovery of indicated heavy commercial quantity of drugs from the possession of the petitioner attracting the provisions of section 37 of the NDPS Act, to me, she is not entitled to bail. The ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand. To my mind, in case, the contentions raised on behalf of the petitioner-accused are accepted as such, then the very purpose, aim and object of the NDPS Act, would pale into insignificance and thereby inculcate & perpetuate injustice to the society at large. In this manner, the petitioner has violated the mandatory provisions, which entail her involvement u/s 22 of the NDPS Act. She cannot take the benefit and cannot escape from her liability on the ground of recovery of manufactured drugs in this relevant connection, as contrary urged on her behalf. Thus, the contrary submissions of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.

Faced with the situation, the next casual argument of the learned counsel that the petitioner has been falsely implicated in this case, sans merit as well. It is highly improbable to believe that the police will plant such a huge quantity of narcotic drugs & psychotropic substances on her. On the contrary, no motive could possibly be attributed as to why the police would falsely implicate the petitioner in this case.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the main case, as there is no merit, therefore, the instant petition for regular bail filed by the petitioner is hereby dismissed as such in the obtaining circumstances of the case.

Needless to mention that nothing observed, here-in-above, would reflect on the merits of the main case, in any manner, as the same has been so recorded for a limited purpose of deciding the present petition for regular bail only.