Ravi Singh @APPELLANT@Hash State of Rajasthan & Ors.

The petitioner has been arrested in connection with FIR No.488/2017 of Police Station Hanumangarh Town for the offence punishable under Sections

8/21, 22, 25 NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C. The first bail application was dismissed on

06.03.2018.

Counsel for the petitioner submits that after rejection of the first bail application, charges of the case were framed and three prosecution witnesses

were examined before the trial court. He further submits that in this case total 200 bottles of cough syrup were recovered from the possession of the

petitioner. He further submits that the coordinate Bench of this Court in SB Cr. Misc. Bail Application No.3804/2018 titled as Mahendra Singh Vs.

State vide order dated 12.07.2018 has granted bail to the accused-petitioner wherein total 250 bottles of cough syrup were recovered from the

possession of the accused-petitioner.Â

Learned counsel for the petitioner has also shown the judgment of Binod Kumar Vs. State of Bihar passed by Hon’ble Apex Court reported in

2017 (4) RCR (Criminal) 125. The said judgment reads as under :

Leave granted.

The appellant, Binod Kumar @ Binod KumarBhagat son of late Krishna Kumar is facing trial for the offences punishable under Sections 272,

273/34 of the Indian Penal Code, Sections 27(b)(ii), 28, 36AC of Drugs & Cosmetics Act, 1940 and Section 22(C) of the Narcotic Drugs &

Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985). He has been in custody since 24.08.2016 in Araria P.S. Case No.

546 of 2016.

The prosecution has alleged that on 23.08.2016,a search was conducted at Azad Signature Not Verified Digitally signed by Transport Company

Pvt. Ltd., Sadakat Complex, Navratan Chowk, where 4000 bottles DEEPAK MANSUKHANI Date: 2017.08.11 16:59:48 IST Reason: Â of Corex

cough syrup containing codeine was recovered and on being asked, the accused appellant, who is running the said transport agency placed a

consignment note before the Drug Inspector but instead of the drugs shown in the consignment note, 40 cartons containing 100 bottles each of Corex

cough syrup (100 ml) having codeine was recovered and the accused did not show any documents with regard to such recovered cough syrup. The

prosecution further states that the drug was recovered from the godown being managed by the appellant.

Learned senior counsel appearing for the appellantsubmits that the drug which was recovered from the godown being managed by the appellant is

Corex syrup containing codeine which is being manufactured for the past 25 years. The Government of India issued notification dated 10.03.2016 in

exercise of power under Section 26A of the Drugs and Cosmetics Act, 1940 and sought to prohibit the manufacture, distribution and sale of 344 Fixed

Dose Combination (FDC) Drugs which included Corex. It is argued that the manufacturer and distributors of prohibited Drugs filed writ petition

before the High Court of Delhi and the High Court hold that the notification in question do not abide with the law and were quashed in writ petition (C)

No. 2212 of 2016 on 01.12.2016. It is further argued that in view of this development Corex containing codeine is within the permissible limit and is not

covered under the NDPS Act, 1985 and the Drugs and Cosmetics Act, 1946.

It is also argued that the appellant is only anemployee (Manager) of Azad Transport Company Pvt. Ltd. The said company is engaged in the

business of transportation of goods. The consignee was Alsafa Surgical, Araria. The appellant is assigned with the duty of godown management.

We have also heard learned counsel for therespondent State, who has opposed the grant of bail.

According to the prosecution the Corex coughsyrup has been recovered from the godown and the prosecution alleges that it has been recovered

from the appellant. It is evident that the Delhi High Court by order dated 01.12.2016 quashed the notification issued under Section 26A of the Drugs

and Cosmetics Act, 1940 which has sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose of Combination. The FIR was

registered on 23.8.2016. Be that as it may, the appellant has been in custody from 24.08.2016.

Having regard to the facts and circumstances ofthe case, we are of the view that it is just and proper to release the appellant on bail. Therefore, we

order the appellant to be released on bail on execution of his personal bond in sum of Rs. 25,000/- with two sureties in the like sum to the satisfaction

of the trial judge. We permit the trial judge to impose such conditions as he feels necessary for ensuring the appellant’s attendance on the dates of

posting in the trial court.

The order of the High Court dated 15.12.2016 inCriminal Miscellaneous No. 44301 of 2016 is hereby set aside and the appeal is accordingly

allowed.

Learned counsel for the petitioner has also shown the judgment of Hira Singh & Ors. Vs. Union of India & Ors., passed by Hon’ble Apex Court

reported in (2017) 8 SCC 162 whereby, among other questions, the question relating to the provisions dealing with the “manufactured drug†and

“preparation†have been referred to Larger Bench. The purity of narcotic drug from the recovery or seizure made from the offender was also

held to be a decisive factor. In other words, the Hon’ble Apex Court, in the said case, contemplated that the actual content or weight of the

narcotic drug or psychotropic substance alone should be reckoned. However, these issues were referred to the Larger Bench, which are yet to be

decided. The petitioner is in custody since long.

Learned Public Prosecutor has vehemently opposed the submission advanced on behalf of the petitioner and urges that the petitioner has been found

to be prima facie guilty and the challan has already been filed, and therefore, this bail application ought to be rejected.

Having regard to the facts and circumstances of the case and upon a consideration of the arguments advanced on behalf of the petitoner and the

State, this Cuort is of the opinion that restrictino contained in Section 37 of NDPS Act does not operate to the prejudice of the petitioner, and

therefore, the petitioner is entitled to be released on bail.

Accordingly, the second bail application filed under Sec.439 Cr.P.C. is allowed and it is directed that petitioner Ravi Singh S/o Tahlar Singh shall be

released on bail in connection with FIR No.488/2017 of Police Station Sadar, Hanumangarh Town provided he executes a personal bond in a sum of

Rs.2,00,000/- with two sound and solvent sureties of Rs.1,00,000/- each to the satisfaction of learned trial court for his appearance before that court

on each and every date of hearing and whenever called upon to do so till the completion of the trial.