Suresh Kumar vs State of Punjab

Mehinder Singh Sullar, J.—The epitome of the facts & material, which needs a necessary mention for the limited purpose of deciding the instant petition for the grant of concession of regular bail and emanating from the record is that, on 2.6.2013, a police party headed by ASI Ramesh Kumar was going towards Farmahi Phaphra, Bhaike from the GT road Budhlada in the area of village Bhikhi. As soon as, it reached near Saraswati Rice Mill, in the meantime, the petitioner carrying a polythene bag in his hand, was found standing there (spot). On seeing the police party, he tried to flee, but in vain and on the basis of suspicion, he was apprehended by the police party.

Having completed all the codal/statutory formalities, the bag of the petitioner was searched by the Investigating Officer and in pursuance of the search, 490 tablets of Alprazole and 3500 tablets of lomotil were recovered from the possession of the petitioner-accused without any valid licence or permit. After following the due procedure, the samples and remaining drugs were stated to have been separately sealed and taken into possession, by means of recovery memo by the police. The IO had sent a writing (ruqqa) to the police station for registration of the case in this respect. In the background of these allegations and in view of the recovery of commercial quantity of indicated drugs, a criminal case was registered against the petitioner, vide FIR No. 37 dated 2.6.2013 (Annexure P6), 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 Bhikhi, District Mansa (Punjab), in the manner depicted here-in-above.

Having exercised his right of bail and remained unsuccessful before the Judge, Special Court, now the petitioner has preferred the present petition for the grant of concession of regular bail in this Court.

Having heard the learned counsel for parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context.

Ex facie, the celebrated arguments of learned counsel that the petitioner has been falsely implicated in this case by the police, he was having licenses (Annexures P1 to P3) under the Drugs and Cosmetics Act, 1940, only the manufactured drugs/intoxicant tablets and liquid were recovered from his possession and since no offence is made out under the NDPS Act, so, he is entitled to the concession of regular bail, are not only devoid of merit but misplaced as well.

As is evident from the record, that commercial quantity of 490 tablets of Alprazole and 3500 tablets of lomotil were recovered from the possession of petitioner-accused without any valid licence or permit under the NDPS Act and the relevant Rules framed thereunder. Such drugs squarely fall within the ambit of Tables/Schedules, notifications of 1985 and 1993, subsequent notification issued under the NDPS Act and The Punjab Narcotic Drugs & Psychotropic Substances Rules, 2012 (for short "the Punjab Rules, 2012").

At the same time, the mere fact that the petitioner was a licence holder under The Drugs & Cosmetics Act/Rules, and the manufactured drugs were recovered from his possession, ipso facto is not a ground, much less cogent, to exonerate him from such violation and will not operate as a bar to prosecute him in the present case, as envisaged u/s 80 of the NDPS Act.

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 injuries 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 Vinod Kumar''s case (supra) and 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, to me, prima facie, the case for the commission of the offence in question is made out against him. 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 his conviction u/s 22 of the NDPS Act. He cannot take the benefit of licenses and cannot escape from his liability in this relevant connection, as contrary urged on his 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.

Finding no alternative, the next cosmetic argument of the learned counsel that the petitioner has been falsely implicated in this case, lacks merit as well. It is highly improbable to believe that the police will plant such a huge quantity of narcotic drugs & psychotropic substances on him. 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.