The accused must satisfy the twin conditions under Entry 35 of the Notification and produce necessary evidence of engagement in therapeutic practice for medical or scientific purposes to overcome the rigour of the restrictive provisions in drug dealing under the NDPS Act.

JUDGMENT

Aniruddha Roy, J. - This is an application for bail filed under Section 439 of the Code of Criminal Procedure, 1973 (for short, CrPC) by the petitioner.

Facts:-

2. The charge in connection with which the petitioner seeks bail is under 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act) in connection with NDPS Case No. 06 of 2021 arising out of Kalimpong Police Station Case No. 229 of 2021 (for short, the said case).

3. The petitioner is a resident of Siliguri, P.S. Pradhan Nagar.

4. The prosecution case is that on September 30, 2021 the Officer-in-charge, Melli, under Police Station Kalimpong lodged a written complaint to the effect that on the same day at about 15:15 hours Sri. Sanjay Ghosh, Inspector-in- charge, Kalimpong Police Station received secret information that a white and yellow Tata Sumo vehicle bearing registration no. SK-011-3522 (for short, the said vehicle) was coming from Siliguri towards Sikkim carrying contraband Drugs and Psychotropic substances. The Police Officer on the basis of the secret information seized the vehicle and conducted search after complying with the provisions of Section 42 of the NDPS Act. The moment the vehicle was seized one person jumped out there from and fled away. The driver and two other persons were found in the vehicle. The petitioner was the driver of the vehicle. During the search, 40 bottles of 'ONEREEX' Cough Syrup, each bottle containing 100 ml of syrup, were found in the car. The relevant First Information Report was registered as Kalimpong P.S. Case No. 229 of 2021 dated September 30, 2021. Necessary seizure list was also prepared in compliance of the statutory provisions. The petitioner was produced before the Learned Additional Sessions Judge 2nd Court (under NDPS Act) at Jalpaiguri on October 01, 2021. The petitioner was sent to judicial custody on October 05, 2021. His prayer for bail was rejected by the said Special Court on November 25, 2021.

Arguments:-

5. Mr. Arjun Chowdhury, learned advocate appearing for the petitioner at the threshold submits that, the petitioner was falsely implicated and had no connection with the carriage of the contraband. He was merely the driver of the vehicle.

6. Mr. Chowdhury further drew the attention of this Court to the seizure list prepared on November 30, 2021 and submitted that, the items allegedly found in the said vehicle could not and cannot be treated as contraband substance as the content of Codeine mixture therein is within the permitted limit in each 100 ml bottle of syrup and the same is used as medically prescribed cough syrup and as such the invocation of the provisions under the said NDPS Act was illegal, wrongful and vitiated the entire complaint on the basis of which the petitioner was arrested and as such the petitioner is entitled to be enlarged on bail without any further delay as his every day's detention is illegal.

7. Learned Counsel for the petitioner then placed Government of India's Notification showing the exempted manufactured Narcotic Drugs. The said Notification is captioned 'Manufactured Narcotic Drugs' (as contained in Govt. of India's Notification S.O.826(E) dated 14.11.1985 and S.O.40(E) dated 29.01.1993) (for short, the said Notification). He drew our attention to Entry No. 35 in the aforesaid notification, which is reproduced hereinbelow:

'35: Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice'.

8. Relying upon the aforesaid notification Mr. Chowdhury submitted that, from Entry No.35 thereof, it is clear that an exemption has been provided with respect to Codeine preparations wherein the preparations are compounded with one