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2016 Supreme(Chh) 301
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Goutam Bhaduri, J.
Sudip Agarwal S/o Premchand Agarwal – Applicant
Versus
State of Chhattisgarh, through Police Station, Kusmunda – Respondent
MCRC Nos. 5181, 5843, 5859, 6083, 6588 of 2016
Decided On : 09-12-2016
For the Applicant : Mr. H.S. Ahluwalia.
For the Respondent: Mr. Anant Bajpai.
Headnote:
Code of Criminal Procedure, 1973 - Section 439 - Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 8(c) and 22 - Narcotic Drugs & Psychotropic Substances Rules, 1985 - Rule 65-A - NDPS (Regulation of Controlled Substances) Order, 1993 - Order 3 - Prohibition of certain operations - Punishment for contravention in relation to psychotropic substances - Seized Bottles - Bail application - As per prosecution during patrolling, vehicle was stopped and after having checked in four cartoons 100 ml of Biorax Syrup total 400 Bottles were found and applicants failed to produce any licence or documents; thereby offence is alleged to have been committed - Held, Court is to give effect to it and Court has no business to look into consequences of such interpretation - Court is under an obligation to expound law as it exists and leave remedy to legislature, even if harsh conclusions result from such exposition - Therefore, by application of aforesaid notification, percentage of narcotic drug and psychotropic substance shall be inseparable and whole contraband seized has to be taken into consideration that whether same falls within small quantity or commercial quantity or an intermediate quantity - Said notification was further upheld by their Lordship in case of Harjit Singh vs. State of Punjab, (2011) 4 SCC 441 wherein it is held that under notification whole quantity of material recovered in form of mixture has to be considered for the purpose of imposition of punishment - Therefore, percentage of narcotic drugs i would be immaterial to calculate presence of psychotropic substances from goods seized at mass – Court not inclined to allow this bail applications - Bail applications dismissed.
Goutam Bhaduri, J.
1. These bail applications are being decided together as the common question of law is involved in this case.
2. MCRC No. 5181 of 2016 (Sudip Agarwal vs. State of Chhattisgarh)
(i) This is the first bail application filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicant who has been arrested in connection with Crime No. 113 of 2016 registered at Police Station-Kusmunda, District Korba (C.G.) for the offence punishable under Section 22 of NDPS Act.
(ii) As per the prosecution case, on 26.07.2016 on information received by the police, the police reached near the Railway Station and Sudip Agrawal and his Scooty bearing No. CG 12-AJ-8257 when was searched, Spasma Proxgone Capsule 20 Strips, Spas Pokran Plus Capsule 35 pieces, Almax 0.5 Tablets 20 Strips, Nitrosun 10 Tablets 8 Strips, Cyrex Cough Syrup 100 ml. 10 Bottles, Corex Cought Syrup 100 ml. 8 Bottles, Biorex Cough Syrup 100 ml. 5 Bottles and on house being raided from the Bedroom Spasmo Proxyone Plus Capsule 10 Strips, Almax 0.5 Tablets 20 Strips, Nitrosun 10 Tablets 10 Strips, Cyrex Cough Syrup 100 ml. 100 Bottles, Corex Cough Syrup 100 ml. 45 Bottles were seized. Therefore, he was arrested on 26.07.2016 for committing the offence under Section 22 of NDPS Act.
3. MCRC Nos. 5843 & 6588 of 2016 (Mohd. Ashfaq Alam & Naveen Gupta @ Karfu vs. State of Chhattisgarh)
(i) These are the first bail application filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicants who have been arrested in connection with Crime No. 502 of 2016 registered at Police Station-Ambikapur/Kotwali Ambikapur, District Sarguja (C.G.) for the offence punishable under Section 21(B) of NDPS Act.
(ii) As per the prosecution case, on 21.07.2016 during patrolling, the vehicle bearing No. MP-09-CP-9461 was stopped and after having checked in four cartoons 100 ml of Biorax Syrup total 400 Bottles were found and the applicants failed to produce any licence or documents; thereby the offence is alleged to have been committed.
4. MCRC Nos. 5859 & 6083 of 2016 (Pawan Jaiswal & Pintu @ Vinay Ahuja & Another vs. State of Chhattisgarh)
(i) These are the first bail application filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicants who have been arrested in connection with Crime No. 142 of 2016 registered at Police Station-Jarhagaon, District Mungeli (C.G.) for the offence punishable under Section 22(B) & 29 of NDPS Act.
(ii) As per the prosecution case, on 30.06.2016 on information received that the applicants are selling the narcotic drugs and was traveling in a motorcycle, they were intercepted and a bag which they were carrying was searched and from them 400 Tablets of Nitrosun 100 mg, 50 Tablets of Alfazolam each of 0.50 mg., Corax Cough Syrup of 100 ml. 7 Bottles were found and they failed to produce any document or licence; thereby the offence is said to have been committed.
5. Learned counsel for the applicants would submit that the medicines so seized if are separated and the narcotic drugs contained in such goods are evaluated separately then in such case, the quantity of the narcotic drugs would fall within the small quantity as enumerated in the Schedule of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “NDPS Act”). It is further contended that in the Spasmo Proxyon E Plus Capsule and Spasm Pokran Plus Capsule, it doesn't show presence of narcotic drugs as per the Schedule, whereas in the Almax Tablet presence of Alprazolam is shown. In the Nitrosun Tablet, Nitrazepam has been shown and in Corax Cough Syrup presence of Codeine is shown and if the contents of these drugs are calculated separately, it would fall below the commercial quantity and in cases it will also fall within the quantity below the small quantity. It is further submitted by referring to the law in case of Union of India & Another vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 th
