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2016 Supreme(Raj) 765
IN THE HIGH COURT OF RAJASTHAN
Sandeep Mehta, J.
Devilal – Petitioner
Versus
State of Rajasthan – Respondent
S.B. Criminal Misc. II Bail Application No. 2638 of 2016
Decided On : 01-06-2016
For the Petitioner:Mr. D.L. Rawla, Advocate
For the State : Mr. Ashok Upadhyay, PP.
Headnote:
Criminal Procedure Code , 1973 - Section 167,2 - Section 439 - N.D.P.S. Act - Section 37 - Sections 8/21, 22 - Section 36A,4 - Drugs and Cosmetics Act - Sections 8C/27B,2 - Section 27 – Bail - Learned counsel for petitioner urged that medicinal preparations were recovered from possession of petitioner and thus, he can only be prosecuted under provisions - He relied upon order passed by Hon’ble Single Bench of this Court in a bunch of bail applications led by S.B. Criminal Misc. Bail Application wherein, dealing with a case involving similar recovery, Hon’ble Single Bench of this Court held that Drugs and Cosmetics Act is competent and self sufficient Statute for dealing with cases where drugs for personal consumption are recovered - He submit that this Court in above case has unequivocally held that unless it is alleged that drugs were manufactured by an unregistered company or a company which does not have a license to do so or they contain psychotropic content in excess of permissible limit and were in a different form than as manufactured and packed to be sold as medicine by chemist and medical practitioner, provisions of N.D.P.S. Act would ex-facie have no application whatsoever – Held , Appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule H drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practise as mentioned in Notifications - Therefore, if said requirement meant for therapeutic practise is not satisfied then in event of entire 100 ml. content of cough syrup containing prohibited quantity of codeine phosphate is meant for human consumption, same would certainly fall within penal provisions of N.D.P.S. Act calling for appropriate punishment to be inflicted upon Appellants - Therefore, Appellants failure to establish specific conditions required to be satisfied under above referred to notifications, application of exemption provided under said notifications in order to consider Appellants application for bail by Courts below does not arise - As far as submission now made for first time that Appellants had been in jail for more than minimum required period is concerned, since neither Sessions Judge nor High Court had opportunity to examine said claim made by Appellants, we do not propose to deal with same in this appeal – Court refer to decisions relied upon by Learned Counsel for Appellants, Court find that none of facts relating to those decisions are parallel to facts of present case - Those are all cases which were related to persons who had valid licences and in course of their regular business transaction when they were dealing with pharmaceutical products which contained prescribed permitted content of narcotic substance and when they were proceeded against for violations, relief came to be granted in their case - Court do not, therefore, find any scope to apply any of ratios of those decisions to facts of this case - Bail Application dismissed
Sandeep Mehta, J.
The instant second application for bail has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in connection with F.I.R. No. 38/2016, Police Station Sangariya, District Hanumangarh, for the offences under Sections 8/21, 22 of the N.D.P.S. Act and Sections 8C/27B(2) of the Drugs and Cosmetics Act.
2. The first bail application submit on behalf of the petitioner was rejected by this Court on 24.2.2016 while investigation was still pending. Now post filing of charge-sheet, this second bail application has been moved.
3. Learned counsel for the petitioner urged that medicinal preparations were recovered from the possession of the petitioner and thus, he can only be prosecuted under the provisions of Drugs and Cosmetics Act. He relied upon the order dated 16.9.2015 passed by the Hon’ble Single Bench of this Court in a bunch of bail applications led by S.B. Criminal Misc. Bail Application No. 7976/2015 (Mahesh v. State of Rajasthan) wherein, dealing with a case involving similar recovery, the Hon’ble Single Bench of this Court held that Drugs and Cosmetics Act is competent and self sufficient Statute for dealing with the cases where drugs for personal consumption are recovered. He submit that this Court in the above case has unequivocally held that unless it is alleged that the drugs were manufactured by an unregistered company or a company which does not have a license to do so or they contain psychotropic content in excess of permissible limit and were in a different form than as manufactured and packed to be sold as medicine by chemist and medical practitioner, the provisions of N.D.P.S. Act would ex-facie have no application whatsoever.
4. He urged that there are no such allegations of the prosecution so as to bring the recovered drugs under the umbrella of N.D.P.S. Act and, therefore, the petitioner deserves to be released on bail.
5. Learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the petitioner. He urged that pursuant to the notification issued by the Government of India in the year 2009, the argument that only the net percentage of psychotropic salt content of the medicinal preparation should be segregated so as to determine the exact weight of psychotropic salt contained in the medicinal preparation as against the gross volume of the seized drugs has no legs to stand whatsoever. He urged that the gross volume/weight of the medicinal preparation has to be taken into account for determining whether it is covered in the small, non-commercial or commercial quantity. He urged that in the case at hand, the total weight of the psychotropic drug recovered from the petitioner’s possession is well above the commercial quantity. Therefore, the restrictions of Section 37 of the N.D.P.S. Act clearly operate against the petitioner and, therefore, he does not deserve to be released on bail.
6. Heard and considered the arguments advanced by the learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
7. Following drugs were recovered from the petitioner :-
(i) 1150 tablets Alprazolam gross weight 172.50 grams,
(ii) 1140 capsules Parvon spas.
8. As per Item No. 178 of the Schedule appended to the N.D.P.S. Act, up to 5 grams is defined as small quantity, whereas up to 100 grams is quantified as non-commercial quantity for the salt Alprazolam. The gross weight of the Alprazolam tablets recovered from the petitioner’s possession is 172.50 grams. Therefore, definitely the gross weight of the drug recovered from the petitioner was well above the commercial quantity. The Hon'ble Supreme Court, in the case of Union of India v. Sanjeev V. Deshpande reported in 2014 Cr.L.R. (SC) 896 considered the controversy as to whether the content of psychotropic salt in the tablet could be separately counted for calculating the weight/volume of psychotropic substance in a medicinal preparation. The Honourable Supre
