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2024 Supreme(Raj) 461
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
FARJAND ALI, J.
Prakash Kumar S/o Madan Lal – Petitioner
Versus
Union of India – Respondent
S.B. Criminal Miscellaneous Bail Application No. 2689 of 2024
Decided On : 06-05-2024
For the Petitioners: Anand Purohit, Mayank Roy.
For the Respondent: K.S. Nahar.
IMPORTANT POINT
The court established that the statutory provisions of the NDPS Act do not bar the sale of Buprenorphine in licensed medical stores, and procedural non-compliance by the prosecution can lead to the granting of bail.
Headnote:
BAIL - Narcotics Offences - Sections 8, 21, 22, 28, 29, 30, 35 of NDPS Act; Section 439 Cr.P.C. - The court examined the provisions of the NDPS Act and the Cr.P.C. regarding bail. It highlighted that the sale of Buprenorphine is not expressly prohibited under the statute, and the petitioner had a valid drug license. The court emphasized the lack of evidence against the petitioner and the failure of the prosecution to comply with mandatory procedures, ultimately leading to the decision to grant bail.
Fact of the Case:
The accused-petitioner was arrested under various sections of the NDPS Act following a raid at his medical store, where Buprenorphine was found. The petitioner contended that he had a valid drug license and that the sale of Buprenorphine was not prohibited.
Finding of the Court:
The court found that the petitioner had complied with licensing requirements and that there was no statutory prohibition against the sale of Buprenorphine. It noted the prosecution's failure to provide sufficient evidence and procedural compliance.
Issues: Whether the accused-petitioner should be granted bail despite the charges under the NDPS Act and the implications of Section 37 regarding bail restrictions.
Ratio Decidendi: The court determined that the lack of evidence and procedural deficiencies in the prosecution's case warranted the granting of bail, emphasizing that personal liberty should not be unduly restricted pending trial.
Final Decision: The bail application was allowed, and the accused-petitioner was granted bail upon furnishing a personal bond and sureties.
ORDER :
1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein-below:
| S. No. | Particulars of the Case | |
| 1. | FIR Number | 03/2023 |
| 2. | Concerned Police Station CBN | New Delhi |
| 3. | District | New Delhi |
| 4. | Offences alleged in the FIR | Under Sections 8/21, 22, 28, 29, 30 & 35 of the NDPS Act |
| 5. | Offences added, if any | ----- |
| 6. | Date of passing of impugned order | 19.01.2024 |
2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.
3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.
4. I have considered the submissions made by both the parties and have perused the material available on record.
5. The petitioner is behind the bars in this case for the allegation that when the preventive forces of Central Bureau of Narcotics made a sudden inspection of Dwarkadhish Medical Store, which was being operated by the petitioner; certain quantity of medicinal drug were recovered from the medical store and the bills were not shown to the authorities.
6. As a matter of fact, the petitioner is having a valid and effective drug license and running the medical store as per the rules and regulations. The bills of all the medicines available in the shop were later submitted to the agency and to this Court as well. PW.1 – Seizure Officer Pradeep Kumar has been examined. The petitioner is behind the bars since 12.03.2023 but only one witness has been examined till date.
7. It is the case of the prosecution that certain quantity of contraband Tablet Buprenorphine was recovered from the Medical Store run by the petitioner. As a matter of fact, sale of Tablet Buprenorphine by a licenced medical store is not expressly barred or prohibited under the Statute. The Directorate General of Health Services, Central Drug Standard Control Organization, Government Of India had approved Sublingual tables of Buprenorphine 2mg, 0.4 mg on the condition that the same shall be supplied only to the designated De-addiction centres set up by the Government of India funded by the Ministry of Health and Ministry of Social Justice and Empowerment, hospitals with De-addiction facilities. No rule and regulation has been framed in this regard, however, a letter dated 23.03.2019 addressed to All State/Union Territories Drug Controllers revealing that upon the request of association of Psychiatrists, the proposal for deletion of the condition was deliberated upon. The relevant part of the letter referred above is being reproduced herein-below:
In place of:
“The preparation shall be supplied only to the designated De-addiction centres set up by the Governemnt of India funded by the Ministry of Health and Ministry of Social Justice & Empowerment and Hospitals with De-addiction facilities and a list of the centres to whom supply of the drug is made should be made to the office of Drugs Controller General (I) periodically indicating the qunatity supplied to each centres.”
Read as:
“The preparation shall be supplied to Psychiatric clinics and hospitals in addition to the designated De-addiction centres set up by the Government of India funded by the Ministry of Health and Ministry of Social Justice & Empowerment and Hospitals with De-addiction facilities and a list of the centres to whom supply of the drug is made should be made to the office of Drugs Controller General (I) periodically indicating the quantity supplied to each cen
