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2019 Supreme(HP) 1540
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sandeep Sharma, J.
Harish Kumar - Appellant
Versus
State Of Himachal Pradesh - Respondent
Criminal Miscellaneous Petition (Main) No. 1977 of 2019
Decided On : 18-11-2019
Divya Raj Singh, Advocate, Sudhir Bhatnagar, Advocate, Sumesh Raj, Advocate, Sanjeev Sood, Advocate
The legal interpretation of the notifications and S.2(xi) of the Act was central to the court's decision, determining the classification of the drugs and the legality of the petitioner's custody.
Headnote:
Narcotic Drugs - Bail - S.21 of the Narcotic Drugs and Psychotropic Substances Act - Notifications 826(E), S.O. 49(E), S.O. 1431(E) - S.2(xi) - Diphenoxylate Hydrochloride - Atropine Sulphate - Manufactured drugs - Legal interpretation of the notifications and their application to the case
Fact of the Case:
The bail petitioner, Harish Kumar, was in custody under FIR No. 250, dated 24.7.2019, under S.21 of the Narcotic Drugs and Psychotropic Substances Act. He was apprehended with 157 strips of Lomotil (9420 tablets) and failed to produce a valid licence/permit for the drugs.
Finding of the Court:
The court analyzed the SFSL report and legal arguments regarding the classification of Lomotil as a manufactured drug under the Act. It considered previous judgments and the notifications issued by the Government of India. The court found that the tablets did not fall under the definition of manufactured narcotic drugs as per the notifications and S.2(xi) of the Act.
Issues: Interpretation of the notifications and S.2(xi) of the Act, classification of Lomotil as a manufactured drug, and the legality of the bail petitioner's custody under S.21 of the Act.
Ratio Decidendi: The court's decision was influenced by the legal interpretation of the notifications and S.2(xi) of the Act, which led to the finding that the tablets in question did not qualify as manufactured narcotic drugs.
Final Decision: The bail petitioner was granted bail in the aforementioned FIR, subject to specific conditions.
JUDGMENT
Sandeep Sharma, J. - Instant bail petition filed under Section 439 CrPC has been preferred by the bail petitioner namely Harish Kumar, who is in custody since 24.7.2019, praying therein for grant of bail in FIR No. 250, dated 24.7.2019, under S.21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, ''Act'') registered at Police Station Sadar, Una, Himachal Pradesh.
2. Sequel to order dated 31.10.2019, ASI Rajinder Singh has come present with the record. Mr. Sumesh Raj, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned.
3. Record/Status report reveals that on 24.7.2019, Police patrolling party apprehended bail petitioner, who allegedly after having seen Police, threw his bag on the side of the road, and recovered 157 strips of Lomotil (9420 tablets). Since the bail petitioner failed to produce valid licence/permit, if any, to keep aforesaid drugs, Police, after completion of necessary codal formalities, registered case under S.21 of the Act against the bail petitioner on 24.7.2019 and, since then, bail petitioner is behind the bars.
4. Mr. Divya Raj Singh, learned counsel for the petitioner, while referring to the judgments rendered by this Court in CrMP(M) No. 792 of 2017 titled Surjeet Kumar vs. State, decided on 17.7.2017 and CrMP(M) No. 1592 of 2017 titled Karnail Singh vs. State, decided on 12.1.2018, contended that the drug namely Lomotil does not fall within the definition of ''manufactured drug'' as contained under S.2(xi) of the Act. He further contended that Notifications bearing Nos. 826(E), dated 14.11.1985, S.O. 49(E), dated 29.1.1993 and S.O. 1431(E), dated 21.6.2011 issued by Government of India, clearly provide that the preparation of Diphenoxylate calculated as base and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of the Diphenoxylate does not fall under the definition of ''manufactured drug'' as notified vide Notifications referred to hereinabove. While referring to SFSL report, which is annexed with the report, Mr. Divya Raj Singh, Advocate contended that though Lomotil has been shown to be a sample of Diphenoxylate Hydrochloride tablet but it has been categorically stated in the report that 2.50 mg Diphenoxylate Hydrochloride is found alongwith 0.026 mg of Atropine Sulphate per tablet as such, no case, if any, could have been filed against the bail petitioner under various provisions of the Act, rather, case, if any, for possessing aforesaid tablets of Lomotil without there being licence could have been filed under the provisions of Drugs and Cosmetics Act, 1940.
5. Mr. Sumesh Raj, learned Additional Advocate General, fairly acknowledged the factum with regard to passing of aforesaid two judgments by this Court, wherein having taken note of the Notifications, referred to herein above, this court in Surjeet Kumar (supra)held as under:
"8. I have heard the learned counsel for the parties and gone through the record carefully.
9. In the instant case, as per report of SFSL, prohibited drug namely "Diphenoxylate hydrochloride" has been found to be 2.492 mg per tablet, meaning thereby quantity of prohibited drug, if taken into consideration qua 12000 tablets allegedly recovered from the petitioner, comes out to be 29.754 grams i.e. above than small quantity and less than commercial quantity''. SFSL, while concluding that 2.492 mg Diphenoxylate hydrochloride has been found per tablet, has nowhere rendered any opinion with regard to remaining contents/mixture contained in the tablet namely lomotil, hence, inference can be drawn that 29.754 grams Diphenoxylate hydrochloride is present in recovered tablets.
10. Mr. Kapil Sharma, Assistant Director SFSL, categorically stated before this court that though average weight of tablet namely "lomotil" was found 63.0 mg and as such. if this weight is taken into consideration qua all rec
