2024 Supreme(HP) 117

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Nasir Husain - Petitioner
Versus
State of H.P. - Respondent
Cr. MP(M) No. 319 of 2024
Decided On : 30-04-2024

IMPORTANT POINT
The possession of cough syrup containing Codeine Phosphate falls within the purview of the NDPS Act and is covered as an essential narcotic drug under Section 9(1)(a)(va) of the NDPS Act. The entire weight of the mixture or preparation, including the neutral substance, is relevant for determining the small quantity or commercial quantity, and the possession of such cough syrup constitutes an offence under the NDPS Act.

Headnote:

NDPS Act - Bail Petition - Section 22, 29 - Summary of Acts and Sections: The court discussed the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and its application to the possession of cough syrup containing Codeine Phosphate. The court referred to Section 22 and 29 of the NDPS Act and emphasized the determination of small quantity or commercial quantity based on the entire weight of the mixture or preparation, including the neutral substance. The court also highlighted the relevance of the entire quantity of the drug seized for determining the quantum of punishment and not just the pure drug content. The judgment emphasized that the possession of cough syrup containing Codeine Phosphate falls within the purview of the NDPS Act and is covered as an essential narcotic drug under Section 9(1)(a)(va) of the NDPS Act. The court rejected the argument that only the quantity of Codeine Phosphate should be considered and emphasized that the possession of such cough syrup constitutes an offence under the NDPS Act.

Fact of the Case:

The petitioner filed a bail petition after being arrested for possession of cough syrup containing Codeine Phosphate. The police alleged that the petitioner was found in possession of a commercial quantity of the syrup, leading to his arrest. The petitioner claimed that the quantity of Codeine Phosphate recovered from his possession was less than commercial quantity and that the entire cough syrup should not be considered as Codeine Phosphate. The petitioner also argued that the possession of a cough syrup with a concentration of not more than 2.5% falls under the Drugs and Cosmetics Act, and he should be entitled to bail as he had been in custody since September 2023 and had no criminal antecedent.

Finding of the Court:

The court analyzed the provisions of the NDPS Act and the relevant case law to determine the applicability of the Act to the possession of cough syrup containing Codeine Phosphate. The court found that the possession of such cough syrup falls within the purview of the NDPS Act and is covered as an essential narcotic drug under Section 9(1)(a)(va) of the NDPS Act. The court rejected the petitioner's argument that only the quantity of Codeine Phosphate should be considered and emphasized that the possession of such cough syrup constitutes an offence under the NDPS Act. The court also noted that the petitioner was found in possession of a commercial quantity of the syrup, and there was sufficient material to show his connection with the offence. Therefore, the court concluded that the petitioner was not entitled to bail.

Issues: The issues in the case revolved around the interpretation of the NDPS Act and its application to the possession of cough syrup containing Codeine Phosphate. The court addressed the arguments regarding the determination of small quantity or commercial quantity based on the entire weight of the mixture, the relevance of the entire quantity of the drug seized for determining the quantum of punishment, and the applicability of the Drugs and Cosmetics Act to the possession of such cough syrup.

Ratio Decidendi: The court's decision was based on the interpretation of the NDPS Act and the relevant case law. The court emphasized that the possession of cough syrup containing Codeine Phosphate falls within the purview of the NDPS Act and is covered as an essential narcotic drug under Section 9(1)(a)(va) of the NDPS Act. The court rejected the argument that only the quantity of Codeine Phosphate should be considered and highlighted that the possession of such cough syrup constitutes an offence under the NDPS Act. The court also noted that the petitioner was found in possession of a commercial quantity of the syrup, leading to the conclusion that the petitioner was not entitled to bail.

Final Decision: The court dismissed the petitioner's bail petition, concluding that the petitioner was not entitled to bail based on the possession of cough syrup containing Codeine Phosphate, which was found to be a commercial quantity and constituted an offence under the NDPS Act.