IMPORTANT POINT
– Every case has to be judged in its own background at every level.

Mohammad Yaqoob Mir, J.—In connection with case registered as FIR No.o8/2017 P/S Bijbehara for commission of offences punishable under Section 8/21-29 NDPS Act, petitioners have been arrested on 08.02.2017. Application seeking bail filed before the Court of learned Sessions Judge, Anantnag, has been rejected vide order dated 6th March, 2017, hence the instant application for grant of bail.

2. Allegation against the petitioners is that they were travelling in a vehicle (Alto) bearing registration No.JK01J-2343, on search, 28 bottles of Recoding (100 mls each) were recovered from the said vehicle and seized. Learned trial court while rejecting application for grant of bail has observed that the petitioners did not possess any valid document for transportation, stocking or sale of said cough syrup. The said cough syrup contains codeine which falls within the ambit of “Narcotic drugs”. The total codeine in 28 bottles fall within commercial quantity, therefore, rigour of Section 37 of the NDPS Act applies, accordingly, has rejected the bail application.

3. The menace of narcotic and psychotropic substance has to be controlled because use of such drugs has devastative impact on the society. More particularly when supply of such drugs or its distribution amongst the youngsters is made, the supplier thereof darkens the proper growth of the youth.

4. Use and abuse of narcotic drug in its any form has tremendous negative impacts. It is in the same background, stringent provisions are in place. Furthermore, it is in the same background quantity of drug when falls within the commercial quantity attracts rigour of Section 37 of the Act even though it is harsh but has to be applied harshly against such person.

5. Every case has its own facts and features and every case has to be judged in its own background at every level, be it at the stage of grant or otherwise of the bail or be it at the stage of conviction and sentence.

6. Recoding is a cough syrup, as such, is a drug for human consumption but on proper prescription by a registered medical practitioner. Drugs and Cosmetic Act apply regarding its use, stock and sale but equally when a cough syrup contains codeine which falls within the ambit of narcotic, then question arises as to whether Drugs and Cosmetic Act will apply or NDPS Act applies. Said position has been settled by a Full Bench of the Allahabad High Court in the case of Ashok Kumar Thru (Brother) Rakesh Vs. Union of India & ors, wherein Allahabad High Court was dealing with the drug i.e. Phensedyl cough syrup, has held as under:

“….Thus in the considered opinion of this Court, Phensedyl cough syrup falls within the exception provided under the N.D.P.S. Act and, therefore, its possession with licensed stockists would not invite the penalties under N.D.P.S. Act”. Phensedyl cough syrup, in the facts and circumstances of this case is required to be considered as a drug under the Drugs and Cosmetics Act”.

(Emphasis added}

7. The thin line of demarcation is that if Phensedyl cough syrup is in possession of licensed stockists then that stockiest has to abide by the Drugs and Cosmetic Act but in case same is in possession of a person who neither possesses license for sale nor is stockiest etc, then NDPS Act has to be applied.

8. Question arises as to whether whole of the mixture is to be taken into account so as to ascertain as to whether it is a commercial quantity or small quantity. Keeping in view the quantity i.e. 28 bottles of cough syrup, recovered from two persons(petitioners) without any allegation that they have anywhere supplied any such cough syrup to any person, mitigating circumstances exist.

9. At the stage of grant or otherwise of the bail matter has to be considered in a pragmatic manner so as to ascertain whether prima-facie mitigating circumstances exist. In the instant case only 28 bottles of cough syrup have been recovered from two persons(petitioners), the rigour of Section 37 of NDPS Act cannot be applied