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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
CRM-M-35080 of 2018
Rajvir Singh @ Raju
v.
State of Punjab
{Decided on 21/08/2018}
If the interpretation as put forward by State Government is accepted and it is held that in a mixture containing psychotropic substance even the neutral material would be taken as prohibited psychotropic substance, if the same is found to be beyond the quantity prescribed for such a prohibited substance, then such an interpretation would lead to disastrous and absurd results. Besides, being beyond the power of the Central Government to include such substance while counting commercial quantity, this would also frustrate the other provisions of the Act and the Rules itself. If this interpretation is accepted; and any mixture of narcotic substance and nonnarcotic substance is taken to be a preparation and, therefore, entire mixture is counted towards commercial quantity, then it would make, as common a substance as the water and the common dextrose; which are widely used in daily living and in hospital treatment, a prohibited and psychotropic substance. This would mean that even if one ampule of injection containing .25mg of Buprenorphine is added to one liter of water then a person shall be held liable for possessing one liter of Buprenorphine. Same thing can happen to common dextrose, which is given as an immediate life support liquid to the patient on arrival in Hospital. This could so happen despite the fact that it is not any isomers, esters, ethers and salt of the Buprenorphine and it is a totally independent substance. If one injection of Buprenorphine is added to one bottle of dextrous which is being administered to the patient in the hospital then it would be covered under the commercial quantity of Buprenorphine and the doctor treating in the hospital would be liable to put in jail for possessing one bottle of Buprenorphine. The entire aspect would be well understood by Rule 24 and 25 of Punjab Narcotics Drugs and Psychotropic Substances Rules, 2012.
(B) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Commercial Quantity – Neutral Substance – It has not been defined in any way in the NDPS Act – However, this is well defined in chemistry – Neutral substance, by definition, is a substance which does not, per se, have tendency to react with the substance with which it is being mixed – It does not create a new ‘substance’ after mixing with another substance – Neutral substance retains its independent identity and chemical composition even in the mixture as such – Despite being invisible in a mixture with psychotropic substance, a neutral substance can very well be separated by way of appropriate process of separation.
For example, the Buprenorphine being a carbon compound, is not soluble with water. Therefore, Buprenorphine is converted into its ‘salt’ Buprenorphine hydrochloride to make it partly soluble with water. Still further, another solution like ‘dextrose’ is added to make it a suitable solution. In this mixture, Buprenorphine hydrochloride only, can very well be separated from the water and the dextrose. Therefore, it would be totally impermissible to include even a distilled water and the dextrose in the category of Buprenorphine, merely because Buprenorphine has to be mixed with, and has been mixed with, the water and the dextrose to make the dosages of Buprenorphine worth administering to human body
(C) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Commercial Quantity – Precedents – Even the Hon’ble Supreme Court was apprised of all the material including Note dated 18.11.2009, which is being relied upon the State counsel now to contend that E.Micheal Raj’s case, has been rendered insignificant – Despite that the Hon’ble Supreme Court has said that the Judgment of the Supreme Court in E.Micheal Raj’s case (Supra), is binding upon the subsequent Bench of the same Court, which was considering the mater in Hira Singh’s case in the year 2017 – Hence by no means, it can be said that the judgment of the Hon’ble Supreme Court rendered in E.Micheal Raj’s case (Supra), has lost its significance – This holds the field till today – For the same reason, the reliance of the counsel for the State on judgments, rendered by a Division Bench of High Court in Inderjit Singh @ Laddi’s case(supra) and Sarabjit Singh @ Sabbi’s case (supra) is also not sustainable.
(D) Constitution of India, 1950, Art. 141 – Precedent – Mere pending of a reference of is not ground to deny a litigant the decision of his case in accordance with the existing law.
(E) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Commercial Quantity – Section 37(1)(b) of the NDPS Act, is applicable only where offence alleged is under Sections 19, 24 or Section 27-A of the NDPS Act or when the quantity recovered from accused is ‘commercial’ one.
(F) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Commercial Quantity – Bail – The State cannot insist upon the conditions as prescribed under Section 37(i) (b) (ii) of the NDPS Act for the purpose of defeating the right of the petitioner to get enlarged on bail, if otherwise found eligible by the Court despite the fact that the quantity recovered is commercial quantity – 2018(3) Law Herald (P&H) 2207 relied upon.
(G) Narcotics Drugs and Psychotropic Substances Act, 1985, S.50 – Personal Search – The alleged contraband was held by the petitioner in gunny carry bag held in his hand – Therefore, he was consciously keeping that material held by his body – The material consciously held by a person in his hand would fall in the definition of “personal possession” – Hence, search of bag held by a person falls in the category of personal search – Provisions of S.50 will be applicable
Just like the apparels consciously put on by a person on his body, the material held in the carry bag in his hand is also consciously held by the body of the person. No rational distinction can be made between the pocket of the consciously worn pant of a person and the consciously held in hand carrybag of that person. Since, it was a personal search, therefore, it cannot be said that Section 50 of the Act was not required to be complied with. Therefore, there is substantial reason to believe that the petitioner has not committed the offence as alleged against him.
Mr. Rajbir Sehrawat, J.-The question which this court is called upon to consider and decide in this application for bail pending trial is; whether it is the quantity of narcotic drugs and psychotropic substance only or whether it is the total quantity of mixture of narcotic drug and psychotropic substance mixed with any non-psychotropic substance, neutral or otherwise, which is to be taken into consideration for seeing the commercial quantity of the recovered material, as required under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short – the NDPS Act )
2. This is an application for grant of bail during trial in case FIR No.38 dated 25.05.2017 registered under Section 22 of the NDPS Act registered at Police Station Sadar Banga District SBS Nagar.
3. The above said FIR was registered against the petitioner with the allegations that ASI Satnam Singh, of Police Station Sadar Banga, sent an information to the police station for registration of the FIR mentioning the name of the petitioner; alleging therein that the above said ASI along with police party were going towards village Karnana from Banga; on a private vehicle for the purpose of patrolling. When the said ASI along with police officials reached just ahead of T-point; village Bharo Majra; then from the front side, the petitioner was seen coming by the police party. On seeing the police party in uniform, the petitioner, who was holding a bag in his left hand, suddenly turned back and started moving quickly. He went down in the fields. With the help of the accompanying police personnel, the said ASI apprehended the petitioner and inquired about his name and address, which was told by the petitioner as given in the FIR. As per further allegation, the said ASI introduced himself to the petitioner and told that he had a suspicion that there was some intoxicant material in the stringed carry bag held by the petitioner in his hand; and that the petitioner had got a right to get the said stringed bag held by him in his hand searched in the presence of some Magistrate or the Gazetted Officer; for which the said ASI could make the arrangement. However, the petitioner disclosed that there were psychotropic injection in the bag and that he had full faith in the said ASI, and further that he could continue with the search of the petitioner and the gunny bag held by the petitioner in his hand. Thereupon the consent statement of the petitioner was prepared and was signed by the petitioner in English. The said ASI tried to join some public witnesses with the police party. However, every one expressed his inability. Hence, the said ASI, in the presence of accompanying police personnel, got released down the bag from the hands of the petitioner and conducted search of the bag, as per the procedure. During the search, the bag was found containing 60 injections, each measuring 10ml, of make Avil, and 60 injections measuring 2ml each, of Buprenorphine. Accordingly the injections were recovered. Thereafter separate parcels of intoxicant injections of Avil total 60 bottles and another parcel containing 60 injections of Bupronorphine were prepared. The recovered intoxicant injections of Avil and Bupronorphine, along with stringed gunny bag, were taken into possession through separate memos. These memos were signed by the witnesses, who were the accompanying in the police party and, allegedly, by the petitioner. Petitioner failed to produce any licence or permit for keeping the intoxicant injections. Therefore, the ASI came to the conclusion that the petitioner had committed offence punishable under Section 22 of the NDPS Act. Hence, the information was sent to the police station for registration of the case. The said ASI continued with the investigation on the spot, and the State counsel has informed the Court that he was the person who conduc
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