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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Raj Shekhar Attri
Criminal Misc. No.M-40371 of 2017(O&M)
Sarbjit Singh alis Sabbi
v.
State of Punjab
{Decided on 25/07/2018}
(B) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Bail – Commercial Quantity – Held; that if a person keeps commercial quantity of the psychotropic substance falling under the schedule, he is not entitled to the benefit of Section 37 of the Act irrespective of the provisions contained in Rule 66 of the Rules permitting keeping of 100 doses of drugs for personal use.
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, S.37 – Bail – Commercial Quantity – That the power to grant bail to a person alleged to have committed offence containing commercial quantity of contraband is subject to the restriction prescribed by Clause (b) of Sub-section (1) of Section 37 of the Act – First of all, an opportunity to the Public Prosecutor has to be given to oppose the application for release of the accused – The other twin conditions are (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the offence alleged to have been committed; (ii) he is not likely to commit any offence while on bail – Thus, recording of satisfaction on both aspects is sine qua non to grant bail in respect of offence punishable under Section 19 or Section 24 or Section 27-A and also offence involving commercial quantity. (Para 24)
(D) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Bail – Commercial Quantity – Section 37 of the Act neither exempted any of the provisions of the Act nor excepted any of the provisions of the Rules, rather, it applies secularly to all the provisions of the Act and the Rules, unless the conditions imposed therein have been fulfilled.
(E) Interpretation of Statute – Intention of legislature – Must be found by reading the statue as a whole – Every clause of a statute should be construed with reference to the context of the whole statute – It is also the duty of the court to find out the true intention of the legislature and to ascertain the purpose of the statute and give full meaning to the same – The different provisions in the statute should not be interpreted in the abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express.
Mr. Raj Shekhar Attri, J.(Oral):- “Making innumerable statues, men merely confuse what God achieved in ten.” Above quote of Humbert Wolfe is apposite to the present cotext where different provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘the Act’) as well as the Narcotic Drugs & Psychotropic Substances Rules, 1985 (in short ‘the Rules’) are inter se at variance.
2. The petitioner has preferred the instant petition under Section 439 Cr.P.C. for grant of regular bail in case FIR No.07 dated 13.01.2017, registered under Sections 22 of the Act at Police Station Garshankar, District Hoshiarpur.
3. It is a case of the prosecution that on 13.01.2017, the petitioner was found in possession of 25 ampouls containing avil and 25 intoxicating vials each containing 2ml of buprenorphine. Those were taken into possession and sealed in a separate parcels and sent to chemical examiner who opined that salt buprenorphine hydrochloride, which is a psychotropic substance, was contained therein. As per notification No.1055 (E) dated 19.10.2001 issued by Centre Government, at Sr. No.169 buprenorphine [having chemical name as 21 – cyclopropyl – 7alpha – [(S)- 1- hydroxy – 1 ,2 ,2 – trimethylpropyl]) -6, 14, endo-ethano – 6, 7, 8, 14- tetrahydrooripavine] above 20 grams falls within commercial quantity of contraband. As per note 4 of said notification [inserted in the Schedule S.O. 2941 (E), dated 18.11.2009], the quantitites shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salt of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.
4. In this view of the matter, the total weight of 25 vials containing 2 ml each comes to 50 ml in total that comes to 50 grams. Thus, it falls within commercial quantity of the psychotropic substance. Therefore, the rigors of Section 37 of the Act comes into play which imposes a restriction in granting bail to the said offender unless he fulfils the conditions laid down therein.
5. Learned counsel for the petitioner has submitted that petitioner is entitled to bail under the first proviso of sub Rule 2 of Rule 66 of the Rules as he is not required to produce any medical prescription issued by a registered medical practitioner and it shall be presumed for his personal use. In support of his contentions, he has placed reliance upon the judgments of Hon’ble Supreme Court in Ouseph @ Thankachan v. State of Kerala; Sanjay Kumar Kedia vs. Narcotics Control Bureau and Anr. 2008(1) Crimes 26; as well as the judgments of this Court in Iqbal Singh alias Kala vs. State of Punjab in Criminal Misc.No.M-613 of 2018 decided on 12.02.2018; Amandeep vs. State of Punjab in Criminal Misc.No.M-250 of 2018, decided on 12.01.2018; Hitesh Kumar alias Ashu vs. State of Punjab in Criminal Misc.No.M-25787 of 2017, decided on 25.01.2018; Sulakhan Singh alias Billa vs. State of Pujab in Criminal Misc.No.M- 1010 of 2018, decided on 24.01.2018; Sabir Mohd. @ Gollu vs. State of Punjab in Criminal Misc.No.M-4669 of 2018, decided on 09.02.2018; Hardeep Kaur vs. State of Punjab in Criminal Misc.No.M-43541 of 2017, decided on 19.01.2018 Cer Boih @ Cherry vs. State of Punjab 2016 (1) RCR (Criminal) 687; Rajinder Gupta vs. The State 2006 Cri LJ 674; Rajinder Singla vs. State of Punjab 2016 (344) ELT 3 (P&H); Deepak Sharma vs. State of Punjab in Criminal Misc.No.6122 of 2014 in Criminal Appeal No.S-4493-SB of 2013, decided on 17.12.2014; Saleem Mohd. vs. State of Punjab 2015 (5) Law Herald 3939; Satwinder Singh vs. State of Punjab in Criminal Misc.No.20997 of 2017, decided on 30.08.2017.
6. On the other hand, the learned State counsel has submitted that if the petitioner is allowed to take 100 vials of bupr
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