ORDER

1. This is the second bail application filed by the applicant under section 439 of the CrPC for grant of bail in connection with Crime No.334/2020 registered at P.S. Gurh, District- Rewa for the offence punishable under sections 8, 21,22 of NDPS Act & section 5/13 of Drug Control Act.

2. First bail application bearing MCrC No.32883/20 was dismissed as withdrawn vide order dated 4.11.2020.

3. It is submitted that in the aforesaid order, certain aspects of the provisions of the NDPS Act were not considered, as prima facie no offence is made out against the applicant Punishable under sections 21 & 22 of the NDPS Act.

4. As per the prosecution story, the applicant was found in possession of 83 bottles of Onrex Cough Syrup (each bottle contain 100 ml syrup) and the syrup contain narcotic substance codeine and total quantity of the substance was 8300 ML which is more than the commercial quantity.

5. Learned counsel for the applicant has submitted that in every seized bottle, 5 ml syrup contain 10 mg codeine phosphate and the syrup is essential narcotic drug containing prescribed narcotic substance and it is not a manufactured narcotic drug as defined in the NDPS Act and possession, transport, import, sale, purchase, consumption and use of ‘essential narcotic drug’ will be governed by Chapter VA of the NDPS rules which and contained in rule 52A to 52M. Any violation of the aforesaid rules is not separately made punishable and any contravention of these rules shall be punishable under section 32 of the NDPS Act for which maximum period of sentence is six months. Section 21 of the NDPS Act is not applicable in the present case. It is, therefore, prayed that the applicant is entitled to get the benefit of bail.

6. Learned Panel Lawyer opposed the application and submitted that the aforesaid drug comes into definition of ‘manufactured drug’ but the same will also be considered as essential narcotics drug, if it is prepared for medical and scientific use in the prescribed limit by the authorised manufacturer and possessed or sell, purchase or transport as per the rules.

7. So far as the present case is concerned, it is not a case of the applicant that he is manufacturer, seller, purchaser, transporter or in possession of the aforesaid essential narcotic drug for the purpose of therapeutic or scientific use. Therefore, he cannot claim that he cannot be punished for having possession of manufacturing drug under section 21 of the NDPS Act. The provision of section 32 of the Act with regard to violation of the rule 52(2) of the NDPS Rules as would be applicable to them who are dealing with the essential narcotic drug for manufacturing, selling, purchase and transporting the drug for therapeutic use.

8. Having considered the contentions of the learned counsel for the parties and on perusal of the record, in view of this Court, contentions of the learned counsel for the applicant has no substance, as the question raised here has already been answered by the Apex Court in Mohd. Sahabuddin & another v. State of Assam [(2012) 13 SCC 491] and held that :-

11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less than 10 mg of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means “contributing to cure of disease”. In other words, the assessment of codeine content on dosage basis can only be made only when the