JUDGMENT

AMIT SHARMA J.

1. The following questions have been referred to this Bench by a learned Single Judge of this Court:

“a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?

b) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?

c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India,. Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?”

2. The background for such reference is that during the course of the hearing in the bail application, filed on behalf of the petitioner, in a Complaint Case No. 62/2020, dated 31.01.2018, filed by customs under Sections 21(C) and 23(C) of The Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter “NDPS Act”), one of the points that arose for consideration was whether the recovery of 110 bottles of „Phensedyl New‟ weighing 100 gms each and having a Codeine concentration of 0.17% per bottle would be considered as „commercial quantity‟ under the NDPS Act.

3. The attention of the learned Single Judge was drawn to a judgment of another learned Single Judge of this Court in Iqbal Singh vs. State (BAIL APPLN. 645/2020), wherein the learned Single Judge vide order dated 31.07.2020 had held that cough syrup bottle (Onerex) containing Codeine Phosphate would fall outside the scope of the definition of „manufactured drug‟ under Section 2(xi) of the NDPS Act. The aforesaid finding of the learned Single Judge was based on various provisions of the NDPS Act as well as the Drugs and Cosmetics Act, 1940. The facts of the bail application in Iqbal Singh (supra) were similar to the facts in the present bail application.

4. The learned counsel for the petitioner in the present bail application relying on the judgment of this court in Iqbal Singh (supra) had argued that in the present case too, the bottles which had been recovered were prescribed drugs which are covered under the Drugs & Cosmetics Act and fall under Schedule H of The Drug and Cosmetics Rules, 1945. It was further argued that the said bottles were manufactured by a licensed manufacturer, i.e. M/s Abbot Healthcare Pvt. Ltd.

5. The learned Single Judge, while hearing the present bail application noted that the case of the applicant was to the extent that since each bottle contained only 0.17% Codeine concentration, the same cannot be categorised as „commercial quantity‟. In other words, it was urged on behalf of the petitioner that only the weight of Codeine concentration in each of the bottles should be taken into account, which in the present case would be 18.70 gms (0.17% x 110), bringing the case in the category of „intermediate quantity‟ and therefore, rigours of Section 37 of the NDPS Act would not be applicable. The Hon‟ble Supreme Court in Hira Singh vs. Union of India, (2020) 20 SCC 272 had considered the notification bearing no. S.O. 2941(E) dated 18.11.2009, adding ‘Note 4’ to the notification bearing no. S.O. 1055(E) dated 19.10.2001 and had held that irrespective of the quantity of the narcotic drug or psychotropic substance in the mixture, the quantity of the entire substance would be considered for the purposes of ascertaining whether it is a commercial quantity, intermediate quantity or small quantity.

6. After taking into consideration the judgment of Hon‟ble Supreme Court in Hira Singh‟s Case (supra), the learned Single Judge in Iqbal Singh (supra) held as under:

“25. Plainly, the quantity of t