ORAL ORDER

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11192050230063 of 2023 registered with Sanand Police Station, Ahmedabad.

2. The short facts leading to filing of the present application are as under.

2.1 The petitioner is engaged in the business of selling scheduled drugs through valid licence from 16.12.2021 to 15.12.2026 in the name of Alpha Matrix, which is in the name of wife of the petitioner. It is the case of the petitioner that acting on secret information, the complainant along with other police officials and panchas went to Nidhrad village and stopped a car and it was found that accused Nos.1 and 2 were sitting in the car and the car was having total 450 bottles of cough syrup 100 ml and upon inquiry, it was found that the said bottles were supplied by accused Nos.4 and 5 and therefore, the FIR came to be filed. The name of the petitioner has been arraigned on the basis of statement of co-accused. Hence, the present bail application.

3. Heard learned advocate Mr.R.J.Goswami appearing for the petitioner and learned APP appearing for the respondent State.

4. Learned advocate Mr.R.J.Goswami would submit that petitioner’s wife namley Apekshaben Ashwingiri Goswami is proprietor of Alpha Matrix and she has licence to sell, stock and exhibit or offer for sale or distribute by selling drug other than those specified in Schedule C, C1 and X on the premises of Shop No.116, Koppe Arcade, Mavdi Main Road, Rajkot. He would further submit that in such way wife of the petitioner is authorized to stock cough syrup including cough syrup containing the Codeine Phosphate Syrup. He would further submit that the petitioner is falsely involved in the offence. He would further submit that the premises of the petitioner is also falsely raided to find the quantity of Codeine syrup. Learned advocate Mr.Goswami submits that keeping a Codeine syrup or selling the same since is not offence under NDPS Act. He would further submit that the petitioner is falsely involved in the offence. He has placed reliance upon the judgment of the Allahabad High Court in case of Vibhor Rana vs. Union of India – 2021 SCC Online Allahabad 908 to contend that the Hon’ble Allahabad High Court has thoroughly examined the issue that whether codeine phosphate contained article could be said to be contraband drug within meaning of NDPS Act while quashing the offence against the accused. He referred to paragraph 21 to contend that since the Methyl Morphine (commonly known as “Codeine”), Ethyl morphine and their salts are not falling within the definition of manufactured drug as stated in the NDPS Act in view of the notification issued by the Government of India dated

14.11.1985 having No.826 (E) and S.O. 40(E) dated 29.01.1993.

5. Learned advocate Mr.R.J.Goswami would further submit that in March, 2009 the Drug Controller General (India) has issued a letter to Associated Chambers of Commerce and Industry of India in response to request for clarification of drug substance Cough Linctus containing Codeine phosphate stating that:-

“"In this connection this Directorate had already issued a circular letter vide our letter number X-11029/27/05-D dated 26/10/2005 to all State Drugs Controllers with a copy to various associations and a copy Narcotic Control Bureau New Delhi (copy enclosed). The above circular inter alia stated that these preparations (Cough Linctus containing Codeine Phosphate) contains among other drugs Codeine Phosphate 10 mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and its salts they do not fall under the provisions of NDPS Act and the Rules of 1985 but they fall under Schedule H of the Drugs and Cosmetic Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rul