ORDER

Passed on 23/04/2021 This is the first bail application filed by applicant under Section 439 of the Cr.P.C. Applicant Pappu Gupta was arrested on 23/08/2020 in connection with Crime No.227/2020 registered at Police Station Java, Distt. Rewa (MP) for the offence punishable under Sections 8, 21, 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and Section 5/13 of the Madhya Pradesh Drugs Control Act.

2. As per the prosecution case, on 22/8/2020, on the information of the informant that the co-accused Sanju @ Sandeep Tiwari who was coming to Java from Nagma side was transporting cough syrup illegally for selling, Shri B.P Verma, Assistant Sub-Inspector Police Station Jawa, along with other members of the police force went to village Shitalha and upon reaching there, he waited for the applicant.

After a while, co-accused Sanju @ Sandeep Tiwari was seen coming on a red colour motorcycle bearing registration no. MH04 M6610 hanging a bag on the back. He apprehended him with the help of other members of the police force. While searching his bag, he found 65 bottles of Welcyrex cough syrup of 100 ml each manufactured by Plenteous company containing 10 mg. (Codeine Phosphate) in each 5 ml dose that were being transported illegally by him. On interrogation he informed the police that he had purchased that cough-syrup from the applicant so police also arrested the applicant Pappu Gupta.

3. Learned counsel for the applicant submitted that 65 bottles of Welcyrex Cough Syrup containing Narcotic Drug (Codeine Phosphate) allegedly been seized from the possession of the co-accused Sanju @ Sandeep Tiwari falls within the category of “Essential Narcotic Drugs” as defined under Section 2 (viiia) of the NDPS Act not under the “manufactured drug” or psychotropic substance. He further submitted that Section 2 (viiia) of the NDPS Act has been inserted by the Amendment Act no.16 of 2014 which has created a new category of narcotic drug i.e. “essential narcotic drug” and Chapter “VA’’ has been inserted vide notification dated 5/5/2015 regulating possession of “essential narcotic drug”. Rules 52A to 52M prescribe the quantity of Methyl Morphine (Codeine) falling under exempted category can be kept by a person, thus cough syrup falls in this category and for violation of these rules, the punishment provided is under Section 32 of the NDPS Act. So, provisions of Section 37 of the Act are not attracted. 4. Learned counsel of the applicant has also drawn attention of the Court towards the definition of "Narcotic Drug", and the definition of "Psychotropic Substance" to say that Welcyrex Cough Syrup containing Narcotic Substance (Codeine) less than the prescribed quantity of 'Codeine' per dosage unit would neither come under the definition of "Narcotic Drug" nor under the definition of "Psychotropic Substance", because it is covered under the exception provided under Section 2 (xi) (b) of the N.D.P.S.Act. 5. He further submitted that Codeine which is otherwise a “Manufactured Drug” as defined under Section 2(xi) of NDPS Act r/w notification S.O.826(E) 1985 entry no.35 and possession of same is an offence under section 21 of the NDPS Act, but it has one exception which reads as under :-

“those drugs which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in Therapeutic practice.” 6. Will not fall in this category and all cough syrups manufactured by drug companies, containing codeine comply with this requirement so they do not fall in the category of “manufactured drug” as they have been specifically exempted under the Notification issued by Central Government.

7. In this regard learned counsel also placed reliance upon the judgement of the Hon’ble A