Unauthorized possession of cough syrup preparations containing codeine, even in concentrations below 2.5%, falls under the regulatory purview of the NDPS Act. In cases involving commercial quantities of such mixtures, the restrictive bail provisions of Section 37 apply, overriding arguments predicated solely on the drug's therapeutic classification.

JUDGMENT :

Introduction

The present Criminal Miscellaneous petition has been preferred by the petitioner for anticipatory bail under Section 482 of B.N.S.S., 2023 in connection with Kuchaikote P.S. Case No. 316 of 2023 dated 24.06.2023, registered for the offences punishable under Sections 27(b)(2)/27(d)/28 of Drugs and Cosmetics Act, 2008 and Section 22 of N.D.P.S. Act, 1985 .

Prosecution Case

2. The prosecution case, as emerging from the written report of Sub-Inspector, Excise of Balthari Check-Post, Gopalganj is that during check, the Truck bearing Registration No. UP32SN-3730 was detained and the following items were recovered from the Truck: (i) 3200 bottles of Eskuf Codeine Syrup, containing 100 ml each, (ii) 06 tin of liquid solution, containing 30 litre each (iii) 18 pages of documents connected with the seized material, (iv) Driving license of the driver, Rakesh Kumar Yadav, (v) One mobile and (vi) Cash of Rs. 3,500/-.

3. 17 pieces of syrup out of the seized syrup was sent to Laboratory. The Truck containing the recovered items was seized and the driver was also arrested on the spot and the subject Kuchaikote P.S. Case No. 316 of 2023 was registered against the driver, Rakesh Kumar Yadav.

Rejection of Anticipatory Bail Petition of the Petitioner by the Court of Sessions, Gopalganj

4. Prior to moving this Court, the petitioner had preferred anticipatory bail petition before the Sessions Court, Gopalganj. However, the anticipatory bail petition filed by the petitioner bearing A.B.P. No. 2189 of 2024 was rejected by Court of Additional District and Sessions Judge-III, Gopalganj, holding as follows :

“5. As per the F.I.R., allegation against this petitioner/accused is that he happens to be owner of seized truck bearing Reg. No. UP32SN3730 wherein 2080 pieces ESKUF Codeine Syrup each measuring 100 ml and 29920 pieces of another cough syrup each measuring 100 ml and 30 litres of liquid solution and cash Rs. 3500 were recovered. The said recovery and seizure were made by the informant police office at Balthari check-post Gopalganj and the driver of the truck namely Rakesh Kumar Yadav was arrested on the spot. The said driver Rakesh Kumar Yadav, who has been charge-sheeted vide charge-sheet No. 478/2023 dated 18.09.2023, in his confessional statement as is recorded in para 13 of the case diary disclosed the name of this petitioner/accused as being the owner of the seized truck and he has also stated in his confessional statement that the petitioner, who is owner of the truck, handed the truck to him (driver Rakesh Kumar Yadav) as loaded with the seized goods.

6. Para 9 of the case diary shows that the seized/recovered cough syrup were prohibited by the Government vide notification published in Gazette of India dated 02.06.2023 and the recovery is of 24.06.2023, i.e. recovery was made after publication of notice of prohibited cough syrups. Investigation in this case is still going on.

7. Hence, considering the said circumstances, I do not find it fit to admit the petitioner/accused to the privilege of anticipatory bail, and accordingly, anticipatory bail prayer of the petitioner/accused is hereby rejected.”

5. I heard learned counsel for the petitioner and learned APP for the State.

Submission on behalf of the Petitioner

6. Learned counsel for the Petitioner submits that the Petitioner is innocent and has falsely been implicated in this case. He further submits that the prosecution against the Petitioner is vitiated in view of the non-compliance of the mandatory provisions of Section 42 of the N.D.P.S., Act at the time of making search and seizure.

7. He further submits that the petitioner is only owner of the Truck in question bearing Registration No. UP32SN-3730 and he has given his truck to Transporter-Countrywide Logistics on hire and at the time of seizure of his vehicle, it was carrying consignment of S.B. Pharma, Lucknow, U.P. to be delivered to M/S J.N. Enterprises and hence, he has nothing to do with the alleged offence.

8. He furth