JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J. - Leave granted.

2. This appeal is directed against the common order passed by the Gauhati High Court in Bail Application Nos.885/2012 and 886/2012. The allegations against the appellants concerned, in Bail Application No.885/2012, were that on 16.2.2012 at about 8.30 p.m., based on a secret information, the police intercepted a truck bearing registration No.HR-61-A6641 at Chgolia, Boxirhat, on the National Highway 31 and the vehicle along with appellants was taken to the Golakganj Police Station and that due to lack of proper light facility, the search could not be conducted and, therefore, the vehicle and the appellants were kept in the police station on that night. On the next day i.e. on 17.2.2012 when a search was effected in the presence of the Deputy Superintendent of Police (HQ), Dhubri, Circle Inspector of Golakganj and local witnesses, it revealed that 347 cartons, each carton containing 100 bottles of 100 ml. Phensedyl cough syrup and 102 cartons, each carton containing 100 bottles of 100 ml. Recodex cough syrup were found concealed along with household articles. For transporting such a huge quantity of pharmaceutical products, the driver of the vehicle could not produce any valid documents. Further the chemical analysis of the contents of the cough syrup disclosed that it contained codeine phosphate beyond the prescribed quantity and, therefore, the articles were seized. The appellants were produced before the C.J.M., Dhubri on 18.2.2012 who remanded them to judicial custody.

3. As we are concerned with the Bail Application No.885/12, we do not deal with the details of seizure and arrest effected on accused concerned in Bail Application No.886/12.

4. The appellants moved the Court of Sessions Judge, Dhubri for grant of bail and learned Sessions Judge, by order dated 30.3.2012 rejected the bail application. Thereafter, the appellants moved the High Court, who by the order impugned in this appeal having declined to grant bail; the present appeal has been filed.

5. The learned counsel for the appellants, apart from making his submissions also filed written submissions on behalf of the appellants. The learned counsel submitted that appellants were only transporting cough syrup, that the content of codeine phosphate was less than 10 mg. (per dosage), namely, 5 ml. and, therefore, by virtue of Central Government Notifications bearing S.O.826(E) dated 14.11.1985 and G.S.R.40(E) published on 29.1.1993, no offence was made out under the provisions of the N.D.P.S. Act and, therefore, the rejection of the bail application by the learned Sessions Judge as well as by the High Court was not justified. The learned counsel placed reliance upon certain decisions of the High Court of Punjab and Haryana in support of his submissions. Reliance was also placed upon Rules 65, 97, 61(1) and 61(2) of the Drugs & Cosmetics Rules along with Section 27 of the Drugs & Cosmetics Act in support of his submissions. It was also contended that the appellants have spent more than 180 days in custody since 17/18.2.2012 and were entitled for bail under Section 36A(4) of N.D.P.S. Act read with proviso (a) to Section 167(2) of Cr.P.C.

6. The bail application was opposed on behalf of the State contending that the seized materials, which admittedly contained codeine phosphate of prohibited quantity, were found concealed with household articles in the vehicle, that it was not the case of the appellants that the seized pharmaceutical products were meant for supply to any dealer or shop to be sold by way of medicine under the prescription of approved medical practitioner and having regard to total quantity content of the prohibited substance, the plea of the appellants that provisions of the N.D.P.S. Act are not attracted, cannot be accepted. According to learned counsel for the State, the submission based on the number of days spent by the appellants in the prison was not raised before the High Court and, there