IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P(M) No. 1505 of 2018 Decided on : 22.11.2018 . [ENTITY] Petitioner. Versus [ENTITY] Respondent. Coram: The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 For the petitioner: Mr. [ENTITY], Advocate. For the respondent: Mr. [ENTITY], Addl. A.G., for the respondent-State. [ENTITY], J (oral)
The instant petition, warrants, an, adjudication being meted, vis-a-vis, (a) the aggregate or the total, of, the banned narcotic substance, rather comprising the apposite parameter, for, making a further determination, qua, thereupon, the purported recovery(ies), from, the alleged conscious and exclusive possession of the petitioner, being amenable, for, being categorized, as, (a) commercial quantity or more than commercial quantity thereof, (b) AND the aggregate or the gross weight, of, the entire contents, as, carried in the recovered narcotic Whether reporters of the local papers may be allowed to see the judgment?
substance/charas, likewise constituting the reckonable .
parameter, for making the apt determination, qua effectuation, of recovery(ies) thereof, from, the exclusive, and, conscious possession, of, the accused, being, hence construable to be (i) small quantity or (ii) more than small quantity or (ii)commercial quantity thereof.
2. In FIR No. 28 of 2018, registered against accused/petitioner herein, the FSL concerned (i) has, qua, the quantum, of, 1 kg 400 grams of charas allegedly recovered, from, the exclusive and conscious possession of the bail-applicant and co-accused [ENTITY] and [ENTITY], has opined, qua the quantity, of, resin in the apt transmitted thereto exhibit, hence, being 22.57% and 22.86% w/w, thereupon, prima-facie, the pure content thereof of, resin as extracted from bulk thereof, rather falls within, domain, of, less than, the commercial quality thereof, (ii) yet the aggregate weight, of, the narcotic substance/charas, as, recovered from the exclusive possession, of, the afore co-accused/convicts [ENTITY], and, [ENTITY], without segregating 3
therefrom, the pure contents, of, purified resin rather .
renders, the apposite haul, to fall, within, the domain, of it being construable to be categorized, as, more than commercial quantity, of charas (iii) thereupon reiteratedly also an adjudication, is to be meted qua only any apt pure contents thereof, hence, comprising the apt parameter(s).
3. Mr. [ENTITY], learned counsel appearing, for the petitioner, contends, that, with hence cannabis/charas, occurring at serial No. 23 of, the table appended, with, the [ACT] (hereinafter referred to as the [ACT]), and, with a clear, and, candid prescription, borne therein, wherein rather 100g, is specified, as, small quantity thereof, (i) hence, the aggregate quantum only of purified resin, as, borne in the seized bulk of charas, alone, being construable, to be the apt reckonable principle, for making the further determination, vis-a-vis, the narcotic substance/charas recovered, from the exclusive and conscious possession, of the accused, dehors, the total bulk of charas, hence, falling or not 4
falling, within the domain, of, small or more than small or .
commercial quantity thereof, (ii) specifically, when the table, with, clear explicity hence refers to cannbis, and, omits to make any explicit reference therein, vis-a-vis, the other part of the charas, carried in the seized charas, rather, being also reckonable, nor , with, the total or of the haul or aggregate, being mandated to comprise, the justifiable principle, hence, for making, the apt reckoning qua, the seizure falling, within, the domain of small quantity or more than small or commercial quantity thereof, thereupon only the resin content borne therein, rather comprising, the, apt reckonable parameter.
4. The learned counsel appearing for the petitioner also placed reliance, upon, a judgment of the Hon'ble Apex Court, rendered, in a case titled, as, [PRECEDENT], relevant paragraph(s) No.11 and 12 whereof, stand extracted hereinafter:-
"11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in 5
each 100 ml. bottle if related to the .
permissible dosage, namely, 5 ml.
would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means 'contributing to cure of disease'. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent.
12. As pointed out by us earlier, since .
the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule 'H' drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was rfor therapeutic practice as mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml. content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the [ACT] calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the above referred to notifications, the application of the exemption provided 7
under the said notifications in order to .
consider the appellants' application for bail by the Courts below does not arise."
(p.495-496)
(a)wherein it stands expostulated, qua, for the bail applicant concerned, deriving, the benefits, of, notifications respectively issued, on 14.11.1985, and, on 29.1.1993, it being incumbent, for them to establish (a) the twin conditions qua the contents of narcotic substances imperatively, not, exceeding 100 mg per dose unit, (b) and with a concentration of, not, more than 2.5% in undivided preparation, and, apart therefrom, the other condition, of, it being evidently transported, only for therapeutic practice i.e. for contributing to cure of disease, also, necessitating, its, imperative satisfaction. However, the reliance placed thereupon, is inapt, for the reasons (i) the counsel not bearing in mind the trite factual matrix, as, appertaining to the case supra, as, occurs in preceding paragraph No.10 thereof, wherein, there is a trite display, of the apt recovery, effectuated, from, the accused therein, being vis-
a-vis bottles of Phensedyle cough syrup, whereinwithin .
existed, hence, 183.15 to 189.85 mg of codeine phosphate, and, each 100 ml bottle of Recodex cough syrup, also, contained 182.73 mg of codeine phosphate, (ii) AND obviously, even after, multiplying the aforesaid quantum of codeine phosphate, as, carried in each 100 ml., bottle(s) of Phensedyle cough syrup, and, of Phensedyl, with the respective numerical strength, of, the respective cache, of, bottles, thereupon, also the level of the banned narcotic drug, namely, codeine phosphate, being, in a quantum, whereupon, obviously the carrying thereof, of, even pure contents of codeine phosphate, as, borne in the cache, of, seized bottles, of, Phensedyle cough syrup, and, of Recodex cough syrup, is rendered hence, to fall within the ambit, of, commercial quantity thereof, (iii) hence, in succeeding paragraph No.12, the Hon'ble Apex Court, had propounded that, yet, with a notification of 14.11.1985, and, of 29.1.1993, enjoining upon the accused, to satisfy the aforesaid twin conditions, and, the material thereat also evidently, bearing out, qua its being transported, for 9
therapeutic practice, thereupon, alone all the benefit(s) .
thereof, being accruable, vis-a-vis, the accused.
Contrarily, obviously the level or extent or quantum, of the pure content, of the banned narcotic drug(s), namely, codeine phosphate, as, carried, in each, of the seized bottles, after, segregating therefrom hence the contents of the other part of the mixture, borne in each of the bottle(s), renders, the, apt quantum thereof, to, fall within small quantity thereof, (iv) thereupon, hence the ratio decidendi, propounded, in the aforesaid case, being unavailable for bestowal upon the accused herein, (v) more so when neither the notifications alluded therein, are, espoused hereat, for deriving, the, apposite benefits thereof, nor the twin conditions embodied, therein, are, hereat propagated nor when the extant cache, is, espoused, to be transported, only for therapeutic use, rather is a narcotic drug, than a psychotropic substance, as was thereat. Consequently, reliance upon the case supra, is, inaptly placed. Contrarily, the factual scenario prevailing hereat, is, covered by the pronouncement, made, in [PRECEDENT]'s case (supra), given 10
the afore verdict answering with aplomb, the, conundrum .
qua (a) upon any narcotic drug or psychotropic substance being found standing mixed with one or more neutral substance/s, thereupon for the purpose of imposition of punishment, the pure content of the narcotic drug or psychotropic substance, alone comprising the apt reckonable parameter, b) AND when r hereat, the, resin content is the apposite pure content of psycotropic substance, thereupon the afore pure content, is, the apt reckonable parameter, for granting bail .
5. The learned counsel appearing for the petitioner also places reliance, upon, a judgment of the Hon'ble Apex Court, rendered in a case titled, as, [PRECEDENT], (i) wherein, vis-a-vis, the seizure of 7.10 kg of opium, as, effectuated, from, the exclusive and conscious possession of the accused therein, and, with its being opined, to contain 0.8% morphine, it standing expostulated qua hence the entire mass or gross weight, of the opium rather being the apt reckoner, dehors the percentum of morphine, occurring therein. (ii) It has 11
also been expostulated, therein that the entire quantity or .
the gross weight, of the entire ill substance, being rather recknonable, for making the further apt determination, qua whether the recovered substance, hence falling within small quantity or greater than small quantity or commercial quantity thereof. The apt paragraph No.21 of [PRECEDENT]'s case (supra), stands extracted hereinafter, "21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of [SECTION] of the [ACT] and was rightly convicted under [SECTION] of the [ACT]. The instant case squarely falls under [SECTION] of the [ACT] and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of 12
opium with any other neutral .
substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, [SECTION] becomes totally redundant. Thus, as the case falls under [SECTION], no further consideration is required on the issue. More so, opium derivatives have to be dealt with under [SECTION], so in case of pure opium falling under [SECTION], determination of the quantity of morphine is not required.
[SECTION] is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity."
(iii) Though evidently, the seized contraband i.e. opium, did, contain some per centum of morphine, yet therein, it, has also been propounded, that the existence, of, some per centum of morphine therein, being an irrelevant factor, for 13
determining qua hence the substance or contraband .
seized, from, the exclusive and conscious possession of the accused therein, being construable to be opium, rather the entire quantum, of, the narcotic drug or substance, as, recovered from the exclusive and conscious possession of the accused therein, being the solitary apt determinant,
(iii) thereupon also the aforesaid, expostulation, does not give any leverage to the espousal, of, the counsel for the bail applicants, rather contrarily support therefrom, is, derived by the State, for contending that the gross weight or the aggregate, of the entire contraband, borne in the apt narcotic substances, as recovered, from the conscious and exclusive possession, of the accused, being, the only recknonable factor, for making the apt determination.
6. The learned Addl. Advocate General submits, that with notification bearing S.O.2941(E) of 18.11.2009 whereunder Note 4 in the table, at the end of Note 3, is added, (i) with a prescription therein, qua the quantum or the level of presence, of, the pure banned narcotic drug, in, the seized cache, being the singular, reckonable parameter, 14
for making an apt determination, of, quantification thereof, .
thereupon, the espousal addressed before this Court, by the counsel for the petitioners, hence, rather warranting rejection. The aforesaid submission, is anvilled, upon, a verdict pronounced by the Hon'ble Apex Court in Cr.
Appeal No. 722 of 2017, titled as [ENTITY] & Anr.
vs. Union of India, decided on 3.07.2017, whereunder, the hereinafter extracted questions, stand referred, for determination, by a larger Bench of the Hon'ble Apex Court, and, more particularly with the apt reference, appertaining, vis-a-vis, the legal expostulation settled by the Hon'ble Apex Court in [ENTITY]'s case (supra), being or not being per incuriam, vis-a-vis, the notification of 19.10.2001, rather hence awaiting rendition thereon, thereupon, the benefits of all the trite expostulations, borne in, [ENTITY]'s Case (supra) being not affordable, to the bail petitioners, "(a) Whether the decision in this Court in [ENTITY] (supra) requires reconsideration having omitted to take 15
note of entry No.239 and Note 2(two) of .
the notification dated 19.10.2001 as also the interplay of other provisions of the Act with [SECTION]?
(b) Does the impugned notification issued by the Central Government entail the redefining the parameters for constituting an offence and more particularly for awarding punishment?
(c) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be
considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
(d) Whether [SECTION] of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and 16
"preparation" containing any . manufactured drug?
However, the aforesaid submission is rejected, for the reasons, (ii) qua nowat, with, the larger Bench of the Hon'ble Apex Court, not making any pronouncement, upon the afore-extracted questions, as, referred thereto, (ii) AND in aftermath, with, the vires of the apt notification standing not upheld nor reversed nor the verdict pronounced by the Hon'ble Apex Court, in, [ENTITY]'s case (supra), with, the afore applied clear expostulations (supra) occurring therein, standing neither quashed nor set aside, thereupon, dehors any apt non-rendition thereon , it is not deemed just, fit and appropriate, to curtail the liberty of the bail petitioners. Paramountly also any benefit, strived to be derived by the prosecution, from, [ENTITY] case (supra) cannot prevail, given (a) the reference to the larger Bench, appertaining to not, the, afore verdict, rather appertaining, vis vis, the premier initial verdict rendered in [PRECEDENT]'s case (supra), verdict whereof is directly attractable, vis vis, the controversy at hand, b) 17
thereupon, till the apt reference made to a larger Bench, .
vis vis the efficacy of the pronouncement, occurring in [PRECEDENT]'s case, stands answered, and whereunder the verdict rendered in [ENTITY]'s case is annulled, (c ) thereupto the clout and efficacy, of the verdict rendered in [ENTITY]'s case remains intact, d) AND also only the afore verdicts' efficacy, is to be nowat tested, than, of [PRECEDENT]'s case (supra), efficacy whereof has remained un- referred to the larger Bench, (e) and till the comparative efficacies of both, the afore verdicts are determined by the larger Bench, hence it is deemed fit to nowat follow the decision in [ENTITY]'s case (supra). (f) Even otherwise, the trite factum of pure content of the relevant narcotic drug being or not, the relevant apt reckonable parameter, when stands earlier decided in [ENTITY]'s case, by a Bench strength holding a numerical strength co-equal, to the one which rendered, the, subsequent verdict in [PRECEDENT]'s case (supra) (g) and when the afore earlier pronouncement, as made, vis vis the controvery at hand, may prima-facie, on the principle of propriety be binding 18
on the subsequent Bench of the Hon'ble Apex Court, .
holding a Bench strength, co-equal to the earlier Bench strength, which rendered a verdict, in, [PRECEDENT]'s case (supra), (h) thereupon also till the comparative merit of both the verdicts (supra) are evaluated by a larger Bench, it is deemed fit to follow the initial premier verdict rendered in [PRECEDENT]'s case (supra).
7. At this stage, the learned Additional Advocate General has placed on record, an order rendered upon [CASE NUMBER], by the Hon'ble Division Bench of this Court, upon a reference made to it, by the learned Single Judge, with respect, to the comparative applicability, of, the verdict(s), made, in [PRECEDENT]'s case (supra), and, in [ENTITY] Case, whereon, the Division Bench of this Court, has assigned merit, to the pronouncement made, in, [ENTITY] case. However, the aforesaid verdict is distinguishable, and, may not be applicable hereat, given circumstances since then up to now, rather begetting an immense change, (i) change whereof stands comprised, in, the Hon'ble Apex Court in [ENTITY] case, 19
making, the aforesaid reference, vis-a-vis, a larger Bench, .
(ii) wherein only the validity of the pronouncement, made in [ENTITY] Case, stands referred for determination, to a larger Bench. Since the reference made by the Hon'ble Apex Court vis-a-vis, the conundrum, wherewith this Court is best, prima-facie prevails, upon, the earlier therewith pronouncement r made, upon, an apposite reference, by the Division Bench of this Court, (iii) thereupon, before validating the adjudication made by the Division Bench of this Court, it is deemed fit, to, await rendition, of, an order by the larger Bench, of the Hon'ble Apex Court, upon, a reference made vis-a-vis it, only, vis-a-
vis [ENTITY]'s case. Consequently, the petition is allowed, and, the bail petitioner is ordered to be released, on bail.
subject to his complying with the following conditions:
(i) that the bail applicant shall furnish personal bond in the sum of Rs. 2,00,000/- with two sureties in the like amount to the satisfaction of the learned trial Court concerned.
(ii) that the bail applicant shall join the .
investigation, as and when required by the Investigating Agency;
(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iv) that he shall not leave India without the prior permission of the Court ;
(v) that he shall deposit his passport, if any, with the Police Station concerned; and
(vi) that in case of violation of any of these conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody.
8. Any observation made hereinabove, shall not, be taken as an expression of opinion on the merits, of the case, and, the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
Dasti copy.
22nd November, 2018 (kalpana) ([ENTITY]), Judge.