Crl.M.No.M-17142 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.M.No.M-17142 of 2010 (O&M) Date of Decision: December 8, 2010 Harjinder Singh @ Jinda .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.SPS Sidhu, Advocate for the petitioner. Mrs..Bhavna Gupta, D.A.G., Punjab. ..... RAM CHAND GUPTA, J. The present petition filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in case FIR No.36, dated 12.4.2010, under Section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as `NDPS' Act), registered at Police Station Mallanwala, District Ferozepur. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Special Judge, Ferozepur, vide which the application filed on behalf of present petitioner for grant of regular bail was dismissed. Brief allegations are that police party headed by Naveen Kumar, ASI was on patrol duty and when they reached about ½ km from village Mallanwala towards Jaimalwala, a person was seen coming from road alongwith a bag in his right hand. He tried to turn towards the fields after seeing the police party and hence, on suspicion, he was apprehended and searched as per Rules and on search 33280 tablets, 1480 capsules and 168 injections were recovered. Some of the medicines were in pouches. After separating samples, the samples and the residue were sealed in separate parcels. Report Forensic Science Laboratory has been received vide Crl.M.No.M-17142 of 2010 (O&M) -2- which the following ingredients were found in the 9 samples sent for examination:- “Annexure `A' Report No.409/10/Toxi./FSL/Pb., in FIR No.36, dtd. 12.1.10, P.S. Mallanwala (Ferozepur) Ingredients present Average quantity in mg/ tablet/ capsule/ ml. In the parcels no. 1 2 3 4 5 6 7 8 9 Diphenoxylate 2.4 2.3 2.4 2.3 - - - - - hydrochloride Atropine sulphate 0.024 0.024 0.025 0.025 - - - - - Alprazolam - - - - 0.48 0.49 - - - Dextropropoxyphene - - - - - - 64.8 - - hydrochloride Paracetamol - - - - - - 399.8 - - Nitrazepam - - - - - - - 9.8 - Pheniramine Maleate - - - - - - - - 22.50” It has been contended by learned counsel for the petitioner- accused that he is doing practice as Registered Medical Practitioner and that he has been registered with Registrar, Para Medical Council (Punjab), Mohali, and that he is having certificate issued by Para Medical Council, Mohali, as Annexure P2. It is further contended that recovered medicines do not come under the ambit of NDPS Act and that at the most offence under Drugs and Cosmetics Act is made out. It is further contended that even if it is taken that some of the recovered medicines fall under the ambit of NDPS Act, the same comes under small quantity as per the table given under the NDPS Act and hence petitioner deserves concession of bail. He has also placed reliance upon State of Uttaranchal v. Rajesh Kumar Gupta, 2006(4) RCR (Criminal) 974. Bail application has been vehemently opposed by learned State counsel on the plea that the petitioner is neither a licensed chemist nor he was having any bill or invoice for purchasing the drugs recovered from his possession. It is further contended that the alleged certificate, Annexure P2, placed on record by petitioner was got verified from Para Medical Council (Pb.), Mohali, who issued the same and it has been mentioned in the verification report that the same was issued to the petitioner only for providing primary medical aid with essential drugs, which are mentioned in Crl.M.No.M-17142 of 2010 (O&M) -3- the certificate itself and that nobody can run chemist shop in any area with the help of this registration certificate. List of essential drugs which were mentioned in the certificate itself was also attached alongwith verification report. Hence, it is contended that petitioner was not authorised to keep the recovered drugs in his possession even as per certificate, Annexure P2. It is further contended that even if it is taken that the quantity of ingredients present in parcel Nos.1, 2, 4, 7 and 9 is within permissible limits as per notification and however, as per report of Chemical Examiner, in Parcel No.5, quantity of Alprazolam has been found to be 0.48 mg per tablet and in parcel No.6, it is found to be 0.49 mg per tablet. It is further contended that vide parcel no.5, 1800 tablets of Alprakenn were recovered from the possession of petitioner-accused and that as per Serial No.178 of the table under the Act, quantity of 100 gm or more than 100 gm comes under commercial quantity. It is further contended that weight of per tablet is 156 mg. Further contends that as per latest notification bearing No.S.O.2941(E) dated 18.11.2009, the entire weight of the tablets is to be taken into consideration for the purpose of arriving at a conclusion as to whether the recovered material comes under the small or commercial quantity and hence, it is contended that weight of total recovered material of Alprazolam as per parcel No.5 comes to 280.80 grams, which comes under commercial quantity. Hence, it is contended that even if recovery of no other material is taken into consideration, the drugs recovered from petitioner-accused under parcel No.5 alone comes under commercial quantity. There is force in the argument of learned counsel for the respondent-State. Psycotropic substance has been defined in Section 2(23) of the Act, which reads as under:- “ `Psychotropic Substance' means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;” Further, Section 8 of the Act prescribes prohibition for possession of psychotropic substance, which reads as under:- “8. Prohibition of certain operations.- No person shall- (a) Cultivate any coca plant or gather any portion of coca plant; Crl.M.No.M-17142 of 2010 (O&M) -4- or (b) Cultivate the opium poppy or any cannabis plant; or (c ) Produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, an subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.” The possession of any psychotropic substance in contravention of the provisions of the Act and the Rules has been made punishable under Section 22 of the NDPS Act. As per schedule attached with the NDPS Act, Alprazolam has been mentioned at serial No.30 and hence, Alprazolam is a psychotropic substance, possession of which without any authority is punishable under Section 22 of the NDPS Act. Certain drugs were also exempted as per subsequent notification issued by Government of India as argued by learned counsel for the petitioner and however, Alprazolam is not one of the said drugs mentioned in the notification. Further as per notification issued vide notification No.S.O.2941 Crl.M.No.M-17142 of 2010 (O&M) -5- (E) dated 18.11.2009, the quantities shown in column Nos.5 and 6 of the table relating to respective drugs shown in Column No.2 was applied to the entire mixture and not just its pure drug content. The same reads as under: “ In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055(E), dated 19th October, 2001, namely:- In the Table at the end after Note 3, the following Note shall be inserted, namely:- (4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and salts of these drugs including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.” Rule 66 of the NDPS Rules, 1985, also prohibits possessing of any psychotropic substance unless a person lawfully authorised to possess such substance for any of the purposes under the Rules. The same reads as under:- “66. Possession, etc., of psychotropic substances.-(1) No person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under these Rules. (2) Notwithstanding anything contained in sub-rule (1), any research institution or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorised under the 1945 Rules, may possess a reasonable Crl.M.No.M-17142 of 2010 (O&M) -6- quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person; Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time: Provided further that an individual may possess the quantity of exceeding one hundred dosage units at a time but not exceeding three hundred dosage units at a time for his personal long term medical use if specifically prescribed by a Registered Medical Practitioner. (3) The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession” In the present case, as already discussed above, petitioner was not an authorised licensed holder to run a chemist shop, hence his possession can be taken as an individual. The certificate on which reliance has been placed by petitioner-accused does not authorise possession of tablet of Alprazolam, in such a large quantity. Rajesh Kumar Gupta's case (supra) is of no help to the case of petitioner as in that case accused was Ayurvedacharya. He was having a licence for keeping in possession the drugs. He was also having an Ayurveda Shastri degree. Even as per notification issued by State of Uttar Pradesh dated 24.2.2003, the practitioners of Ayurvedic system of medicines are authorised to prescribe allopathic medicines also. Accused used to run a clinic commonly known as `Neeraj Clinic'. He was said to be assisted by eight other medical practitioners being Allopathic and Ayurvedic doctors and the medicines seized were found mentioned in Schedules G and H of the Drugs and Cosmetics Act and none of the medicines were found Crl.M.No.M-17142 of 2010 (O&M) -7- placed under schedule 1 appended to 1985 Rules and on these facts, it was held that provisions of Section 8 of the NDPS Act would not be applicable in that case. Release of petitioner on bail has been vehemently opposed by learned State counsel on the plea that there are reasonable grounds for believing that he is guilty of offence under the NDPS Act and that he is likely to commit offence if released on bail. In view of the aforementioned facts and in view of heavy recovery of narcotic substance from the possession of the petitioner- accused, satisfaction of this Court cannot be recorded that there are reasonable grounds for believing that petitioner is not guilty of offence under the NDPS Act and that he is not likely to commit any offence while on bail as provided under Section 37 of the NDPS Act. Hence, in view of rigor of Section 37 of the NDPS Act, petitioner is not entitled for grant of regular bail in this case. In view of these facts and without expressing any opinion on the merits of the case, the present petition filed by petitioner-Harjinder Singh @ Jinda for grant of regular bail is dismissed being devoid of any merit. 8.12.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter ? Yes/No.