TMI Blog2014 (8) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... r Orders made thereunder. The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances. - conclusion reached by the various High Courts that prohibition contained under Section 8 is not attracted in respect to all those psychotropic substances which find a mention in the Schedule to the Act but not in Schedule-I to the Rules framed under the Act is untenable. Analysis of the implications of Section 80. Application of the Drugs and Cosmetics Act, 1940 not barred.—The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder. of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of some psychotropic substance mentioned in the Schedule to the Act. Eventually, the question is whether persons accused of committing an offence under the Act could be enlarged on bail in view of the stipulations contained under Section 37 of the Act. In some of these cases, bail was granted by the concerned High Court and in some cases, bail was rejected. Aggrieved by such orders, either the State or the accused preferred these appeals. 6. Section 37 Section 37 - Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27 A and also for offences involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces. Both the expressions are defined under the Act. Section 2(xiv) defines narcotic drug as follows:- narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods; 10. The words coca leaf , cannabis , opium , and poppy straw occurring in the definition of narcotic drug are themselves defined under Sections 2 (vi), 2(iii), 2(xv) and 2(xviii) respectively. 11. Section 8 prohibits the cultivation by any person of any coca plant, opium poppy or cannabis plant and also prohibits the gathering of any portion of coca plant. It further stipulates that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume or indulge in either inter-state trade or international trade (all these prohibited activities hereinafter collectively referred to as DEALING IN ) of any narcotic drug or psychotropic substance. Section 8 itself contains certain exceptions to the general prohibition as described above. Section 8. Prohibition of certain operations. -No person shall (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. prescribes the punishments for the violation of various activities prohibited under Section 8(c). Depending upon the quantity of the psychotropic substance involved in the case, the punishment prescribed also varies. If the quantity is small, the punishment extends upto 6 months. The expression small quantity is defined under Section 2(xxiiia) Section 2 (xxiiia): small quantity , in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.. If the quantity is less than commercial quantity as defined under Section 2(viia), but greater than the small quantity, the punishment may extend upto 10 years of rigorous imprisonment apart from fine. When the quantity exceeds t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that prosecution. Explanation. -In this section culpable mental state includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 17. The ambit and scope of section 37 was considered by this court in two earlier decisions in Union of India v. Thamisharasi, (1995) 4 SCC 190 and Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549. The latter of the two judgments after taking note of the earlier decision explained the context of section 37 as follows: - 6. As observed by this Court in Union of India v. Thamisharasi clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstances specified in Schedule I to the Rules, subject of course to the provisions of Chapter VIIA. Rule 53A prohibits export of the narcotic drug or psychotropic substance etc. specified in Schedule-II to the Rules to certain countries or to the regions specified in the Schedule. The further details of the chapter are not necessary for our purpose. 19. The subject matter of Chapter VII is psychotropic substances. Rule 64 prohibits each of the activities specified under Section 8(c) of the Act, DEALING IN all the psychotropic substances specified in Schedule-I of the Rules. Rule 64 - No person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule-I. In other words, Rule 64 reiterates the prohibition contained under Section 8(c) of the Act, w.r.t. some of the psychotropic substances mentioned in Schedule-I to the Act. 20. Whereas Rule 65 stipulates that with reference to the psychotropic substances other than those specified in Schedule-I to the Rules could be manufactured subject to the limitation specified under Rule 65. In other words, notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horisation under the 1940 Act or Rules made thereunder coupled with the absence of mention of a particular psychotropic substance (found in the possession of an accused) in Schedule-I to the Rules framed under the Act excludes the application of the Act. 23. It is in the background of the above submissions, the legality of the conclusion recorded by the Bombay High Court that the absence of mention of a particular psychotropic substance in Schedule-I to the Rules excludes the application of Section 8, notwithstanding the fact that such a drug is included in the Schedule to the Act, is required to be decided. 24. Before we examine the correctness of various submissions, we deem it appropriate to analyze and find out the true scope and ambit of section 8(c). Section 8(c) in no uncertain terms prohibits the DEALING IN any manner in any narcotic drug or psychotropic substance. However, an exception to such prohibition is also contained in the said Section. Section 8. Prohibition of certain operations No person shall xxx xxx xxx xxx 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one reached by the various High Courts as noted above is supported by a judgment of this Court in Rajesh Kumar Gupta (supra). At para 19, it was held; 19. It has not been brought to our notice that the 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under Section 9 of the 1985 Act read with Section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import, export and trans-shipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I appended thereto is prohibited. Such prohibition, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general prohibition contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I is prohibited. Provided that nothing in this rule shall apply in case the drug substance in imported into or exported out of India subject to an import certificate or export authorisation issued under the provision of this Chapter and for the purpose mentioned in Chapter VIIA. reiterates an aspect of the larger prohibition contained in Section 8(c) i.e., the prohibition of import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I to the Rules. The proviso thereto however enables the import into and export out of India on the basis of an import certificate or export authorisation issued under the provisions of Chapter VI. The subsequent Rules stipulate the conditions subject to which and the procedure to be followed by which some of the narcotic drugs and psychotropic substances could be imported into India or exported out of India. For example, opium is a narcotic drug by definition under Section 2(xiv) of the Act whose export and import is prohibited under Section 8(c). But Rule 54 54. Import of opium, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They are- (1) any research institution or a hospital or dispensary maintained or supported by Government etc. Rule 66(2). (2) individuals where such possession is needed for personal medical use subject of course to the limits and conditions specified the two provisos to Rule 66(2). 33. Rule 66 reads as follows Rule 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 authorized 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 authorized to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorized under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific 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 dispensa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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