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2022 (9) TMI 1151 - HC - Indian LawsCommercial quantity under the NDPS Act - percentage of a narcotic drug - recovery of 110 bottles of Phensedyl New weighing 100 gms each and having a Codeine concentration of 0.17% per bottle - Seeking grant of bail In case of manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between or not? Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug? HELD THAT:- It is an admitted position that in the present case, the seized substance i.e. 110 bottles of ‘Phensedyl New’ is a ‘preparation’ within the meaning of Section 2(xx) of the NDPS Act. Such ‘preparation’ to be declared as ‘manufactured drug’ would have to be notified by the Central Government under Section 2(xi)(b) of the NDPS Act. All ‘manufactured drugs’ are included within the definition of the ‘narcotic drug’ under Section 2(xiv) of the NDPS Act. In other words, a preparation to be included in the NDPS Act, would at the first instance have to be declared a ‘manufactured drug’. At this stage, it is also pertinent to take note of Entry 35 in notification titled “Manufactured Narcotics Drug” (as contained in Government of India Notification No. S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 21.09.1993 and S.O. no. 1431 (E) dated 21.06.2011) issued in exercise of powers conferred by Sub Clause (b) of Clause (xi) of Section 2 of the NDPS Act which pertains to substance Methyl Morphine - as per the aforesaid notification, if any ‘manufactured drug’ within the meaning of Section 2(xi)(b) of NDPS Act contains not more than 100 mg of Methyl Morphine, commonly known as Codeine, per dosage unit, and in that drug, Codeine is compounded with one or more ingredients and if in the said drug the concentration of Codeine is not more than 2.5% in undivided preparation, and the drug has been established in therapeutic practice, it will not be a ‘preparation’ within the meaning of ‘manufactured drug’ and, therefore it will not to be a ‘narcotic drug’. If the contraband seized falls within the provisions of NDPS Act, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between - If the alleged contraband seized falls within the definition of ‘manufactured drug’ under Section 2(xi) of the NDPS Act, then the entire notification including the aforesaid ‘Note 4’ will be applicable. This matter may be placed before the appropriate bench for considering the question of grant of bail.
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