TMI Blog2006 (11) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta Medical Charitable Society (BSGMCS). Advertisements were, allegedly, being issued by him in various newspapers claiming that medicines used by him were prepared from herbal plants collected from the Banks of Ganges and by application thereof patients suffering from epilepsy can be cured. The State, however, on the allegation that in his medicine, he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, raided the premises of the said clinics. 70 kgs. pure phenobarbitone were recovered. It is alleged that through NCPL 336.88 kgs., 524 kgs., 537.32 kgs. and 117 kgs. of drugs (phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively and through BSGMCS 398.65 kgs., 406.88 kgs., 519.95 kgs. and 235.12 kgs. of drugs (phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively. The drugs allegedly used to be dispatched by post also. Appellant was arrested on 13.8.2004 and since then he is in jail custody. Charges were framed against him under Section 8 read with Section 22 of the Narcotic Drugs Psych ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Section 2 (viia) defines "commercial quantity" to mean any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. "Small quantity" has been defined in Section 2(xxiiia) to mean any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Section 8 provides for prohibition in respect of certain operations, stating : "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) 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 scien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs specified therein. Section 22 provides for a penal provision for three categories of cases in regard to contravention involving small quantity, contravention involving quantity lesser than commercial quantity but greater than small quantity and contravention involving commercial quantity. The Central Government is conferred with the power under Section 9 read with Section 76 to fame rules, pursuant whereto rules have been framed, known as Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred as 'the Rules'). Chapter VI of the Rules deals with import, export and transshipment of narcotic drugs and psychotropic substances. Rule 53 of the Rules reads thus : "53. General prohibition Subject to the other provisions of this 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 is 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 VII-A." Rule 64 provides for general pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession." Rule 67 provides for transport of psychotropic substances. It reads as under : "67-A. Special provisions regarding manufacture, possession, transport, import-export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes. Notwithstanding anything contained in the foregoing provisions of these rules (a) a narcotic drug and psychotropic substance may be used for (i) scientific requirement including analytical requirements of any Government laboratory or any research institution in India or abroad; (ii) very limited medical requirements of a foreigner by a duly authorised person of a hospital or any other establishment of the Government especially approved by that Government; (iii) the purpose of de-addiction of drug addicts by Government or local body or by an approved charity or voluntary organisation or by such other institution as may be approved by the Central Government. (b) persons performing medical or scientific functions shall keep records concerning the acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prohibitions, 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 provisions contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule-I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of sale, purchase, consume or use of the psychotropic substances specified in Schedule-I, Rule 65 prohibits manufacture of psychotropic substances; whereas Rule 66 prohibits possession, etc. of psychotropic substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs which would come within the purview of description of the expression "medicinal purposes". The exceptions contained in Section 8 of the 1985 Act must be judged on the touchstone of : (i) whether drugs are used for medicinal purposes. (ii) whether they come within the purview of the regulatory provisions contained in Chapters VI and VII of the 1985 Rules. Chapter VII-A of the 1985 Rules which was introduced by a notification dated 25.6.1997 with effect from 27.6.1997 provides for special provisions regarding manufacture, possession, transport, import-export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes. It, therefore, permits use of narcotic drugs and psychotropic substances for the purposes mentioned therein. Rule 67-A does not abrogate the provisions of Rule 53 or Rule 64 provided for in Chapters VI and VII of the 1985 Rules. They are in addition to the said provisions. It, however, contains some more restrictions. We are only concerned with Clause (b) of Rule 67-A, in terms whereof the records concerning the acquisition of the substance and the details of their use in Form 7 of those Rules are to be mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is empowered by the Rules to permit and regulate the matters mentioned therein. Rule 66 itself permits possession of psychotropic substance below a specified quantity and subject to the conditions stated therein. Thus if the possession of psychotropic substance is justified under the said rule, no separate permit is required to be issued to the person possessing such psychotropic substance because the rule itself permits possession of such psychotropic substance to the extent mentioned in the rule and subject to the conditions laid down therein." {See also Hussain vs. State of Kerala [(2000) 8 SCC 139].} In the instant case, we are of the opinion that Section 37 of the 1985 Act would prima facie has no application in view of the exception contained in Section 8 thereof read with the Rules. The views which we have taken appear also to have been taken by the High Court of Delhi in Rajinder Gupta vs. The State [123 (2005) DLT 55] as also the Bombay High Court in Pradeep Dhond vs. Intelligence Officer, Narcotic Control Bureau, Ballard Estate and Anr. [Criminal Application No. 6787 of 2005] disposed of on 7th February, 2006 by the Bombay High Court. Respondent is charged with ..... 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