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TMI Blog2017 (3) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... sulted in finding crystalline substance which tested positive for Amphetamine, a psychotropic substance. Samples were drawn. The total substance seized was 25.160 kgs. The value thereof INR 50,32,000/- in domestic market and INR 2,51,60,000/- in the international market. In a follow up action, two carton boxes containing Zopalet and Zolfresh brand tablets containing 10 mg of 'Zolpidem Tartrate' in each tablet and one zip lock cover containing Zolpidem Tartrate tablets without packing were recovered from A3 and A4. The tablet by name Zopalet was seen to be manufactured in Pakistan while Zolfresh was manufactured by a Company in India. Zolfresh was the trade mark of the Abott Group of Companies. The recovery particulars were informed as follows : Zolfresh tablets 2819 strips with each strip having 10 Zolpidem Tablets and 168 loose tablets. Zopalet tablets 1819 strips with each strip having 10 Zopidem tablets and 261 loose tablets. in all, 46809 tablets of Zolpidem. The tablets without blister packing were found to weigh 2500 gms. The market value of those tablets was Rs. 32,84,700/-. 4. A3 and A4 confessed to not holding any license or permit to possess tablets and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the presence of Ephedrine, a controlled substance under the NDPS Act, 1985 (as amended) and 28358 tablets (weighing 6.522 kg @ 0.23 gms/tablet) of Zolafresh the sample of which on test by Custom House Laboratory, Custom House, Chennai is reported to give positive test for the presence of Zolpidem, a Psychotropic substance under the NDPS Act, 1985 (as amended)." 6. The case is pending trial in C.C. No. 4 of 2016 on the file of learned Special Judge, NDPS Cases, Chennai. Charges have been framed against the accused for offences u/s. 9A r/w 29, 9A r/w 25A of the Act in respect of dealing with controlled substance and 8(c) r/w 29 of the Act, 8(c) r/w 22(c) and 8(c) r/w 28 of the Act. Challenge herein is to charge No. 4 imputing offence u/s. 8(c) r/w 22(c) of the Act. 7. Heard learned senior counsel for petitioners and learned Special Public Prosecutor (NDPS cases). 8. Section 37 of the Act makes cognizable and non-bailable offences thereunder and imposes limitations on grant of bail in respect of offences u/s. 19, 24 and 27A of the Act and also for offences involving commercial quantity. The concern of petitioners is only over charge No. 4 as the same as it pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof. 11. Learned senior counsel for petitioners relied on the judgment of Supreme Court in Ouseph alias Thankachan v. State of Kerala [(2004) (4) SCC 446], a case wherein the accused was found in possession of 110 ampoules of buprenorphine, trade name 'Tidigesic'. 1 gm. of such psychotropic substance was specified to be the small quantity. Each ampoule was found to contain 0.3 mgs. of the psychotropic substance. Such actual content of psychotropic substance was taken into consideration in determining that the accused was in possession only of 'small quantity'. Learned senior counsel referred to paragraph No. 17 of the judgment of the Division Bench of this Court in John Paul v. Union of India [W.P. No. 28715 of 2015], wherein a challenge to the constitutional validity of Notification S.O. No. 2941(E)/2009, dated 18-11-2009 was repudiated. Paragraph No. 17 of such order reads : "17. Note No. 4 inserted by the impugned Notification does not make any new substance, which is not already stipulated as a narcotic drug or psychotropic substance. The mischief sought to be avoided by the Notification is too obvious to be seen. The Law does not want persons possessing quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the table as an item or substance automatically included in the table." 13. Contending that the entire weight of the Zolfresh tablets seized would have to be taken into account for determining whether the accused was found in possession of psychotropic substance in commercial quantity, learned Special Public Prosecutor relied on the judgment of the Division Bench of this Court in M. Veludurain v. The State [2012 (1) LW (Crl) 70] and submitted that the seizure in the case was effected on 12-12-2015 and this Court had held that purity test need not be conducted in respect of offences committed on or after 18-11-2009. Learned Special Public Prosecutor submitted that this Court had done so following the decision of the Apex Court in Harjit Singh v. State of Punjab [2011 (4) SCC 441]. 14. This Court has considered the rival submissions. 15. Section 22 of the Act reads as follows : "22. Punishment for contravention in relation to psychotropic substances. - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeping with Section 2(xxiii) of the Act. The table drawn up in keeping with Section 2(viia) and (xxiiia) of the Act lists 'Zolpidem' as Item No. 238 and informs small quantity to be 10 gms. and commercial quantity to be 250 gms. Item No. 239 of such table reads as follows : Sl. No. Name of Narcotic Drug and Psychotropic Substance (international non proprietary name (INN)) Other non-propriety name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm./kg.) 1 2 3 4 5 6 239. Any mixture or preparation that of with or without a neutral material of any of the above drugs. --- * ** 21. This Court would begin by informing that the opening words 'any mixture or' in Item No. 239 of the table are redundant since Section 2(xxiii) of the Act which defines 'preparation' places preparation in two distinct slots. The preparation in relation to a Narcotic Drug or Psychotropic Substance means (1) any one or more such drugs or substances in dosage form, Or (2) any solution or mixture in whatsoever physical state containing one or more such drugs or substances. It is to be noticed that the word 'or' is used disjunctively. When so understood, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Special Public Prosecutor. In holding against the accused and finding them in possession of commercial quantity of codeine phosphate (listed as Item No. 28 in the table), the Apex Court took into consideration the fact that each 100 ml. bottle of Phendsedyl cough syrup contained 183.15 to 189.85 mg. of codeine phosphate and each 100 ml. bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate and accused were in possession of 347 cartons containing 100 bottles in each carton of 100 ml. of Phensedyl cough syrup and 102 cartons, each containing 100 bottles of 100 ml. of Recodex cough syrup and thus the very quantum of codeine phosphate in their possession, leaving out the other components of the syrup in dosage form was itself above the commercial quantity of 1 kg. As noted earlier, in Ouseph's case, the actual drug content in the ampoules of buprenorphine (tidigesic) was taken into consideration in informing the quantity to be small quantity. Ouseph's case related to occurrence before Notification in S.O. 2941(E), dated 18-11-2009 while Md. Sahabuddin's case was one that arose thereafter. The consideration has remained the same. Indeed, it cannot be otherwise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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