TMI Blog2017 (12) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... ll date and his health condition is very bad and was advised to take complete rest. Further, the petitioner was also enlarged on interim bail on medical grounds and got proper treatment in the Private Hospital and therefore, there is no problem in his health condition, if at all, he needs treatment, he can avail medical facilities from the Government Hospital. Bail cannot be granted - petition is dismissed. - CRL OP(MD) No.23400 of 2016 - - - Dated:- 20-12-2017 - Mr. M. Dhandapani J. For the Petitioner : Mr. Veera Kathiravan Senior Counsel For M/s. Veera Associates For the Respondent : Mr. Arul Vadivel @ Sekar Special Public Prosecutor For Customs ORDER : The Court Made the following order :- The petitioner/Accused No.2, who was arrested and remanded to judicial custody on 29.04.2016 for the alleged offences punishable under Sections 8 (c) of NDPS Act, 1985 and punishable under Sections 22(c), 27(A), 28, 29 of NDPS Act, 1985 read with Rules 65(A), 66 and 67 of NDPS Rules, 1985, in Case O.R.No.1/2016 CIU-Trichy, on the file of the respondent, seeks bail. 2.The case of the prosecution is that one parcel found in M/s.Shri Renganathan Speed Parcel Service, No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not committed any offence. (ii) the petitioner was not present in the place of occurrence and the contraband was not recovered from the petitioner. (iii)The petitioner was arrested only based on the confession statement secured by the prosecuting agency, which was obtained from A1 and A3 which was not informed to the higher officials. 8.Even according to the prosecution, the contraband seized by the respondents is only 130 grams which is less than commercial quantity as per entry in Sl.No.239 of the notification issued by the Central Government, dated 18.11.2009 and also the medical grounds. In support of his contentions, the learned Senior Counsel for the petitioner relied on the following judgments. (i)In Narcotics Control Bureau Vs.Kishan Lal and others reported in 1991 (1) SCC 705; (ii)In Dolat Ram and others Vs. State of Haryana reported in 1995 (1) SCC 349; (iii)In Radhakrishnan and Another Vs.State by Inspector of Police, Kanyakumari reported in (1995 (1) SCC 349); (iv)In Karnali Singh Vs.State of Haryana reported in 2009 (8) SCC 359 and (v)In Tofan Singh Vs. State of Tamil Nadu reported in 2013 (12) SCALE 552 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Weight of the narcotic/psychotropic is in the medicine Finding of the Court Result 01. CRM-M 20589/2011 Gurinder Singh Vs. State of Punjab Momotil Tablets 25000 Diphenoxylate Hydrochloride 2,4 mg in each tablet Commercial quantity Bail dismissed 02. CRM-M 20803/2011 Kashmiri Lal Vs. State of Punjab Phenotil tablets 20000 Diphenoxylate Hydrochloride 2.3 mg in each tablet Commercial quantity Bail dismissed 03. CRM-M 20407/2011 Parveen Kumar Vs. State of Punjab 7.980 kgm mixture of Dextroproproxyphene Hydrochloride and paracetamol Dextroproproxyphene Hydrochloride 315.60 grms Commercial quantity Bail dismissed 04. CRM-M 19588/2011 Sanjiv Kumar Vs. State of Punjab 2 kgm mixture of Dextroproproxyphene Hydrochloride and paracetam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bail dismissed 12. CRM-M 7097/2011 Bhushan Kumar alias Bhusha Vs. State of Punjab 30000 tablets of Lomotil (186 grms) Diphenoxylate 2.4 mg in each tablet Commercial quantity Bail dismissed 13. CRM-M 12299/2011 Rajinder Singh Vs. State of Punjab Various drug without bill/ document Diphenoxylate Commercial quantity Bail dismissed 13.He would also rely upon an unreported decision of this Court in Mohamed Ali Vs. The State rep by the Inspector of Police made in Crl.O.P(MD)No.15947 of 2016, dated 08.06.2017 and refer the following paragraphs in support of his contentions. 13.To be precise, the learned Judge has held that each tablet of Zolfresh contains 10 mg. of Zolpidem and he has multiplied it with the number of tablets and the resultant figure, viz., 184.15 gms. has been determined as the quantity seized. Since 184.15 gms. falls between small quantity and commercial quantity, vis-a-vis Zolpidem, the learned Judge has di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Drugs and Cosmetics Act, it was incumbent on the manufacturer to disclose the dosage strength in the strip, on account of which, 10 mg. was found to be printed on the strip. 10 mg. printed on the strip is not the weight of the tablet. The weight of one tablet will approximately be 0.23 gms. 10 mg. would refer to the potency of the active ingredient, viz ., Zolpidem and the medical practitioner would prescribe the dosage based on the age, weight and intensity of the ailment of the patient. What would happen if an illicit laboratory manufactures the same tablets in huge quantities without complying with any of the requirements stipulated under the Drugs and Cosmetics Act and distributes the same in ordinary plastic covers to the vulnerable section of the society through middlemen and conduits? Most of the illicit units that manufacture narcotic and psychotropic substances are located in the porous Indo-Pakistan border and these drugs seep into the border States and play great havoc on the social fabric of the society. With this in mind, if one reads the definition of the expressions psychotropic substances and preparation as defined under the NDPS Act, which read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lots. 17. In the considered opinion of this Court, the expression any mixture or in Sl. No. 239 of the Notification is not redundant, because, Sl. No. 239 is a residuary clause to deal with a situation where a particular substance contains 2 or more species of Narcotic drug/Psychotropic substance. The catch expression in Sl.No. 239 is of any of the above drugs . 18. Let us take an example where the police seize a substance weighing 150 gms. from an accused. On testing the substance, it was found to contain Alprazolam [Sl. No. 30 in the Schedule to the NDPS Act and Sl. No. 178 in the quantity notification dated 19.10.2001] and Barbital [Sl. No. 32 in the Schedule to the NDPS Act and Sl. No. 181 in the quantity notification dated 19.10.2001]. The small quantity and commercial quantity for Alprazolam is 5 gms. and 100 gms. respectively. Similarly, the small quantity and commercial quantity fixed by the notification dated 19.10.2001 for Barbital is 20 gms. and 500 gms. respectively. The question is, under which Sl. No. in the quantity notification, should the seized drug be fitted in, whether as Barbital or Alprazolam, for the purpose of framing charge against the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormed. In para 23 of M.A.Jinna's case, the learned Judge has stated that he finds support from the reasoning in the decision of the Apex Court in Mohd. Sahabuddin and another vs. State of Assam [(2012) 13 SCC 491], whereas, on a closer scrutiny of the said judgment, it is seen that it is opposed to the isolation theory propounded in M.A.Jinna's case, as could be seen from para nos. 10, 11 and 12 of Mohd. Sahabuddin's case which are as under: 10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and the each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Prosecutor appearing for the respondent further submitted that the issue regarding the tablet is commercial quantity or not has already been decided by this Court and cancelled bail in Crl.O.P. (MD)No.23400 of 2016 and the bail applications relating to the other accused were also dismissed by this Court. Admittedly, the offence is grave in nature. This drug is called Rape Drug and prohibited in all countries. Since the earlier bail granted to the petitioner on health ground has been cancelled by this Court, the only remedy open to the petitioner is he has to go before the Supreme Court whether the cancellation of the bail is correct or not. The second bail application is not maintainable. Therefore, the petitioner is not entitled to bail on medical grounds. 15. The learned Special Public Prosecutor appearing for the State submitted that all those medical facilities available in the Central Prison itself and therefore, the petitioner can very well avail all such medical facilities and get proper treatment. 16.In view of the above, since this Court has already decided the issue involved in this petition, the question of considering the very same issue once again does n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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