TMI Blog2021 (5) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the quantity, the gross weight of the drug recovered and not the pure content of the psychotropic substance shall be taken into consideration. By making the percentage content of the drug irrelevant, the impugned notification has the effect of bringing pharmaceutical preparations that are exempt from the NDPS Act, under the fold of the law. So the argument of learned counsel of the applicant that the seized cough syrup is a Essential Narcotic Drugs and Section 8 of NDPS Act only prohibits the possession, sale, purchase, transport and use of any narcotic drug or psychotropic substance and not of the Essential Narcotic Drugs and the provisions of the section 8 read with 17 to 22 of N.D.P.S. Act are not attracted in the instant case has no force. According to Notifications Dated 14.11.1985, every drug containing codeine would come under manufactured drugs if it is kept against the provisions of the NDPS Act or Rules. Even those drugs which are compounded with one or more other ingredients containing not more than 100 milligrams of the codeine per dosage unit and with a concentration not more than 2.5 percent in undivided preparations will also come under the purview of manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the prosecution case, on 22/8/2020, on the information of the informant that the co-accused Sanju @ Sandeep Tiwari who was coming to Java from Nagma side was transporting cough syrup illegally for selling, Shri B.P Verma, Assistant Sub-Inspector Police Station Jawa, along with other members of the police force went to village Shitalha and upon reaching there, he waited for the applicant. After a while, co-accused Sanju @ Sandeep Tiwari was seen coming on a red colour motorcycle bearing registration no. MH04 M6610 hanging a bag on the back. He apprehended him with the help of other members of the police force. While searching his bag, he found 65 bottles of Welcyrex cough syrup of 100 ml each manufactured by Plenteous company containing 10 mg. (Codeine Phosphate) in each 5 ml dose that were being transported illegally by him. On interrogation he informed the police that he had purchased that cough-syrup from the applicant so police also arrested the applicant Pappu Gupta. 3. Learned counsel for the applicant submitted that 65 bottles of Welcyrex Cough Syrup containing Narcotic Drug (Codeine Phosphate) allegedly been seized from the possession of the co-accused Sanju @ Sandeep T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgement of the Coordinate Bench of this Court passed in Criminal Revision no.1621/2015 ( Rohit Chaddha Vs. State of M.P. ) vide order dated 15/10/2015. He further submitted that the applicant has no criminal past and he has been in custody since 23/08/2020. Conclusion of trial will take time, hence prayed for release of the applicant on bail. 8. Learned counsel for the State opposed the prayer and submitted that syrup containing narcotic drug was within the permissible limit even then Section 8 of the Act of 1985 provides that no person can possess narcotic drug or psychotropic substance except for medical or scientific purpose or in the manner and to the extent provided by the provisions of the Act or Rules or order made thereunder. Nothing is shown before this Court to prove the fact that the seized contraband was possessed or transported for any therapeutic purposes. No documents whatsoever are produced by the applicant and co-accused Sanju @ Sandeep Tiwari. So, it is apparent that the co-accused Sanju @ Sandeep Tiwari took 65 bottles of cough syrup 100 ml each, total 6500 ml cough syrup containing Codeine (a narcotic drug) for illegal sale and the applicant was also involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the small or commercial quantity of the Narcotic Drugs or Psychotropic Substances. 12. Section 2 of The Act 1985 essentially provides for three kinds of offending substances viz; Manufactured Drug , Narcotic Drug and Psychotropic Substance . 13. Manufactured Drug is defined under Section 2(xi) and reads as under : (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug; 14. Narcotic Drug is defined under Section 2(xiv) of the Act, which reads as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion made in the notification indicates that if a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would not be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S. Act. If it is kept for therapeutic practice. 20. Further, Section 8 of the NDPS Act, articulates that no person shall produce, possess, sell, purchase, transport and consume any narcotic drug or psychotropic substance, except for medical or scientific purposes. For the purpose of the medical and scientific use the Act/rules, imposes requirements, standards, terms and conditions by way of license, permit, or authorization. 21. Sections 17, 18, 21 and 22 of the NDPS Act prescribed the punishment for the violation of provisions of Section 8 of the Act. Section 17 prescribes the punishment inter alia for possession of prepared opium ; Section 18 prescribes the punishment inter alia for possession of opium , Section 21 deals with the punishment inter alia for possession of manufactured drugs and Section 22 prescribes the punishment inter alia for possession of Psychotropic substance. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y:- Table Sl. No. Name of the essential narcotic drug Quantity (1) (2) (3) 1. Morphine and its salts and all preparations containing more than 0.2 per cent. of Morphine 500 Milligrammes 2. Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in therapeutic practice 2000 Milligrammes 3. Dihydroxy Codeinone (commonly known as Oxy-codone and Dihydroxycodeinone), its salts (such as Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson to possess essential narcotic drug as may be specified in that order. (7) A recognised medical institution may possess essential narcotic drug in such quantity and in such manner as specified in these rules. (8) A manufacturer may possess essential narcotic drug in such quantity as may be specified in the licence issued under rule 36, rule 36A, or rule 37 of these rules or the licence issued for manufacturing the preparations of essential narcotic drugs under the rules made by the State Government under section 10 of the Act: Provided that there shall be no limit to the possession of essential narcotic drug by the Government Opium Factories.] (9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules. 25. From the bare perusal of above mentioned provisions of the NDPS Act, Notifications Dated 14.11.1985 and 5th May 2015 and the provisions of rule 53A, it is clear that a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one or more other ingredients containing not more than 100 milligrams of the codeine per dosage unit and with a concentration not more than 2.5 percent in undivided preparations will also come under the purview of manufactured drugs unless it is kept for therapeutic practice. 29. The Hon'ble Supreme Court in the case of Mohd. Sahabuddin Vs. State of Assam, reported in (2012) 13 SCC 491 considered an identical controversy involving recovery of cough syrup containing codeine phosphate in a bail matter observed :- 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances). 31. 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 the framing of Rules for permitting and regulating any activity of dealing in narcotic drugs or psychotropic substances. Hon ble Apex Court in the case of State of Punjab Vs Rakesh Kumar (2019) SCC 466 also reiterates the same view. 32. The facts of the case Binod Kumar @ Binod Kumar Bhagat Vs. State of Bihar, (2018) 14 SCC 199 (supra) Corex cough syrup was seized by the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is concerned police allegedly seized 65 bottles of Welcyrex cough syrup of 100ml each From the possession of co-accused Sandeep Tiwari. At the time of the incident the applicant was not traveling with him. Although in the memorandum of co-accused it is mentioned that applicant was also involved in the crime, but said memorandum of co-accused recorded by the police is not admissible in evidence against applicant without other incriminating evidence. Police also collected call details of the mobile allegedly belongs to the applicant but only on that basis also it can not be said that applicant was involved in the crime. Nothing has been recovered from the possession of the applicant. 36. So, looking to the facts and circumstances of the case and the strength of the evidence collected by the Police against the present applicant during investigation of the crime, prima facie it cannot be said that there is a reasonable ground to hold that the applicants have committed any offence punishable under the N.D.P.S. Act and also there is no material to infer that if he is released on bail then he will indulge in the crime punishable under the N.D.P.S. Act. The applicant is in custody s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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