Ahmadalieva Nadira vs Customs
2000 Latest Caselaw 724 Del

JUDGMENT

R.S. Sodhi, J.

1. By this petition Criminal Misc. (Main) Petition No. 2006/2000, the petitioner has sought to invoke the Jurisdiction of this court under Section 439 read with Section 482 of the Code of Criminal Procedure for grant of bail in customs case under section 21/23/28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). He has impugned the order dated 16-5-2000 whereby the learned Additional Sessions Judge, New Delhi, on the application of bail made to her, has rejected the bail on the ground of an embargo of Section 37 of the Act which, according to her, is couched in the negative language and, therefore, declined bail. The case of the prosecution is that the petitioner, who purportedly came into the country to do business in garments, was detained by the Customs authorities on 4-4-2000 and from her effects was recovered 1,68,590 Diazepam (5 mg.) tablets. On the recovery of the same, she was detained for having committed offence under the Act possession whereof was an offence and, therefore, liable to be prosecuted for violation thereof.

2. I have heard learned counsel for the petitioner as also learned counsel for the respondent-Customs. It is the case of the petitioner that the items alleged to have recovered from the petitioner were undoubtedly Diazepam tablets but these Diazepam tablets are covered under the Drugs and Cosmetics Rules in Schedule-II and, therefore, are labelled as 'medicine' under Rule 97 which provides as follows :-

(b) If it contains a substance specified in Schedule H, be labelled with the Symbol Rx and conspicuously displayed on the left top corner of the label and be also labelled with the following words :'Scheduled H drug -Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only';

(c) If it contains a substance specified in Schedule H and, comes within the purview of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) be labelled with the symbol NRx which shall be in red and conspicuously displayed on the left top corner of the label, and be also labelled with the following words :

'Schedule H drug-Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only';

These tablets support the symbol 'Rx' on the left top corner of the label and, therefore, is not a drug which falls within the purview of the Act. He further submits Diazepam in tablets form and injection form are items export whereof is permissible under the open General Prescription drug available in the open market and has produced for my perusal Valium-5, Calmpose-5 and Diazepam tablets. Each one of them bears a mark 'RX' at the top left hand corner. He has also produced before me Contrail which supports a red mark of 'NRx'. From this learned counsel wants be to deduce that Diazepamipso factois to the drug which is covered by the Schedule as Item 43, Diazepam is shown at Serial No. 43 with a Chemical name as follows :

43- DIAZEPAM 7-Choloro-1 3 dihdro-1-Methyl-5-phenyl-2H-1, dihydro-1-methyl-5-phenyl-2H-1, dihydro-1-methyl-5-phenyl-2H-1, 4-benzodiazepin-2-one.

3. Unless, therefore, the prosecution can show that what has been recovered conforms to the Chemical name mentioned against Item No. 43 in the Schedule to the Act, the same cannot be deemed to be a psychotropic substance covered by the Act.

4. Learned counsel for the respondent-Customs has placed before me report of the Central Revenue Control Laboratory which had the occasion of testing the substance alleged to have been recovered from the petitioner and states that the substance is tested positive for Diazepam. This report, to my mind, does not improve the case of the Customs Department for merely saying that is tests positive for Diazepam is neither here nor there. Therefore, prima facie, I am of the view that the substance recovered from the petitioner does not fall within the Schedule to the Act and, therefore, no offence under the Act has been committed. Section 37 of the Act cannot be pressed into service.

5. Learned counsel for the respondent-Customs has drawn my attention to the judgment of the Punjab & Haryana High Court dated 21-3-1997 in Criminal Revision No. 470 of 1987 (State of Haryana v. Naresh Kumar) wherein the learned Judge has held the possession of Diazepam is an offence under the Act. There can hardly be any dispute to such a finding except to the extent as stated above that it must fit the description of Diazepam as envisaged in the Schedule. Another argument that has been made by the learned counsel for the Customs is that the petitioner is a foreigner and, therefore, should not be enlarged on bail. This argument must be heard and rejected. It would be a name if course are doing to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and Violative of the constitutional mandate and principles of human rights.

6. In view of the discussion above, I admit the petitioner to bail on her furnishing a personal bond in the sum of Rs. 1,00,000/- (Rupees one lac) with one surety in the like amount to the satisfaction of the trial court. The petitioner shall not leave jurisdiction of the trial court without prior permission from that court. A copy of this order be served upon the Embassy of Uzbekistan so that they may make not of that the petitioner has been admitted to bail on terms and conditions mentioned hereinabove.

The petition stands disposed of.