Delhi High Court
Karan Sharma vs Union Of India & Anr on 2 February, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 29.01.2018
Judgment delivered on: 02.02.2018
+ CRL.REV.P. 962/2017, Crl.M.A.No.21365/2017,
Crl.M.A.No.703/2018
KARAN SHARMA ..... Petitioner
Through Mr.Rakesh K. Sharma and Mr.Deepak
Chauhan, Advocates.
versus
UNION OF INDIA & ANR ..... Respondents
Through Mr.Anil Soni, CGSC with
Ms.Priyanka, Adv. for R-1/UOI.
Mr Pramod Bahuguna, Advocate for
R-2/Customs.
+ BAIL APPLN. 891/2017
KARAN SHARMA ..... Petitioner
Through: Mr.Rakesh K. Sharma and
Mr.Deepak Chauhan, Advocates.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr.Vinod Diwakar, CGSC with
Mr.Sanjay Pal, Adv. for R-1/UOI.
Mr.Sanjeev Narula, Sr.Standing
Counsel for Customs with Mr.
Abhishek Ghai, Adv.
CRL REV. P. 962/2017 & Bail Appn. 891/2017 Page 1 of 8
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1. This order shall dispose of both the aforenoted petitions.
2. Criminal revision petition (No. 962/2017) has assailed the order of
charge passed by the trial court dated 25.10.2017 wherein the court was of
the view that the petitioner is prima facie guilty of an offence under Section
21(C) of the NDPS Act, 1985 as also under Section 23(C) read with Section
28 of the said Act. The prima facie finding returned was that on 15.09.2016
at about 3.00 pm at the departure hall of the IGI airport the petitioner who
was intending to depart from Delhi to New York by Air India flight
No. A1-101; on search of his checked-in baggage it was found to contain
300 bottles of "Chlorpheniramine Maleate & Codeine Phosphate Cough
Linctus", "Phensedyl Cough Linctus 50 ml each" and equivalent to
18,388.50 gms; a preparation of a narcotic drug (codeine) and the petitioner
intending to export the said commercial quantity of the drug was found
prima facie guilty of the aforenoted offences.
3. Bail application (No. 891/2017) seeks a bail qua the petitioner. It is
stated that the petitioner is in custody since the date of his arrest i.e., since
14.09.2016. The charge sheet has been filed against him and the charges
under the aforenoted sections (noted supra) have been levelled against him
vide the order now impugned in the criminal revision petition No. 962/2017.
Submission being that the petitioner is at best guilty of having been found to
be in possession of an intermediate quantity of the aforenoted drug (codeine)
and as such he is entitled for consideration of grant of bail.
4. A status report has been filed by the State/the CBI in the bail
application. No separate status report / reply has been filed in the revision
petition. Learned counsel for the CBI submits that this report filed by him in
the bail application may be treated as his reply to the revision petition as
well.
5. Learned counsel for the parties have both relied upon the dicta laid
down by the Apex court in the judgment reported as 2012 (13) SCC 491,
Mohd. Sahabuddin & Anr vs State of Assam. Counsel for the petitioner
points out that this judgment was passed on similar facts; in this case also
there was a recovery of Phensedyl cough syrup bottles from the petitioner;
although bail had been refused to the petitioner for the reason that a truck
load of the offending bottles were recovered from the said petitioner; (34700
being the exact quantity) but the High Court of Assam had arrived at a
calculation based on the concentrated quantity of the narcotic drug which has
been reflected in para 6 of the judgment; this has been extracted by the Apex
court and has not been disturbed; meaning thereby that it is the concentrated
quantity of the drug which has to be taken into account for the purposes of
determination as to whether the alleged illegal possession was a small
quantity; intermediate quantity or a commercial quantity. Attention has been
drawn to the Notification (dated 16.07.1996) of the Ministry of Finance; the
Narcotic Drug Codeine appears in column 28; a small quantity is 10 gm and
more than 1 kg alone would quantify as a commercial quantity. In the
instant case what has allegedly been recovered from the petitioner is 300
bottles of Phensedyl cough Linctus which contains a concentrated quantity
of 30 gms of codeine and thus being lesser than the commercial quantity of 1
Kg it would fall within the ambit of an intermediate quantity; the bar and
embargo contained in Section 37 of the NDPS Act is not attracted. To
further explain this submission, learned counsel for the petitioner has placed
reliance upon a judgment delivered by a Special Judge passed in the case of
the NCB vs Md. Tabrez Ansari, Case No. SC 9563/2016; submission being
that in this case also where the accused was in possession of 150 bottles of
100 ml containing Phensedyl cough syrup; the court had prima facie noted
that it would amount to 10 mg of codeine phosphate of every 5 ml dosage; it
would be 30gm of codeine phosphate in total. The same calculation should
apply in the instance case; also keeping in view the judgment delivered by
the Apex court in Mohd. Sahabuddin (supra), a calculation based on the
concentrated content of the narcotic drug not having disturbed by the Apex
court, this is a clear case of a prima facie recovery only of an intermediate
quantity and at the cost of repetition a case for bail is made out qua the
petitioner.
6. Per contra the respondent has negated this submission.
7. Record shows that the petitioner at the departure hall of the IGI airport
was found to be in possession of the 300 bottles of Phensedyl cough Linctus.
His disclosure statement had been recorded. He admittedly had no license to
carry this drug/export it outside the country. He was also admittedly not a
stockist of the drug. He had no bill or invoice for the recovered bottles. He
was only a lay man. The only answer (in terms of his disclosure statement
recorded under Section 67 of the NDPS Act) was that he wanted to sell this
drug in the open market in the foreign country.
8. This court notes that wide an amendment by S.O 2941 (E) dated
18.11.2009 the following note has now been appended to the Notification
dated 16.07.1996. This note reads herein as under:-
"4. The quantities shown in column 5 and column 6 of the
Table relating to the respective drug shown in column 2
shall apply to the entire mixture or any solution or any
one or more narcotic drug or psychotropic substances of
that particular drug in dosage from or isomers, esters,
ethers and salts of these drugs, including salts of esters,
ethers and isomers, wherever existence of such substance
is possible and not just its pure drug content."
9. Thus it is the entire mixture of the particular drug and not just it is
pure drug content which has now to be taken into account to determine as to
whether the quantity recovered from the alleged offender falls into a small
quantity or a commercial quantity. Note 4 of this notification was not
considered in the judgment of Md. Sahabuddin (supra) by the Apex Court as
this contention was never raised. Moreover, the Apex court had only
reproduced the calculation arrived at by the High Court of Assam; it did not
have an occasion to discuss as to whether this calculation (relating to the
concentrated amount) was correct or incorrect. On the face of it in terms of
note 4 of the aforenoted notification, the entire mixture of the drug and not
its concentrated form i.e, its pure drug content which has to be taken into
account for the purposes of determination as to whether what had been
recovered from the petitioner was a small quantity or a commercial quantity.
10. This Court has been informed by the parties that even otherwise the
question whether the entire drug or only its concentrated content has to be
considered for determination as to whether the alleged recovery was a small
or a commercial quantity is an issue which has been referred to the Full
Bench of the Apex Court and this reference is yet to be answered.
11. The CBI had also sent the recovered drug to CRCL who had vide its
report dated 27.10.2016 opined that the entire weight of the liquid comes to
18.388 kg which is a commercial quantity. The petitioner admittedly had no
valid license under the Drug and Cosmetic Act, 1940. He did not have any
invoice or bill showing that he had purchased this drug for any legal purpose.
This is also not his case. It is also not his case that this transportation was
being effected for any therapeutic purpose. The embargo of Section 37 of the
NDPS Act which is couched in the negative language and which requires the
satisfaction of twin requirements not having been satisfied by the petitioner,
the petitioner cannot be considered for bail.
12. Section 37 of the NDPS had been considered by the Apex Court in the
judgment of NCB vs Kishan Lal, 1991 (1) SCC 705. The court had noted
that this Section starts with a non-obstante clause.
"6.....As already noted, Section 37 of the NDPS Act starts
with a non-obstante clause stating that notwithstanding
anything contained in the Code of Criminal Procedure,
1973 no person accused of an offence prescribed therein
shall be released on bail unless the conditions contained
therein are satisfied. Consequently, the power to grant
bail under any of the provisions of the CrPC should
necessarily be subject to the conditions mentioned in
Section 37 of the NDPS Act."
13. This position has been reaffirmed by the Apex Court time and again in
a catena of judgments. In this background, the revision petition is without
merit. It is dismissed.
14. Since the petitioner is prima facie guilty of illegal possession of a
commercial quantity of a prohibited drug, he is also not entitled to be
considered for bail at this stage.
15. Bail application is also dismissed.
INDERMEET KAUR, J
FEBRUARY 02, 2018
SU
