Gujarat High Court
Rajeshbhai Gokarbhai Dabhi vs State Of Gujarat on 9 February, 2024
NEUTRAL CITATION
R/CR.MA/1767/2024 ORDER DATED: 09/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 1767 of 2024
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RAJESHBHAI GOKARBHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL RACHH, ADVOCATE WITH
MR FENIL H BATHIYA(13663) for the Applicant(s) No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 09/02/2024
ORAL ORDER
1. RULE. Learned APP waives service of rule for the
respondent-State.
2. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, for regular bail in connection
with FIR being C.R.NO.11185003230715 of 2023 registered
with Kalyanpur Police Station, Devbhoomi Dwarka.
3. Learned advocate appearing on behalf of the applicant has
submitted that the in present case, the investigation is over and
charge-sheet is filed. Prior to present application, the applicant
had preferred another application before filing of the charge-
sheet which came to be withdrawn by the present applicant.
Thereafter, the investigation is over and charge-sheet is filed.
3.1 Learned advocate appearing on behalf of the applicant has
submitted that the present applicant is running a Panshop at
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R/CR.MA/1767/2024 ORDER DATED: 09/02/2024
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Village:Canedy, Tal:Kalyanpur, Dist:Devbhoomi Dwarka. As per
the case of prosecution 200 bottles of cough syrup containing
codeine had been seized from the shop belonging to the present
applicant. Admittedly, the present applicant was not holding any
license for storing the said cough syrup. At best, the applicant
can be said have committed an offence punishable under the
provisions of Drugs and Cosmetic Act. The preset applicant
cannot be said to have committed offence punishable under the
provisions of N.D.P.S. Act.
3.2 Learned advocate appearing on behalf of the applicant has
submitted that the content of codeine in the cough syrup seized
from the shop of the present applicant was very negligible and
considering the same, the amount of substance would not lead
to a commercial quantity, and therefore, the rigors of Section 37
of the N.D.P.S. Act would not be applicable to the facts of
present case.
3.3 Learned advocate appearing on behalf of the applicant has
submitted that the judgment of Apex Court in the case of Hira
Singh & Anr. Vs. Union of India & Anr. reported in (2020)
20 SCC 272 would not be applicable to the facts of present case.
He has submitted that the other co-accused has been considered
for grant of regular bail by this Court, and therefore, the
applicant is also entitled to be enlarged on the bail on the
ground of parity. He, therefore, submitted to allow the present
application and enlarge the present applicant on bail subject to
suitable conditions.
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R/CR.MA/1767/2024 ORDER DATED: 09/02/2024
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4. Learned APP has opposed the present application, inter
alia, contending that the present applicant was found in
conscious possession of 208 bottles of cough syrup of 100 ml
each, which contained codeine, which is a Narcotic Drug. The
applicant did not possess any valid license for storage of the said
drug. The applicant had procured the said bottles from the other
co-accused, who has been ordered to be enlarged on bail by this
Court, as he was possessing valid license for dealing in the said
substance. The present applicant had procured the said
substance without any valid prescription and was found to be
storing the same without any valid license.
4.1 Learned APP has submitted that the applicant was selling
the said cough syrup to the local villagers for the purpose of
intoxication.
4.2 Learned APP has submitted that in view of the judgment of
Apex Court in case of Hira Singh (supra), the quantity of neutral
substance used for production of a drug is also required to be
taken into consideration while determining the quantity of
Narcotic Drug or a Psychotropic Substance. Considering the
same, the applicant was possessing the commercial quantity of
Narcotic Drug, which amounts to a commercial quantity, and
therefore, the rigors of Section 37 of the Act would very much be
applicable to the facts of the present case. He, therefore,
submitted to dismiss the present application.
5. Heard learned advocates for the parties and perused the
record. It is an admitted position of the fact that the present
applicant was running a Pan shop in the Village and he was
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found to be storing 208 bottles of cough syrup containing
codeine without any valid license.
6. From the submissions made by learned advocates for both
the sides, what falls for consideration of this Court is the aspect
as to whether the present applicant can be said to be possessing
a commercial quantity of a Narcotic Drug or a Psychotropic
Substance. The prosecution seeks to rely upon the judgment of
Apex Court in case of Hira Singh (supra). In Paragraph No.12.2
of the said judgment, the Apex Court has observed as under:-
"12.2. In case of seizure of mixture of Narcotic Drugs or
Psychotropic Substances with one or more neutral
substance(s), the quantity of neutral substance(s) is not to 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."
7. In the case before the Apex Court, what was seized was
heroin which is itself was a Narco Drug. The Apex Court in its
judgment in case of E.Micheal Raj Vs. Narcotics Control
Bureau reported in (2008) 5 SCC 161, has held that in the
mixture of a narcotic drug or psychotropic substance with one
or more neutral substance/s, the quantity of the neutral
substance/s is not to be taken into consideration while
determining the small quantity or commercial quantity of a
narcotic drug or psychotropic substance and only the actual
content by weight of the offending narcotic drug which is
relevant for the purposes of determining whether it would
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constitute small quantity or commercial quantity.
8. The Apex Court in another judgment in case of Hira Singh
(supra), disagreed that the findings recorded by the Apex Court
in case of E.Micheal Raj (supra) and referred the matter to the
larger bench. The Larger Bench in its judgment in case of Hira
Singh (supra) had held that the law laid down in case of
E.Micheal Raj (supra) not to be a good law and had observed in
Paragraph No.12.2 as referred to herein above.
9. It is required to be noted that the substance, which was
seized in the cases before the Apex Court, was heroin which in
itself was a Narcotics Drug and the same has been referred to by
the Central Government in its notification specifying small
quantity and commercial quantity at Item No.56. Therefore, in
the opinion of the Apex Court, the aspect of content of an
offending substance in preparation of heroin was not required to
be gone into and the quantity of neutral substances used for
preparation of the final product i.e. Narcotics Drug or
Psychotropic Substance was not required to be excluded from
the quantity of a Narcotics Drug or a Psychotropic Substance,
which was a final product.
10. In present case, the substance, which has been seized is
admittedly neither a Narcotics Drug nor a Psychotropic
Substance. It is merely a cough syrup, which contains some
proportion of codeine, which is a Narcotics Drug or a
Psychotropic Substance. The cough syrup, which has been
seized from the conscious possession of the present applicant
has not been determined as a Narcotics Drug or Psychotropic
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Substance. Therefore, in the opinion of this Court, the judgment
of the Apex Court in case of Hira Singh (supra) will have no
applicability to the facts of the present case. Had the substance,
which was seized from the applicant been determined as a
Narcotics Drug or Psychotropic Substance, the case would have
been squarely covered by the judgment of the Apex Court in case
of Hira Singh (supra).
11. The content of codeine in the cough syrup which has been
seized from the conscious possession of the applicant is 10 mg in
5 ml. The bottles seized from the shop of present applicant are of
100 ml each. The small quantity of codeine is 10 grams and
commercial quantity is of 1 kg as per the notification.
Considering the same, the applicant cannot be said to be in
conscious possession of a contraband substance of more than
commercial quantity as specified in the notification, and
therefore, rigors of Section 37 of the Act would not be applicable
to the facts of present case. The act on the part of the present
applicant in possessing the bottles of cough syrup without any
valid license or having procured the same without any valid
prescription would be governed by the provisions of Drugs and
Cosmetics Act, which provides for punishment for the same in
Section 27 of the Act. Considering the aforesaid aspects, the
present application is allowed.
12. This Court has also taken into consideration the law laid
down by the Hon'ble Apex Court in the case of Sanjay Chandra
v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
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13. In the facts and circumstances of the case and considering
the nature of the allegations made against the applicant in the
FIR, without discussing the evidence in detail, prima facie, this
Court is of the opinion that this is a fit case to exercise the
discretion and enlarge the applicant on regular bail.
14. Hence, the present application is allowed. The applicant is
ordered to be released on regular bail in connection with FIR
being C.R.NO.11185003230715 of 2023 registered with
Kalyanpur Police Station, Devbhoomi Dwarka, on executing a
personal bond of Rs.10,000/- (Rupees Ten Thousand only) with
one surety of the like amount to the satisfaction of the trial
Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injurious to the interest of
the prosecution & shall not obstruct or hamper
the police investigation and shall not to play
mischief with the evidence collected or yet to be
collected by the police;
(c) surrender passport, if any, to the Trial Court
within a week;
(d) not leave the State of Gujarat without prior
permission of the Trial Court concerned;
(e) mark presence before the concerned Police
Station once in a month for a period of six
months between 11.00 a.m. and 2.00 p.m.;
(f) furnish the present address of his residence to
the Investigating Officer and also to the Court at
the time of execution of the bond and shall not
change the residence without prior permission
of Trial Court;
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15. The authorities will release the applicant only if he is not
required in connection with any other offence for the time being.
If breach of any of the above conditions is committed, the
Sessions Judge concerned will be free to issue warrant or take
appropriate action in the matter.
16. Bail bond to be executed before the lower Court having
jurisdiction to try the case. It will be open for the concerned
Court to delete, modify and/or relax any of the above conditions,
in accordance with law.
17. At the trial, the trial Court shall not be influenced by the
observations of preliminary nature qua the evidence at this stage
made by this Court while enlarging the applicant on bail.
18. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(M. R. MENGDEY,J)
GIRISH
