Surendr Singh vs Unknown
2021 Latest Caselaw 4232 HP

   IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 31st DAY OF AUGUST 2021




                                                           .

                             BEFORE
            HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





          CRIMINAL MISC. PETITION (MAIN) No. 1514 of 2021





    Between:-

    SURENDR SINGH
    S/O SH. MOHAN SINGH
    R/O VILLAGE BAROTIWALA,

    POST OFFICE SHIVPUR,

    TEHSIL PAONTA SAHIB,
    DISTRICT SIRMOUR, H.P.
    AGED 29 YEARS
    PRESENTLY LODGED IN MODEL CENTRAL JAIL,



    NAHAN, DISTT. SIRMOUR, H.P.
                                   .....PETITIONER




    (BY SH. RAKESH CHAUHAN, ADVOCATE)





    AND

    STATE OF HIMACHAL PRADESH            .....RESPONDENT





    (BY SMT. RITTA GOSWAMI,
    ADDITIONAL ADVOCATE GENERAL,
    WITH SMT. SEEMA SHARMA,
    DEPUTY ADVOCATE GENERAL
    AND SH. SHRIYEK SHARDA,
    SENIOR ASSISTANT ADVOCATE GENERAL
    ASI HEM PARKASH,
    POLICE STATION, NAHAN,
    DISTT. SIRMOUR IN PERSON)

_______________________________________________________




                                          ::: Downloaded on - 31/01/2022 22:58:57 :::CIS
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               This petition coming on for orders this day, the




                                                               .

    Court passed the following:

                           ORDER

The petitioner seeks regular bail in FIR No. 6/2021,

dated 12.1.2021, registered under Sections 21 and 29 of

Narcotics Drugs and Psychotropic Substances Act (in short

'NDPS Act') at Police Station, Nahan, District Sirmour, H.P.

2. As per prosecution case, a police party was on

patrol duty on 11.1.2021 near 'Katasan', District Sirmour. At

10:05 P.M., it received a secret information about a white

coloured Swift car bearing No. HP-17C-2466 coming towards

Nahan from Panta Sahib side. The vehicle was stated to have

two occupants. It was further informed that the search of this

vehicle, which was about to cross 'Katasan' could result in

recovery of a large quantity of bottles containing prohibited

narcotic substance. The information was reliable, therefore, the

procedure contemplated Section 42 of the NDPS Act was

complied with. Two persons who were coming out from Katasan

Devi Temple were requested and associated as independent

witnesses. At around 10:30 P.M., the vehicle in question came

from Paonta Sahib side. It was signalled to stop. The vehicle

had two occupants. On questioning, the driver of the vehicle

.

disclosed his name as Surender Singh (petitioner). The other

person occupying the adjacent seat gave his name as Mandeep

Singh. After complying with the prescribed procedure, search of

the vehicle was carried out. From a bag kept along side

marked 'Bolirex' r to Mandeep Singh's feet, 15 plastic bottles each having 100 ml

syrup were recovered. All the recovered

bottles had Codeine Phosphate, a manufactured drug

prohibited under the NDPS Act. The occupants of the vehicle

could not produce any licence/permit for carrying these bottles.

The patrol party also deemed it fit to carry out personal search

of the occupants of the vehicle. As per their request, the

personal search was carried out in presence of Additional

Superintendent of Police. Nothing incriminating was recovered

during personal search. Seizure of 15 bottles of Codeine

Phosphate led to registration of the FIR in question.

3. As per status report, during investigation, the

petitioner statedly disclosed that he and Mandeep Singh had

purchased 16/17 bottles from Amit Medical Store, Sailakui

Sahaspur (Uttrakhand). A bottle each was consumed by the

petitioner and his accomplice Mandeep Singh. Remaining 15

bottles were being carried by them to one Shibu @ Savi. To the

.

similar effect was the disclosure statedly made by Mandeep

Singh. As per the status report, the investigating agency went to

Sailakui Sahaspur, however, Amit Medical Store could not be

located there. The shop identified by the petitioner was carrying

the board of Bhuvneshwari Medical Store. No bottle of Bolirex

syrup was found in that medical store.

As per the report of State Forensic Science

Laboratory, Junga, Codeine Phosphate was present in seized

Bolirex cough syrup. The total weight of the seized syrup was

1.849 kg.

4. Learned counsel for the petitioner submitted that the

petitioner is not guilty of the offence alleged against him. He has

been falsely implicated in the FIR. Learned counsel further

submitted that neutral quantity is not to be included while

determining the 'small' or 'commercial' quantity of the

manufactured drug. He placed reliance upon a judgment

passed by learned Single Judge of Delhi Court in bail

application No. 645/2020, titled Iqbal Singh versus State,

decided on 31.07.2020 to contend that a drug which is

manufactured but falls outside the scope of the definition of a

'manufactured drug' under the NDPS Act on account of the

.

component of offending material being below the prescribed

threshold, cannot be construed as manufactured drug by

dissecting its ingredients and considering them in isolation.

Opposing the bail plea, learned Senior Assistant

Advocate General, submitted that the quantity of neutral

substance cannot be excluded for the purpose of determining

the small or commercial quantity of Narcotic Substance. In this

regard, he placed reliance upon a judgment passed by the

Hon'ble Apex Court in AIR 2020 Supreme Court 3255, titled

Hira Singh and another vs. Union of India and another. The

quantity recovered from the possession of the petitioner and

his accomplice was commercial in terms of provisions of the

NDPS Act, therefore, rigors of Section 37 of NDPS Act would be

attracted. The petitioner has not been able to satisfy the twin

conditions laid down in Section 37 of the NDPS Act, therefore,

he is not entitled for grant of bail.

5. Hon'ble Apex Court in Hira Singh and another v.

Union of India, reported in AIR 2020 Supreme Court 3255,

held as under:

"10. In view of the above and for the reasons stated above,

.

Reference is answered as under:

(I). The decision of this Court in the case of E. Micheal Raj

(Supra) taking the view that in the mixture of narcotic drugs 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 purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II). 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;

(III). Section 21 of the NDPS Act is not stand-alone provision

and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification

No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;

(IV). Challenge to Notification dated 18.11.2009 adding "Note 4"

to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."

In respect of the manufactured drug, it was

specifically held in paragraph-8.4 of the above judgment as

under:-

"8.4. Even considering the definition of "manufacture", "manufactured drug" and the "preparation" conjointly, the total

.

weight of such "manufactured drug" or "preparation", including

the neutral material is required to be considered while determining small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the objects

and purpose of NDPS Act would be achieved. Any other intention to defeat the object and purpose of enactment of NDPS Act viz. to Act is deterrent."

From reading of paragraphs 10 and 8.4, it is clear

that Apex Court has held that total weight of manufactured drug

or preparation including the neutral material is required to be

considered while determining small or commercial quantity. No

distinction is made out for manufactured drugs with a small

percentage of narcotic substance. The judgment passed by

learned Single Judge of the Delhi High Court in Iqbal Singh's

case supra was considered in Bail Application No. 1136 of

2021, titled Mohd. Ahsan vs. Customs, decided on 25.6.2021.

Paragraph 21 of the judgment in Mohd. Ahsan's case supra,

expresses that the judgment rendered in Iqbal Singh's case

was contrary to the plain reading of the judgment of the Hon'ble

Apex Court, in Hira Singh's case. The matter has been referred

for consideration by a Larger Bench on following three aspects:

"22. The following questions therefore are required to be

considered by a larger Bench of this Court :

.

a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in

between?

b) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should

be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?

c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii)

dated 19th October 2001, as amended on 18.11.2009, should

be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?"

In light of the pronouncement of Hon'ble Apex Court

in Hira Singh's case supra, more particularly, in paragraphs-8.4

and 10 thereof, at present it cannot be said that the neutral

quantity is to be excluded while determining the small or

commercial quantity of the manufactured drug.

As per status report, from the joint possession of the

petitioner and that of his accomplice, 15 bottles of Codeine

Phosphate weighing 1.849 kg. were recovered. The weight falls

under the commercial quantity notified under the NDPS Act.

Therefore, rigors of Section 37 of NDPS Act get attracted. The

petitioner has not been able to satisfy the twin conditions of

Section 37 of the NDPS Act. Accordingly, this petition fails and

.

is dismissed reserving liberty to the petitioner to file the petition

afresh in accordance with law at an appropriate stage.

It is clarified that observations made above are

confined only to the adjudication of petition and shall have no

decide the matter r withoutto effect on the merits of the matter.

                                       being
                                               Learned trial Court shall

                                                 influenced        by     above

    observations.

Petition stands disposed of in the aforesaid terms.

Jyotsna Rewal Dua Judge

31st August, 2021 (vs)