Raj Kumar vs State Of Himachal Pradesh
2023 Latest Caselaw 886 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

                              Cr.M.P. (M) No. 1171 of 2022 with





                              Cr.MPs(M) No. 1226 & 1895 of 2022

                              Date of decision: 13th January, 2023





     1.    Cr.M.P. (M) No. 1171 of 2022

     Raj Kumar                                           ...Petitioner.





                                   Versus
     State of Himachal Pradesh.                          ...Respondent.

     2.    Cr.M.P. (M) No. 1226 of 2022

     Amit Bhardwaj @ Meethu                               ...Petitioner.

                                   Versus
     State of Himachal Pradesh.                          ...Respondent.


     3.    Cr.M.P.(M) No. 1895 of2022

     Ranjeet Singh @ Billa                              ...Petitioner.




                                   Versus
     State of Himachal Pradesh.                         ...Respondent.





     Coram

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting? Yes.

For the Petitioner(s). Mr. H.S. Rana, Advocate, in Cr.MP(M) No. 1895 of 2022.

Ms. Reeta Hingmang, Advocate, vice Ms. Rajvinder Sandhu, Advocate, in Cr.MP(M) No. 1226 of 2022

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...2...

Mr. Rakesh Chauhan, Advocate, in Cr.MP(M) No. 1171 of 2022.

.

For the Respondent: Mr. Hemant Vaid, Additional Advocate General, with Mr. Raju Ram Rahi and Ms. Seema Sharma, Deputy Advocates

General.

Vivek Singh Thakur, Judge

In all these petitions an identical plea, for enlarging the

petitioners on bail, has been made base and, therefore, for

involvement of common question of fact and law, to be appreciated

for adjudication of the petitions, these petitions are being decided by

this common order.

2. Petitioner-Raj Kumar in Cr.MP(M) No.1171 of 2022, has

been arrested in Case FIR No.125 of 2021, dated 26.04.2021,

registered under Section 22 of Narcotic Drugs and Psychotropic

Substance Act ( in short 'NDPS Act') and under Sections 192, 196

and 181 of the Motor Vehicles Act (in short 'MV Act'), in Police

Station Nalagarh, Police District Baddi, District Solan, H.P., for

having found in possession of total 7860 tablets of Lomotil, without

authorization/license or permission for keeping and transporting

these tablets, during search of his car, conducted on the basis of

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...3...

reliable information received from a faithful informer. As per State

FSL report, tablets recovered from the possession of the petitioner,

.

being transported in his car, were found having Diphenoxylate

Hydorochloride tablets, total weight whereof has been determined as

487.320 gms. Petitioner was arrested on 29.04.2021 and since then

he is in custody as an under-trial prisoner. Challan was presented in

the Court on 28.05.2021.

3. Amit Bhardwaj-petitioner in Cr.MP(M) No.1226 of 2022,

has been arrested on 10.10.2020, in case FIR No.316 of 2020,

dated 10.10.2020, registered under Section 21 of NDPS Act, in

Police Station Nalagarh, Police District Baddi, District Solan, H.P.,

for having found in possession of total 2840 Lomotil and white

tablets (2820+20), during raid and search of his residential room,

conducted on the basis of reliable information received from a

faithful informer. Every strip of tablets was having printed label of

Diphenoxylate Hydrochloride Atropine Sulphate Tablets, containing

2.5 mg Diphenoxylate Hydrochloride and 0.025 mg Atropine

Sulphate. As per State FSL report, recovered tablets, stated as

tablets of Lomotil, were Diphenoxylate Hydrochloride tablets and

total weight of 2820 tablets was determined 180.480 gms. Besides

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...4...

these tablets, white colored 20 tablets were also recovered. These

white tablets were also found to be Diphenoxylate Hydrochloride

.

tablets, having total weight of 1.280 gm. Challan in present case

was presented in the Court on 30.12.2020. Petitioner was arrested

on 11.10.2020 and since his arrest, after remaining in police

custody, he is in judicial custody.

4. Ranjeet Singh-petitioner in Cr.MP(M) No. 1895 of 2022

has been arrested on 30.08.2021, in case FIR No.210 of 2021,

dated 30.08.2021, registered under Section 22 of NDPS Act, in

Police Station Baddi, Police District Baddi, District Solan, H.P., for

having found in possession of 250 tablets of Clovidol (Tramadol

Hydrochloride tablets) and 2940 tablets of Lomotil Diphenoxylate

Hydrochloride and Atropine Sulphate from carry-bag hanging on the

handle of the motorcycle, during search of his motorcycle, conducted

on the basis of secret information received from a faithful informer,

As per chemical analysis report, received from State FSL, Clovidol-

100 SR (Tramadol Hydrochloride tablets) were found

Acetaminophen, Chlorpheniramine & Diclofance tablets, with total

weight of 112.0 gms and Lomotil tablets were found to be tablets of

Diphenoxylate Hydrochloride tablet, having total weight 188.160

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...5...

gms. Challan in present case was presented in the Court on

11.11.2021. Petitioner, after his arrest on 30.08.2021, remained in

.

police custody and thereafter he is in judicial custody.

5. It has been submitted that Lomotil itself is not notified

Narcotic drug or Psychotropic substance in the Schedule attached to

the NDPS Act or Rules framed thereunder. It contains

Diphenoxylate salt to the permissible limit of 0.25 mg and it does not

fall in the category of manufactured drug, as defined in Section 2(xi)

of the NDPS Act, as it has not been manufactured by the petitioners,

but, as a medicine, by the pharmacy, having license to manufacture

the same and, therefore, manufacturing of Lomotil, recovered from

the petitioners, is permissible under Section 2(xi) of the NDPS Act,

as it has not been manufactured otherwise than in a pharmacy on

prescription and the petitioners were bonafide carrying tablets of

medicine, which does not amount to be in possession or

transportation of prohibited Narcotic drug or psychotropic substance,

making out an offence under NDPS Act as what is contained in it,

has been described on the leaf of the tablet, which is in consonance

with permissible limit of diphenoxylate prescribed for preparation of

Lomotil medicine and, therefore, it has been contended that

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...6...

petitioners, for having been in possession of Lomotil, have not

committed any offence under NDPS Act, much less an offence of

.

keeping, carrying and transporting with possession narcotic drug or

psychotropic substance.

6. Learned counsel for petitioners to substantiate their

plea, have placed reliance upon pronouncements of Co-ordinate

Benches dated 22.05.2017, passed in Cr.MP(M) No. 464 of 2017,

titled Mukesh Kumar vs. State of Himachal Pradesh, dated

18.11.2019, passed in Cr.MP(M) No. 1977 of 2019, titled Harish

Kumar vs. State of Himachal Pradesh and dated 13.05.2022,

passed in Cr.MP(M) No.858 of 2022, titled Satbir @ Keshav vs.

State of Himachal Pradesh, wherein in Cr.MP(M) No. 464 of 2017,

accused person having found in possession of 2.442 kgs Corex

cough syrup was enlarged on bail, and in Cr.MP(M) No. 1977 of

2019 and Cr.MP(M) No. 858 of 2022 accused persons therein, who

were found in possession of Lomotil tablets were enlarged on bail by

Co-ordinate Benches on the basis of plea raised by accused

persons that tablet Lomotil, having Diphenoxylate Hydrochloride 2.5

mg dose with 0.025 mg of atropine sulphate, does not fall under the

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...7...

definition of manufactured narcotic drug and as such does not come

under the purview of NDPS Act.

.

7. Reliance has also been placed on behalf of petitioners

on pronouncement of the Supreme Court in Union of India &

another vs. Sanjeev V. Deshpande, 2014 (13) SCC 1. Referring

para 34 of this judgment, it has been contended that there is no

prohibition for having in possession of Lomotil tablet, which is not a

manufactured drug, but is a medicine prepared by the licensed

pharmacy entitled to manufacture the same.

8. Learned Additional Advocate General submits that

judgments/orders cited by the learned counsel for petitioners have

been passed prior to verdict of the Supreme Court in Hira Singh &

another vs. Union of India & another, reported in (2020) 20 SCC

272, and after pronouncement in Hira Singh's case the findings

returned in the pronouncements, referred on behalf of petitioners,

have become irrelevant. Further that even if it is considered that

preparation of diphenoxylate, calculated as base and quantity of

Atropine Sulphate equivalent to at least 1% of the dose of

diphenoxylate, is not covered under the definition of narcotic drug in

terms of Entry at Sr. No. 58 of the Notification referred in Harish

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...8...

Kumar's case (Cr.MP(M) No. 1977 of 2019) in quoted portion of

Surjit Kumar's case (Cr.MP(M) No. 792 of 2017), then also for the

.

provisions of Section 22 of NDPS Act providing punishment for

contravention of provisions of Act and Rules made thereunder in

relation to psychotropic substances being a preparation/mixture of

psychotropic substance(s) with another psychotropic substance or

neutral substance, petitioners are not entitled for bail because,

Lomotil is a drug, which contains prohibited psychotropic substances

and, therefore, for having possession thereof or to transport the

same, license/permit/prescription, shall be necessary, and as the

petitioners have failed to produce any licence, permission,

authorized prescription, entitling them to possess or to transport the

recovered Lomotil, for commercial quantity thereof, in view of

pronouncement of Hon'ble Supreme Court in Hira Singh's case,

petitioners are not entitled for bail for recovery of huge commercial

quantity of Lomotil, containing psychotropic substance.

9. Learned Additional Advocate General has submitted

that even if it is considered that Lomotil is not manufactured Narcotic

Drug then also, it shall be of no help to the petitioners because

Lomotil has been included in list of Narcotic Drugs under

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...9...

International Control prepared by the International Narcotic Control

Board in accordance with the Single Convention on Narcotic Drugs

.

1961 in consonance with Protocol of 25 March, 1972 amending the

Single convention of Narcotic Drugs 1961 wherein with its trade

name Lomotil, in addition the names listed in Schedule I and II of

1961 Convention or Groups of the 1931 Convention with reference

of Diphenoxylate, has been enlisted in Part 3 of document,

containing the current list of narcotic drugs under International

Control and additional information, to assist governments in filling in

the International Narcotic Control Board questionnaires related to

narcotic drugs.

10. It has been further submitted by learned Additional

Advocate General that like Sr. No. 58 of Notification referred in

Surjeet Kumar's case, there is Part-2 in above referred List of

Narcotic Drugs under International Control prepared by the

International Narcotic Control Board providing list of the Preparations

of Narcotic drugs exempted from some provision and included in

Schedule III of the 1961 Convention, wherein Preparations of

Diphenoxylate containing, per dosage unit,, not more than 2.5 mg of

diphenoxylate calculated as base and a quantity of atropine sulphate

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...10...

equivalent to at least 1% of the dose of diphenoxylate, has been

included at Serial No. 6. He has contended that despite that Lomotil

.

has been included in Part 3 of the aforesaid List in addition to

narcotic drugs enlisted in Part-1 of List and, therefore, irrespective of

inclusion and exemption, as per Serial No. 58, referred in Surjeet

Kumar's case, Lomotil is a prohibited and controlled narcotic drug,

possession whereof without licence/permit/authorization is an

offence under NDPS Act.

11. In Hira Singh's case, the Hon'ble Supreme Court has

observed as under:

"7.3. On considering the aforesaid reasoning given by this Court in the case of E.Micheal Raj (Supra), we are of the opinion that while holding that in the mixture of a narcotic drug or

psychotropic substance with one or more neutral substance, the quantity of neutral substance is not to be taken into consideration and it is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute "small quantity or

commercial quantity", this Court has not at all considered the relevant entry in the Notification dated 19.10.2001. As observed herein above, what was seized was heroin which

falls in Entry 56. What was seized was not opium and / or opium derivative. There is no specific finding even given by this Court that it would fall under Entry 239 namely any mixture or preparation that of with or without the neutral

material. Therefore, the case of mixture of narcotic drugs or psychotropic substance was not at all in direct consideration of this Court.

...... ... ... ... ... ... ... ...

10. On merits whether any mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s) the quantity of neutral substance(s) is not to be taken into consideration or it is only the actual content by weight of the offending drug which is relevant for the purpose

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...11...

of determining whether it would constitute "small quantity or commercial quantity", the Statement of Objects and Reasons of NDPS Act is required to be considered. As per the preamble

.

of NDPS Act, 1985, it is an Act to consolidate and amend the law relating to Narcotic Drugs, to make stringent provisions

for the control and regulation of operation relating to Narcotic Drugs and Psychotropic Substances. To provide for forfeiture of the property derived from or use in illicit traffic in Narcotic Drugs and Psychotropic Substance. The Statement of objects

and reasons and the preamble of the NDPS Act imply that the Act is required to act as a deterrent and the provisions must be stringent enough to ensure that the same Act as deterrents.

10.1. In the case of Directorate of Enforcement vs. Deepak Mahajan and Another reported in (1994) 3 SCC 440, it is observed by this Court that every law is designed to further ends of justice

but not to frustrate on the mere technicalities. It is further observed that though the intention of the Court is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. It

is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute. In the said

decision this Court has also quoted following passage in Maxwell on Interpretation of Statutes, 10th Edition page 229: "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably

not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. ... Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a

case of necessity, or the absolute intractability of the language used."

Thereafter, it is further observed that to winch up the legislative intent, it is permissible for courts to take into account the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation

of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane. It is further observed that in given circumstances, it is permissible for courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...12...

the legislative exercise and its scope and object may not become futile.

.

10.2. Therefore, considering the statement of objects and reasons and the preamble of the NDPS Act and the relevant provisions

of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it

would constitute small quantity or commercial quantity. Right from sub-clause (viia) and (xxiiia) of Section 2 of NDPS Act emphasis is on Narcotic and Drug or Psychotropic Substance (Sections 21, 22, 23, 24, 27 and 43). Even in the table attached to the Notification dated 19.10.2001, column no. 2 is with respect to name of Narcotic Drug and Psychotropic Substance

and column nos. 5 and 6 are with respect to "small quantity and commercial quantity". Note 2 of the Notification dated 19.10.2001 specifically provides that quantity shown against the respective drugs listed in the table also apply to the preparations of the drug and the preparations of substances of note 1. As per Note 1, the small quantity and commercial

quantity given against the respective drugs listed in the table apply to isomers ..., whenever existence of such substance is

possible. Therefore, for the determination of "small quantity or the commercial quantity" with respect to Narcotic Drugs and Psychotropic Substance mentioned in column no.2 the quantity mentioned in the clauses 5 and 6 are required to be taken into consideration. However, in the case of mixture of the narcotic drugs / psychotropic drugs mentioned in column

no.2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in table, lesser of the small quantity between the quantities given against the respective Narcotic Drugs or Psychotropic Substances

forming part of mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is

to be taken into consideration. As per example, mixture of 100 gm is seized and the mixture is consisting of two different Narcotic Drugs and Psychotropic Substance with neutral material, one drug is heroin and another is methadone, lesser of commercial quantity between the quantities given against

the aforesaid two respective Narcotic Drugs and Psychotropic Substance is required to be considered. For the purpose of determination of the "small quantity or commercial quantity", in case of entry 239 the entire weight of the mixture / drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in the case of E. Micheal Raj (Supra) is accepted, in that case, it would be adding something to the relevant provisions of the statute

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...13...

which is not there and/or it was never intended by the legislature.

.

10.3. At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always

adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough

powder to amend reversal doses of drugs. Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealer will add other drugs or non -intoxicating substances to the drug so that they can sell more of it at a lesser expense to

themselves. Brown-sugar / smack is usually made available in power form. The substances is only about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous. These are only few examples to show and demonstrate that even mixture of narcotic drugs or

psychotropic substance is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral

substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few

punishment for "commercial quantity". Certainly that would not have been the intention of the legislature.

10.4. 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.

... ... ... ... ... ... ... ...

12. In view of the above and for the reasons stated above, Reference is answered as under:

12.1. 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

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...14...

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.

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.

12.3. 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.

12.4. 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."

12. Section 8(c) of the Act prohibits possession and

transportation etc. of any narcotic drug or psychotropic substances

with exception, which reads as under:

"8. Prohibition of certain operations.-

                    (a) ... ...       ...       ...       ...      ...
                    (b) ... ...       ...       ...       ...      ...

(c) Produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter- State, import into India, export from India or transship any narcotic drug or psychotropic substance, Except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence,

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...15...

permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization:"

.

13. Where Section 21 of the Act provides punishment for

contravention in relation to Narcotic Drugs, Section 22 of the Act

provides punishment for contravention in relation to psychotropic

substances, which reads as under:

"22. Punishment for contravention in relation to

psychotropic substances.--

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells,

purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall

be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten

thousand rupees or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity,

with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]"

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...16...

14. Rule 65A of the Narcotic Drugs and Psychotropic

Substances Rules, 1985, prohibits sale, purchase, consumption or

.

use of any psychotropic substances, except in accordance with the

Drugs and Cosmetics Rules 1945.

15. Rule 66 of the Narcotic Drugs and Psychotropic

Substances Rules, 1985, prohibits possession of any psychotropic

substances for any purpose covered under 1945 rules, unless he is

lawfully authorized to possess such substances for any of the said

purposes under these Rules. Similarly, Rule 67 of the Narcotic

Drugs and Psychotropic Substances Rules, 1985, prohibits transport

of psychotropic substances, except as prescribed under Rules.

16. Section 2(xx) defines "preparation", which reads as

under:

"2(xx) "preparation", in relation to a narcotic drug or psychotropic substance, means any one or more such

drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances."

17. Section 2(xxiii)) defines "psychotropic substance", which

reads as under:

"2(xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...17...

material included in the list of psychotropic substances specified in the Schedule."

.

18. Section 2(xxiiia) defines 'small quantity' and Section

2(viia) defines 'commercial quantity', in relation to narcotic drugs and

psychotropic substances, which read as under:

preparation", which reads as under:

"2(xxiiia) "small quantity", in relation to narcotic

drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazettee.

2(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any

quantity greater than the quantity specified by the Central Government by notification in the Official Gazettee."

19. Notifications issued by the government in official

gazettee, i.e. Notification No. S.O.1055(E), dated 19.10.2001, read

with Notification No. S.O. 2942(E), dated 18.11.2009, notify, as per

Entry No. 44, that Diphenoxylate is a psychotropic substance and as

per Entry No. 239, any mixture or preparation that of, with or without

natural material of above substance or drug is also narcotic

drug/psychotropic substance. Note 4 inserted by S.O. 2942(E),

dated 18.11.2009, also provides that entire mixture or any solution of

any one or more narcotic drugs or psychotropic substances of that

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...18...

particular drug in dosage form or isomers, esters, ethers and salts of

these drugs, including salts of esters, ethers and isomers, wherever

.

existence of such substance is possible is to be construed narcotic

drug or psychotropic substance for the purpose of determining its

quantity as small or commercial.

20. In Cr.MP(M) No. 464 of 2017 Co-Ordinate Bench of this

Court, vide order dated 22.05.2017, enlarged the accused on bail by

taking into consideration percentage of codine in cough syrup Corex,

but not the entire mixture. The said order was passed prior to

pronouncement of Hira Singh's case by the Hon'ble Supreme Court

(supra).

21. Similarly, order dated 18.11.2019, passed in Cr.MP(M)

No. 1977 of 2019, order dated 17.07.2017, passed in Cr.MP(M) No.

792 of 2017 and order dated 12.01.2018, passed in Cr.MP(M) No.

1592 of 2017, were passed prior to verdict of Hon'ble Supreme

Court in Hira Singh's case, referred supra.

22. In Haresh Kumar's and Surjit Kumar's cases, bail was

granted mainly on the ground that preparation of Diphenoxylate,

calculated as base and quantity of Atropine Sulphate equivalent to at

least 1% dose of Diphenoxylate, was not included in the preparation

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...19...

declared as narcotic drugs, but Co-ordinate Benches have not

considered that preparation of above referred narcotic drug was

.

exempted from some provisions dealing with manufactured drugs,

but not from complying other provisions of law, provided under the

relevant Act and Rules made thereunder, which provide to have

license, permission to possess and transport etc. any narcotic drug

or psychotropic substance or any preparation of mixture thereof,

including Lomotil which is mixture of Diphenoxylate.

r However,

without going into this controversy, even otherwise, Lomotil definitely

is a mixture of psychotropic substance covered under the definition

of 'preparation' of psychotropic substance and in view of verdict of

the Hon'ble Supreme Court in Hira Singh's case, the entire mass is

to be considered as psychotropic substance by taking into

consideration Notifications dated 19.10.2001 and 18.11.2009.

23. It is true that Lomotil or Diphenoxylate is not enlisted in

the Psychotropic Substances in Schedule attached to the Act,

however, Diphenoxylate is a psychotropic substance, as notified in

Notifications dated 19.10.2001 and 18.11.2009 at Serial No. 44

thereof, as in view of conclusion, especially in para No. 12.3 of Hira

Singh's case, any provision of the NDPS Act is not standalone

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...20...

provision, but must be construed alongwith other provisions of the

statutes, including provisions in NDPS Act and Notifications dated

.

19.10.2001 and 18.11.2009.

24. Order in Cr.MP(M) No. 858 of 2022, dated 13.05.2002,

has been passed by a Co-Ordinate Bench of this Court and in the

said order bail has been granted to the accused by relying upon

Harish Kumar's case referred supra and determining the quantity of

the recovered contraband not on the basis of entire mass, but only

on the basis of percentage of Diphenoxylate Hydrochloride salt.

These orders, in my considered view, are in conflict with

pronouncement of the Supreme Court in Hira singh's case. This

Court, in view of Article 141 of the Constitution, is bound by the

verdict of the Supreme Court and, therefore, orders/judgments

passed either before verdict or in contravention thereof are to be

ignored and pronouncement of the Supreme Court is to be relied for

deciding present petitions.

25. In view of above discussion, I do not find merit in the

condition of the petitions and accordingly, the petitions are

dismissed.

Cr.MPs(M) No.1171, 1226 & 1895 of 2022 ...21...

26. Any observation made hereinabove shall have no

bearing on the merits of the case and are confined strictly for

.

disposal of this petition.

Petitions stand disposed of in aforesaid terms.

                                             (Vivek Singh Thakur)
       th
    13 January, 2023                                   Judge





            (virender)