Jaspreet Singh vs Ut Of J&K
2021 Latest Caselaw 796 j&K

                                                                           Sr. No. 301



      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU
                                 Bail App No. 139/2021
                                 CrlM No. 865/2021
                                 CrlM No. 1172/2021

Jaspreet Singh                                              .....Appellant/Petitioner(s)


                                 Through :- Mr. Sunil Sethi, Sr. Advocate with
                                            Mr. Himanshu Sharma, Advocate
                           v/s

UT of J&K                                                            .....Respondent(s)

                                 Through :- Mr. Vishal Sharma, ASGI
Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                           JUDGMENT

1. The present application has been filed by the petitioner seeking

bail in a complaint filed by the respondent bearing Crime No. 1/2020 under

sections 8, 21, 29 and 60 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short the Act) pending before the Court of Ist Additional

Sessions Judge, Jammu (hereinafter to be referred as the trial court).

2. It is stated that the petitioner had earlier filed an application before

the trial court for grant of bail, however, the learned trial court without

appreciating the facts and circumstances of the case, dismissed the said

application vide order dated 20.05.2021. It is further stated that as per the FSL

report, the weight of codeine phosphate in each bottle is between 0.17% to

0.20%, so the petitioner cannot be prosecuted under NDPS Act. In the bail

application, the main reliance has been placed on the decision of the Delhi

High Court in Iqbal Singh vs. State.

3. Response stands filed by the respondent, in which besides

narrating factual aspect of the case, the respondent has pleaded that as the

matter is being dealt under the provisions of NDPS Act, 1985, so the embargo

contained under section 37 of NDPS Act is clearly applicable in the instant

case as the commercial quantity of the codeine phosphate is 1000 ml. whereas,

4445 bottles of seized contraband is almost four times more than the

commercial quantity, so the petitioner is not entitled to bail.

4. The brief facts necessary for the disposal of the instant bail

application are that a secret information was received by the Intelligence

Officer, Sh. Prakash Ram from a reliable sources on 19.01.2020 at 0730 hours

that a person, namely, Jaspreet Singh S/o Gurdeep Singh R/o Singhpura

Mohalla Lamini Road, District Pathankot, is carrying a huge quantity of

Narcotics drugs i.e. Codeine Phosphate Cough Syrup in a truck bearing

registration No. PB06Q-9373 and shall reach at TCP Nagrota, Jammu on

19.01.2020 in between 1100-1200 hours, for its further delivery in Kashmir

Valley. The said information was reduced into writing and placed before the

Superintendent, NCB Jammu, who issued an order for constitution of NCB

team to carry out operation. Accordingly, Shri Satish Kumar Intelligence

Officer after completing all the preparations and formalities along with his

team reached TCP Nagrota at 1050 hours. At about 1130 hours, the NCB team

noticed that one truck bearing No. PB06Q-9373 was coming towards TCP

Nagrota Jammu and thereafter, the said truck was immediately signaled to stop

by Shri Satish Kumar and when the Truck driver stopped the vehicle, the

Intelligence Officer introduced himself, NCB Team and independent witness.

The driver of the vehicle disclosed his name as Jaspreet Singh and the other

person disclosed his name as Seemant Sharma. Thereafter, the NCB team

searched the truck mentioned above that was loaded with long steel poles and

also found 32 numbers of brown coloured cartons concealed along with the

steel poles. On being asked about 32 numbers of brown coloured cartons,

Jaspreet Singh replied that the above recovered 32 numbers brown coloured

cartons contain narcotics drugs. Total 4445 bottles containing codeine

phosphate was recovered from 32 numbers of brown coloured cartons. These

bottles included, Onerex 2000 bottles, Brodimax 906 bottles, Qrex 295 bottles,

Rolirex 48 bottles, Phenerx 891 bottles, Codinex 97 bottles and Maxcoff-T 208

bottles. The petitioner was arrested on 19.01.2020 and later on other accused,

namely, Surinder Singh was also arrested. After completing the necessary

formalities, a complaint was filed by the respondent on 15.07.2020 before the

learned Principal Sessions, Jammu and the same was transferred to the Court of

Ist Additional Sessions Judge, Jammu. The said complaint is pending disposal

before the Court of learned trial court for arguments on charge/discharge.

5. Mr. Sunil Sethi, learned senior counsel appearing for the petitioner

has vehemently argued that the present case does not fall with the ambit of

NDPS Act and rather the proceedings against the petitioner should have been

launched under the Drugs and Cosmetic Act, 1940 taking in to consideration

the pure drug content. As such, the petitioner is entitled to be enlarged on bail.

6. On the other hand, Mr. Vishal Sharma, learned ASGI submits that

the allegations against the petitioner are serious in nature and the rigors of

section 37 are clearly applicable in the instant case, as such, the petitioner does

not deserve to be enlarged on bail. Mr. Vishal Sharma relied upon the

judgment of the Apex court in the case of Md Sahabuddin and another vs.

State of Assam, 2012 (13) SCC 491.

7. Heard learned counsel for the parties and perused the record.

8. The question that requires for consideration by this Court is as to

whether the accused can be tried for offence under the NDPS Act in case he is

found to be in possession of the manufactured drugs without any valid

authorization. The Hon'ble Apex Court in State of Punjab and Haryana vs.

Rakesh Kumar, 2019 2 SCC 466 has already considered the said issue, in

which the accused were apprehended with manufactured drugs and were

convicted by the trial court. However, the High Court of Punjab and Haryana

in an appeal preferred against the conviction, observed that manufactured

drugs, whether it contains narcotic drug or Psychotropic substances, if

manufactured by a manufacturer, must be tried, if violation is there, under the

Drugs and Cosmetic Act and not under the NDPS Act. The Hon'ble Supreme

Court considered the said issue and observed as under:

"13. The counsels for the accused-respondents have strongly supported the judgment of the High Court wherein it was held that, since the present matters deal with "manufactured drugs" the present respondents should be tried for the violation of provisions of Drugs and Cosmetics Act, 1940.

14. However, we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that section 80 of the NDPS Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of NDPS Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the NDPS Act are not in derogation of the Drugs and Cosmetics Act, 1940. This Court in the case of Union of India vs. Sanjeev V. Deshpande (supra) has held that:

35....essentially the Drugs & Cosmetics Act. 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act."

(emphasis supplied)

15.The aforesaid decision further clarifies that the NDPS Act, should not be read in exclusion to Drugs and Cosmetics Act, 1940. Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the accused- respondents amounted to a prima-facie violation of Section 8 of the NDPS Act, they were charged under section 22 of the NDPS Act.

16.In light of above observations, we find that decision rendered by the High Court holding that the accused-respondents must be tried under the drugs and Cosmetics Act, 1940 instead of the NDPS Act, as they were found in possession of the "manufactured drugs" does not hold good in law. Further, in the present case, the accused-respondents had approached the High Court seeking suspension of sentence. However, in granting the aforesaid relief, the High Court erroneously made observations on the merits of the case while the appeals were still pending before it."

9. So, the contention of the petitioner that the petitioner is liable to

tried under the Drugs and Cosmetic Act, 940 and not under the NDPS Act, is

misconceived and a such is rejected. It is prerogative of the State/U.T to launch

the proceedings either under the Drugs and Cosmetic Act or under the NDPS

Act and the accused cannot have any choice with regards to criminal

proceeding he is willing to face. Further also, in Md Sahabuddin and another

vs. State of Assam, 2012 (13) SCC 491, the Hon'ble Supreme Court while

upholding the rejection of bail has held as under:

12. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml. bottle if related to the permissible dosage, namely, 5 ml. would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other

condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means „contributing to cure of disease‟. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent.

13. As pointed out by us earlier, since the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule „H‟ drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml. content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the N.D.P.S. Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants‟ failure to establish the specific conditions required to be satisfied under the above referred to notifications, the application of the exemption provided under the said notifications in order to consider the appellants‟ application for bail by the Courts below does not arise.

10. In Union of India vs. Sanjeev V. Deshpande, (2014) 13 SCC 1,

the Supreme Court has held as under:

"25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under section 8(c). only when such dealing is for medical purpose or scientific purposes. Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or orders made there under. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under section 8©, of dealing in narcotic drugs and psychotropic substances.

26.The Act does not contemplate framing of rules for prohibiting the various activities of dealing in narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c) It only

contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substance..."

11. So far as instant case is concerned, admittedly there is no

permission/licence in favour of the petitioner so as to justify his possession

with regard to the contraband allegedly recovered from him. In terms of the

Notification, New Delhi, the 18th November, 2009, SI 2941 (E) in exercise of

the powers conferred by clause (VII) and (XXIII) of section 2 of the Narcotic

Drug and Psychotropic Substances Act 1985 (6 of 1985), the Central

Government made the following amendment in the Notification S.O. 1055 (E)

dated 19.10.2001 named in the table at the end after Note-3, the following note

has been inserted namely:-

"The quantity shown in the column No. 5 and column No. 6 of the table relating to the respective drug in column 2 shall apply to the entire mixture or any substance or any one or more Narcotic drugs or psychotropic Substances of that particular drug in dosage form or isomers, esters ethers and salts of these drugs, including the salts, esters, ethers and isomers, where-ever instances of such substance is possible and not just its pure drug content."

Thus, in view of the above noted notification, whole of the

mixture is to be considered and not the contents of pure drug.

12. The Hon‟ble Supreme Court in Hira Singh and ors vs. Union of

India, AIR, 2020 SC 3255 has considered and held that whole of the quantity

of mixture having narcotic drugs or psychotropic substance and not the actual

content, is to be taken into consideration, the relevant paragraph is reproduced

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."

13. In view of what has been discussed above, the case of the

petitioner is squarely hit by the section 37 of the NDPs Act. The case is still at

the initial stage and prosecution has yet to lead its evidence. Therefore, the

present petition is found to be misconceived and the same is, as such,

dismissed along with the connected CrlMs.

(Rajnesh Oswal) Judge Jammu 03.08.2021 Karam Chand/Secy.

                    Whether the order is speaking:        Yes
                    Whether the order is reportable:      Yes