Durgesh Tiwari vs The State Of Madhya Pradesh
2021 Latest Caselaw 3942 MP

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           THE HIGH COURT OF MADHYA PRADESH
                       M.Cr.C. No.17475/2021
       (KRISHNAKANT TIWARI VS. THE STATE OF M.P.)
                         ........................

M.Cr.C. No.25636/2021 (DURGESH TIWARI VS. THE STATE OF M.P.) ........................

M.Cr.C. No.19089/2021 (ADITYA KUMAR SHUKLA VS. THE STATE OF M.P.)

Jabalpur, Dated : 04 / 08 / 2021 Heard through video conferencing.

Shri Narendra Kumar Mishra, learned counsel for the applicants in M.Cr.C.No.17475/2021 and M.Cr.C. No. 25636/2021.

Shri Arun Kumar Dwivedi, learned counsel for the applicant in M.Cr.C.No.19089/2021.

Shri Pradeep Gupta, learned G.A. for the respondent/State. Case dairy perused.

This order shall govern the disposal of M.Cr.C.No.17475/2021, M.Cr.C.No. 25636/2021 & M.Cr.C. 19089/2021.

M.Cr.C.No.17475/2021, M.Cr.C.No. 25636/2021 & M.Cr.C. 19089/2021 are first bail applications under Section 439 of the Cr.P.C. of applicants Kirhsnakant Tiawri, Durgesh Tiwari and Aditya Kumar Shukla respectively, Applicants were arrested on 10.02.2021 in connection with Crime No.36/2021 registered at Police Station-Sohagi, District Rewa (MP) for the offence punishable under Sections 8, 21, 22 of the NDPS Act and Section 5/13 of the Drugs Control Act.

2. As per the prosecution case, on 10.02.2021, on the information of the informant that the four persons were transporting illegal cough syrup in a car bearing registration No.UP-70ER-0620 and was coming from Prayagraj (U.P.) to Rewa side, Sheshmani Verma, Assistant Sub- Inspector Police Station Sohagi, District Rewa along with police force went to National Highway No.30 near Sohagi hill and waited for that vehicle. Sometime later he saw that car coming from Prayagraj side. On that he stopped that vehicle, which was being driven by Aditya Kumar

Shukla (applicant in M.Cr.C.No.19089/2021) and Krishnakant Tiwari (applicant in M.Cr.C.No.17475/2021), Durgesh Tiwari (applicant in M.Cr.C.No.25636/2021) and co-acused Shashikant Pandey were also travelling in that vehicle. On search of said vehicle, he found 510 bottles of Wings Onerex cough syrup of 100 ml each containing 10 mg. (Codeine Phosphate) in each 5 ml dose, which were being transported illegally by them in that car. On that he seized said cough syrup and arrested the applicants from the spot.

3. Learned counsels for the applicants submitted that the applicants are innocent and have falsely been implicated in the crime. Learned counsels further submitted that it is alleged that police seized 510 bottles of Wings Onerex Cough Syrup containing Narcotic Drug (Codeine Phosphate) from the possession of the applicants. Cough Syrup is a medicine which is used for medicinal purposes and easily available in medical shops across the country. Seized cough syrup has been prepared by the Company and if the applicants were in possession of that drugs, it can maximum be held to be violative of the provisions of Drugs & Cosmetics Act, 1940. So, merely on the basis that police seized Cough Syrup from the possession of the applicants the provisions of NDPS Act are not attracted in the case. He further submitted that if the quantity of Codeine Phosphate present in the seized cough syrup are calculated separately, it would fall within the small quantity. In addition, learned counsel for the applicant - Aditya Kumar Shukla (applicant in M.Cr.C.No.19089/2021) submitted that applicant was the driver of the vehicle and he did not know that other co-accused persons were carrying cough syrup with them and Police did not seized cough syrup from the possession of applicant. Learned counsels further submitted that the applicants have been in custody since 10/02/2021. The charge-sheet has been filed and conclusion of trial will take time, hence it is prayed that the applicants be released on bail.

4. Learned counsel for the respondent/State opposed the prayer and submitted that 510 bottles of Wings Onerex Cough syrup (100 ml. each) containing codeine phosphate were seized

from the joint possession of the applicants and co-accused Shashikant Pandey and they were not having documents to keep the same in their possession, so looking to the provisions of Section 37 of the NDPS Act, they should not be released on bail.

5. Hon'ble Apex Court in the case of Mohd. Sahabuddin Vs. State of Assam, (2012) 13 SCC 491 observed as under :-

"12. 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 NDPS 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."

6. Hon'ble Apex Court in the case of State of Punjab Vs. Rakesh Kumar, 2018 SCC OnLine SC 2651 after relying earlier judgment of Hon'ble Apex Court passed in the case of Union of India Vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or

scientific purposes. 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). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances)."

7. In light of the above judgements of the Apex Court, henceforth, if anyone is found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.

8. According to the Central Government notification dated 18.11.2009 the total Mixture recovered from the applicant will have to be taken into account without calculating the percentage of a narcotic drug and psychotropic substance separately to calculate the small and commercial quantity limit. Therefore, by application of the aforesaid notification, the percentage of a narcotic drug and psychotropic substance shall be inseparable and the whole contraband seized has to be taken into consideration that whether the same falls within the small quantity or commercial quantity or an intermediate quantity. The said notification was further upheld by Apex Court in the case of Harjit Singh vs. State of Punjab, (2011) 4 SCC 441 wherein it is held that under the notification the whole quantity of material recovered in form of the mixture has to be considered for the purpose of imposition of punishment.

9. The Apex Court in the case of Heera Singh Vs. Union of India, 2020 SCC Online SC 382 held that 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.

10. It is alleged that the police seized 510 bottles (100 ml. each) of Onerex Cough syrup containing Codeine Phosphate (manufactured drugs) from the joint possession of applicants & Shashikant Pandey, so looking to the provisions of Section 37 of the N.D.P.S. Act, this Court is not inclined to grant bail to the applicants.

11. Accordingly, M.Cr.C. is rejected.

12. A copy of this order be placed in the record of M.Cr.C.Nos.25636/2021 & M.Cr.C. 19089/2021.

                                                           (Rajeev Kumar Dubey)
sarathe                                                          Judge




      Digitally signed
      by NAVEEN
      KUMAR
      SARATHE
      Date:
      2021.08.04
      17:30:57 +05'30'