Vikash Singh @ Betu vs The State Of Madhya Pradesh
2021 Latest Caselaw 3100 MP

                                                                   1                           MCRC-20071-2021
                                        The High Court Of Madhya Pradesh
                                                  MCRC-20071-2021
                                               (VIKASH SINGH @ BETU Vs THE STATE OF MADHYA PRADESH)


                                 Jabalpur, Dated : 08-07-2021
                                       Heard through Video Conferencing.

                                       Shri Raman Patel, learned counsel for the applicant.
                                       Shri Pradeep Gupta, learned GA for the respondent/State.

Heard with the aid of case diary.

This is second application filed under section 439 Cr.P.C. Applicant

Vikash Singh @ Betu was arrested on 01.07.2020 in connection with Crime No.312/2020 registered at Police Station Civil Line, Distt. Rewa (MP) for the offence punishable under Sections 8, 21 and 22 of Narcotics Drugs and Psychotropic Substances Act, 1985 and Section 5/13 of the M.P. Drug Control Act, 1949.

Earlier bail application of the applicant was dismissed as withdrawn vide order dated 09.12.2020 passed in M.Cr.C. No.24750/2020.

As per prosecution case, on 30.06.2020, on the information of informant that bottles of cough syrup were kept by some persons for illegal

sale in a swift car bearing registration No.MP-17-CA-3287 parked near Mayank Hotel, transport nagar Padra, R.K. Verma, Sub-Inspector, P.S. Civil Line, Rewa along with police force went to the spot, where they found that one Swift car bearing registration No.MP-17-CA-3287 was parked there, in which three persons co-accused Manish Saket, Santosh Kushwaha and Subhash Kushwaha were sitting and one pulsar bearing Chasses No.DHXRLM95073 and Engine No.MX2A11CXOLRM47776 was also parked there on which applicant Vikash Singh @ Betu and co-accused Santosh Shukla were sitting. On seeing police, co-accused Santosh Shukla fled away from the spot. Police arrested applicant Vikash Singh @ Betu and co-accused Manish Saket, Santosh Kushwaha and Subhash Kushwaha and seized one 12 bore country made pistol, one live cartridge, Rs.10,000/- cash Signature Not Verified SAN and 240 bottles of Onerex Cough Syrup containing codeine phosphate from Digitally signed by MANOJ NAIR Date: 2021.07.08 16:46:25 IST 2 MCRC-20071-2021 the possession of applicant, which were kept by the applicant on that bike and also seized 1150 bottles of Onerex Cough Syrup containing codeine phosphate from the possession of applicant Vikash Singh @ Betu and co- accused Manish Saket, Santosh Kushwaha and Subhash Kushwaha which were illegally kept by them in that car.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in this case. The applicant has been in custody since 01.07.2020 and the conclusion of trial will take time, hence prayed for release of the applicant on bail.

Learned counsel for the respondent/State opposed the prayer. 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."

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

Signature Not Verified SAN Court passed in the case of Union of India Vs. Sanjeev V. Deshpande, (2014)

Digitally signed by MANOJ NAIR Date: 2021.07.08 16:46:25 IST 3 MCRC-20071-2021 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).

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.

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.

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 Signature Not Verified SAN

Digitally signed by MANOJ NAIR Date: 2021.07.08 16:46:25 IST 4 MCRC-20071-2021 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.

It is alleged that the police seized one 12 bore country made pistol, one live cartridge, Rs.10,000/- cash and 1390 bottles of Onerex Cough syrup containing Narcotic substance (manufactured drugs) from the possession of the applicant Vikash Singh @ Betu and co-accused Manish Saket, Santosh Kushwaha and Subhash Kushwaha and they have no documents regarding possession of these bottles of cough syrup, 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 applicant.

Accordingly, M.Cr.C. is rejected.

(RAJEEV KUMAR DUBEY) JUDGE

mn

Signature Not Verified SAN

Digitally signed by MANOJ NAIR Date: 2021.07.08 16:46:25 IST