Madhya Pradesh High Court
Sanju @ Sandeep Tiwari vs The State Of Madhya Pradesh on 13 July, 2021
Author: Rajeev Kumar Dubey
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 27315/2021
( Sanju @ Sandeep Tiwari Vs. State of M.P.)
1
Jabalpur, Dated : 13 / 07/ 2021
Heard through video conferencing.
Shri Rajendra Pratap Singh, counsel for the applicant.
Shri Sunil Gupta, P.L. for the respondent / State.
Heard with the aid of case diary.
This is the fourth bail application filed by applicant under
Section 439 of the Cr.P.C.
Applicant Sanju @ Sandeep Tiwari was arrested on 22.08.2021
in connection with Crime No.227/2020 registered at Police Station
Java, Distt. Rewa (MP) for the offence punishable under Sections 8, 21,
22 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as the NDPS Act) and Section 5/13 of the
Madhya Pradesh Drugs Control Act.
Earlier bail applications of the applicants have been dismissed as
withdrawn vide order dated 07.04.2021, 19.11.2020 and 25.11.2020
passed in M.Cr.C. Nos. 5353/2021, 35765/2020
As per the prosecution case, on 22/8/2020, on the information of
the informant that the applicant Sanju @ Sandeep Tiwari who was
coming to Java from Nagma side was transporting cough syrup illegally
for selling, Shri B.P Verma, Assistant Sub-Inspector Police Station
Jawa, along with other members of the police force went to village
Shitalha and upon reaching there, he waited for the applicant. After a
while, applicant Sanju @ Sandeep Tiwari was seen coming on a red
colour motorcycle bearing registration no. MH04 M6610 hanging a bag
on the back. He apprehended him with the help of other members of the
police force. While searching his bag, he found 65 bottles of Welcyrex
cough syrup of 100 ml each manufactured by Plenteous company
containing 10 mg. (Codeine Phosphate) in each 5 ml dose that were
being transported illegally by him. On interrogation he informed the
police that he had purchased that cough-syrup from the co-accused
Pappu Gupta.
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 27315/2021
( Sanju @ Sandeep Tiwari Vs. State of M.P.)
Learned counsel for the applicant submits that the applicant has
not committed any offence and has falsely been implicated in the
offence. It is further submitted that co-accused Pappu Gupta has been
granted bail by this Court vide order dated 23.04.2021 passed in
M.Cr.C. No. 45065/2020. So on the basis of the parity applicant is also
entitled to get bail. The applicant has been in custody since 22.08.2021
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 and
submitted that the case of the present applicant is not similar to the case
of the co-accused Pappu Gupta who has been granted bail by this Court.
Police implicated the co-accused Pappu Gupta on the basis of
memorandum of applicant while police seized 65 bottles of Welcyrex
cough syrup of 100 ml each manufactured by Plenteous company
containing 10 mg. (Codeine Phosphate) in each 5 ml dose from the
possession of the applicant and the applicant was not having documents
to keep the same in his possession. So, applicant is not entitled to get
bail on the basis of parity. Thus, looking to the provisions of Section 37
of the NDPS Act, the applicant should not be released on bail.
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
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 27315/2021
( Sanju @ Sandeep Tiwari Vs. State of M.P.)
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 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).
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
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 27315/2021
( Sanju @ Sandeep Tiwari Vs. State of M.P.)
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 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 65 bottles of Welcyrex cough
syrup of 100 ml each manufactured by Plenteous company containing
10 mg. (Codeine Phosphate) in each 5 ml dose from the possession of
applicant, 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)
sarathe Judge
Digitally signed
by NAVEEN
KUMAR
SARATHE
Date:
2021.07.13
17:34:50 +05'30'
