Sourabh Mishra vs The State Of Madhya Pradesh
2021 Latest Caselaw 3661 MP

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                                        THE HIGH COURT OF MADHYA PRADESH
                                                        M.Cr.C. No.9542/2021
                                           (SOURABH MISHRA VS. THE STATE OF M.P.)
                                                          ........................

M.Cr.C. No.16725/2021 (ASHOK SHUKLA VS. THE STATE OF M.P.) ........................

M.Cr.C. No.21992/2021 (MANISH KUMAR TIWARI VS. THE STATE OF M.P.)

Jabalpur, dated 28/07/2021 Shri Manoj Mishra, learned counsel for the applicant in M.Cr.C.No.9542/2021.

Shri Prakash Upadhyay, learned counsel for the applicant in M.Cr.C.No.16725/2021.

Shri D.S. Dubey, learned counsel for the applicant in M.Cr.C.No.21992/2021.

Shri Manoj Kumar Singh, learned P.L. for the respondent/State.

Case dairy perused.

This order shall govern the disposal of M.Cr.C.Nos.9542/2021, 16725/2021 & 21992/2021.

M.Cr.C.No.9542/2021 & M.Cr.C.No.16725/2021 are the third bail applications under Section 439 of the Cr.P.C. of applicants Sourabh Mishra and Ashok Shukla respectively and M.Cr.C. No.21992/2021 is the fourth bail application under Section 439 of the Cr.P.C. of applicant Manish Kumar Tiwari. Applicants were arrested on 15/07/2020 in connection with Crime No.171/2020 registered at Police Station Sohagi, District Rewa (MP) for the offence punishable under Sections 8, 21, 22

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of the NDPS Act and Section 5/13 of the Drugs Control Act.

2. The first bail application filed by applicants Sourabh Mishra & Ashok Shukla was dismissed as withdrawn by the coordinate Bench of this Court vide order dated 23/09/2020 passed in M.Cr.C.No.25619/2020 and second application was dismissed on merit vide order dated 20/11/2020 passed in M.Cr.C.No.40618/2020 and the first bail application filed by applicant Manish Kumar Tiwari was dismissed on the point of maintainability by the coordinate Bench of this Court vide order dated 24/08/2020 passed in M.Cr.C.No.28211/2020, second application was dismissed as withdrawn vide order dated 23/09/2020 passed in M.Cr.C.No.25619/2020 and third application was dismissed on merit vide order dated 20/11/2020 passed in M.Cr.C.No.40618/2020.

3. As per the prosecution case, on 15/07/2020, on the information of the informant that the three persons were transporting illegal cough syrup in a car bearing registration No.DD-01-A-0339 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 Toll Plaza 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 Ashok Shukla (applicant in M.Cr.C.No.16725/2021) and Manish Kumar Tiwari (applicant in M.Cr.C.No.21992/2021) and Sourabh Mishra (applicant in M.Cr.C.No.9542/2021) were also travelling in that vehicle. On search of said vehicle, he found 360 bottles of Wings Onerex cough syrup of 100 ml each containing 10 mg. (Codeine Signature Not Verified SAN

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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.

4. 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 360 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 this regard Shri Prakash Upadhyay, advocate placed reliance on a judgment passed by Delhi High Court in Bail Application No.1136/2021 (Mohd. Ahsan Vs. Customs) decided on 25/06/2021. In addition, Shri Manoj Mishra, advocate further submitted that investigation officer did not comply with the provisions of the Section 50(1) of the NDPS Act. He did not give information to each of the accused individually and prepared a joint communication memo. In this regard he also placed reliance on a judgment passed by Hon'ble Apex Court in the case of State of Rajasthan Vs. Parmanand & Another, (2014) 5 SCC 345. Learned Signature Not Verified SAN

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counsels further submitted that the applicants have been in custody since 15/07/2020. The charge-sheet has been filed and conclusion of trial will take time, hence it is prayed that the applicants be released on bail.

5. Learned counsel for the State opposed the prayer and submitted that syrup containing narcotic drug was within the permissible limit even then Section 8 of the Act of 1985 provides that no person can possess narcotic drug or psychotropic substance except for medical or scientific purpose or in the manner and to the extent provided by the provisions of the Act or Rules or order made thereunder. Nothing is shown before this Court to prove the fact that the seized contraband was possessed or transported for any therapeutic purposes. No documents whatsoever are produced by the applicants. So, it is apparent that the applicants were transporting 360 bottles of cough syrup 100 ml each, containing Codeine (a narcotic drug) for illegal sale. The earlier bail applications filed by the applicants were dismissed on merit and thereafter, there is no change in circumstance. So looking to the provisions of Section 37 of the NDPS Act, applicants should not be released on bail. In this regard, learned counsel placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Mohd. Sahabuddin & Anr. Vs. State of Assam reported in (2012) 13 SCC 491.

6. This Court has gone through the case diary and arguments put forth by the learned counsels of the parties. The Judgments relied upon by the learned counsels of the applicants do not help the applicants, because in the case of State of Rajasthan Vs. Parmanand (supra) one of the appellant did not sign the Signature Not Verified SAN

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information memo. While in this case from the information memo prepared by the investigation officer it appears that the information memo was signed by all the applicants. Even Five Judges Bench of the Apex Court in the case of Vijaysingh Chandubha Jadeja Vs. State of Gujrat, ((2011) 1 SCC 609 held that "the question whether or not the procedure prescribed has been followed and the requirement of section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf." Similarly, in the case of Mohd. Ahsan Vs. Customs (supra) learned Single Bench of Delhi High Court do not lay down any guideline regarding bail in the cases in which Police seized cough syrup from the possession of accused. On the contrary it appears from that judgment that earlier a Single Bench of Delhi High Court in Bail Application No.6452/2020 (Iqbal Singh Vs. State) decided on 31/07/2020 granted bail in a case where corex cough syrup was seized from the possession of accused of that case distinguishing the judgment of Hon'ble Apex Court passed in the case of Heera Singh Vs. Union of India, 2020 SCC Online SC 382, so learned judge by observing that "Be that as it may, para 8.4 and para 10(II) of the judgment of the Supreme Court in Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382 does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of narcotic drugs or psychotropic substance out of a neutral substance. The judgment of Iqbal Singh (supra) is therefore contrary to a plain reading of the judgment of the Supreme Court. Since cases of this nature are common there is a strong possibility that different Single Judge Benches of this Signature Not Verified SAN

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Court may take different opinions while deciding as to whether the rigour of Section 37 would be attracted or not in such cases. It would therefore be in the interest of justice that an authoritative and final pronouncement is made by a larger Bench of this Court", referred the matter to the larger Bench. So, both the judgments do not help the applicants.

7. On the other hand this Court in the case of Pappu Gupta Vs. State of M.P. decided on 23/04/2021 in M.Cr.C.No.45065/2020 where police seized 65 bottles of Welcyrex cough syrup of 100 ml each containing 10 mg. (Codeine Phosphate) in each 5 ml dose from the possession of the accused of the case held as under :-

"10. Narcotic Drugs and Psychotropic Substances have several medical and scientific uses. However, they can be and are also abused and trafficked. The Narcotic Drugs and Psychotropic Substances Act, 1985 was framed to consolidate laws regarding manufacturing/growing, possession, trafficking, sale, and consumption of drugs through stringent provisions for the control and regulation of operations as per the international and national obligations. Various changes have been brought in the NDPS Act through The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 (hereinafter referred to as Amendment of 2014) to ease the process for licensing, stocking, and dispensing, to ensure availability of narcotic drugs and psychotropic substances for medical and scientific use, while preventing and controlling their illicit use. The proposed amendment also transfer the power to permit and regulate the possession, transport, import interstate, export interstate, sale, purchase, consumption or use of manufactured drugs (other than prepared opium), and any preparation containing any manufactured drug from the State to the Central Government so as to have uniform rules across the country. That amendment has not been incorporated to protect a drug paddler.

11. Even the Government of India has issued a notification No. S.O. 2941(E) dated 18/11/2009 in this regard. As per note 4 appended at the end of this notification, it is made clear that for the purpose of determining the quantity, the gross weight of the drug recovered and not the pure content of the psychotropic substance shall be taken into consideration. The said notification was further upheld by Apex Court in the case Signature Not Verified SAN

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of Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441 and Heera Singh Vs. Union of India, 2020 SCC Online SC 382 and 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.

12. Section 2 of The Act 1985 essentially provides for three kinds of offending substances viz; "Manufactured Drug", "Narcotic Drug" and "Psychotropic Substance".

13. "Manufactured Drug" is defined under Section 2(xi) and reads as under :

"(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"

14. "Narcotic Drug" is defined under Section 2(xiv) of the Act, which reads as under :

"Narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs"

15. "Psychotropic Substance" is defined under Section 2(xxiii) and reads as under :

"Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule."

16. Reference also needs to be made to Section 2(xvi)(c), which defines 'Opium Derivative', which reads as under :-

Section 2. Definitions. - In this Act, unless the context otherwise requires,--

x x x x x x (xvi) "Opium derivative" means-- xxxxxx

(c)"Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts" (emphasis supplied) Signature Not Verified SAN

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17. From the above mentioned provisions of the NDPS Act it transpires that the seized drug Welcyrex Cough Syrup containing 'Codeine' which is an opium derivative is a Manufactured drug/ Narcotic Drug.

18. Clause (xi)(b) of Section 2 of the NDPS Act empowers the Central Government to notify a narcotic substance or preparation either to be a manufactured drug or not to be a manufactured drug. Notification dated 14.11.1985 and published in Gazette of India have been issued by the Central government under Section 2(xi)(b) of N.D.P.S.Act wherein "Manufactured Drugs" have been mentioned. Relevant portion of notification, issued under N.D.P.S.Act reads as under:

"S.O.826(E), dated 14th November, 1985.-- In exercise of the powers conferred by sub-clause (b) of clause (xi) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declare the following narcotic substance and preparation to the (be) manufactured drugs, namely:xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x x x x x x x x x x x x x x x x x x x x x (35) Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice." (emphasis supplied)

19. The above-noted provision made in the notification indicates that if a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would not be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S.Act. If it is kept for therapeutic practice.

20. Further, Section 8 of the NDPS Act, articulates that no person shall produce, possess, sell, purchase, transport and consume any narcotic drug or psychotropic substance, except for medical or scientific purposes. For the purpose of the medical and scientific use the Act/rules, imposes requirements, standards, terms and conditions by way of license, permit, or authorization.

21. Sections 17, 18, 21 and 22 of the NDPS Act prescribed the punishment for the violation of provisions of Section 8 of the Act. Section 17 prescribes the punishment inter alia for Signature Not Verified SAN

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possession of "prepared opium"; Section 18 prescribes the punishment inter alia for possession of "opium", Section 21 deals with the punishment inter alia for possession of "manufactured drugs" and Section 22 prescribes the punishment inter alia for possession of Psychotropic substance. So if the drug 'Welcyrex Cough Syrup containing Manufactured Drugs (Codeine Phosphate) is kept or transported other than medical or scientific purpose, in violation of the provisions of any rule, the provisions of section 8 of the Act of 1885 would be attracted.

22. However, by way of amendment of 2014 a definition for 'essential narcotic drug' has been inserted under S.2 (viiia), i.e. a narcotic drug notified by the Central Government for medical and scientific use. Drugs identified as 'essential narcotic drugs' have been made subject to Central Government rules under S.9(1)(a), which would permit and regulate their manufacture, possession, transport, purchase, consumption etc.

23. In exercise of the powers conferred by clause (viiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government by notification dated 5th May 2015 besides other drugs also notifies Methyl morphine (commonly known as "Codeine") and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice; as Essential narcotic drugs.

24. For controlling the Possession, Transport, Import Inter- State, Export Inter-State, Sale, Purchase, Consumption and use of "Essential Narcotic Drugs'' the rules are also amended and notified by the Government of India vide notification No. G.S.R.359(E) dated 05.05.2015. A new Chapter "CHAPTER VA" containaning "Rule 52A to 5ZA '' is added in the Narcotic Drugs and Psychotropic Substances Rule, 1985 by this amendment. The relevant Rules 52A reads as thus-

52A. Possession of essential narcotic drug. -

(1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules.

(2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in accordance with the provisions of these rules.

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(3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely:-

Table

Sl. Name of the essential narcotic drug Quantity No.

                                  (1)                           (2)                                      (3)
                                   1.   Morphine and its salts and all preparations                     500
                                        containing more than 0.2 per cent. of Morphine             Milligrammes

                                  2.    Methyl morphine (commonly known as 'Codeine')                  2000
                                        and Ethyl morphine and their salts (including              Milligrammes

Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in therapeutic practice

3. Dihydroxy Codeinone (commonly known as Oxy- 250 codone and Dihydroxycodeinone), its salts (such as Milligrammes Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs

4. Dihydrocodeinone (commonly known as 320 Hydrocodone), its salts (such as Dicodide, Milligrammes Codinovo, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester, and preparation, admixture, extracts or other substances containing any of these drugs

5. 1-phenethyl-4-N-propionylanilino-piperidine (the Two international-non-proprietary name of which is transdermal Fentanyl) and its salts and preparations, admixture, patches one extracts or other substances containing any of these each of 12.5 drugs microgram per hour and 25 microgram per hour:

Provided that the Controller of Drugs or any other officer authorised in this behalf by him may by special Signature Not Verified SAN

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order authorise, in Form 3B, any such practitioner to possess the aforesaid drugs in quantity larger than as specified in the above Table:

Provided further that such authorisation may be granted or renewed, for a period not exceeding three years at a time. Explanation. - The expression "for use in his practice" covers only the actual direct administration of the drugs to a patient under the care of the registered medical practitioner in accordance with established medical standards and practices.

(4) For renewal of the authorisation referred to in the second proviso to sub-rule (3), application shall be made to the Controller of Drugs at least thirty days before the expiry of the previous authorisation.

(5) (a) The Controller of Drugs may, by order, prohibit any registered medical practitioner from possessing for use in his practice under sub-rule (3) any essential narcotic drug, where such practitioner -

(i) has violated any provision of these rules; or

(ii) has been convicted of any offence under the Act;

or

(iii) has, in the opinion of the Controller of Drugs, abused such possession or otherwise been rendered unfit to possess such drug.

(b) When any order is passed under clause (a) of this sub- rule, the registered medical practitioner concerned shall forthwith deliver to the Controller of Drugs the essential narcotic drug then in his possession and the Controller of Drugs shall issue orders for the disposal of such drugs. (6) The Controller of Drugs may, by a general or special order, authorise any person to possess essential narcotic drug as may be specified in that order.

(7) A recognised medical institution may possess essential narcotic drug in such quantity and in such manner as specified in these rules.

(8) A manufacturer may possess essential narcotic drug in such quantity as may be specified in the licence issued under rule 36, rule 36A, or rule 37 of these rules or the licence issued for manufacturing the preparations of essential narcotic drugs under the rules made by the State Government under section 10 of the Act:

Provided that there shall be no limit to the possession of essential narcotic drug by the Government Opium Factories.]

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(9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules.

25. From the bare perusal of above mentioned provisions of the NDPS Act, Notifications Dated 14.11.1985 and 5th May 2015 and the provisions of rule 53A, it is clear that a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would neither be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S.Act nor Essential Narcotic Drugs under clause (viiia) of Section 2 of the N.D.P.S.Act. Subject to If it is kept for therapeutic practice.

26. However, the Government of India has issued a notification No.S.O.2941(E) dated 18/11/2009 in this regard. As per note 4 appended at the end of this notification, it is made clear that for the purpose of determining the quantity, the gross weight of the drug recovered and not the pure content of the psychotropic substance shall be taken into consideration. By making the percentage content of the drug irrelevant, the impugned notification has the effect of bringing pharmaceutical preparations that are exempt from the NDPS Act, under the fold of the law.

27. Co-accused Sanju @ Sandeep Tiwari was found in possession of 65 bottles of Welcyrex cough syrup of 100ml each total 6500 ml cough syrup containing 10mg (Codeine) in each 5 ml dose, there is no document on record to show that such quantity was kept for therapeutic practice. Therefore, if the said requirement is not satisfied then the entire 100 ml content of the cough syrup containing the permitted quantity of codeine will be treated as 100 mg codeine and in such a situation, the same would certainly fall within the purview of Manufactured Drug and penal provisions of the section 8 red with 17 to 22 of N.D.P.S. Act are attracted. Even the "Essential Narcotic Drugs" would also fall within the purview of Manufactured Drug if they are kept or transported for other than medical or scientific purpose, in violation of the provisions of any Narcotic Drugs and Psychotropic Substances Rule, 1985 and in that case the provisions of section 8 of the Act of 1885 would be attracted.

28. So the argument of learned counsel of the applicant that the seized cough syrup is a Essential Narcotic Drugs and Section 8 of NDPS Act only prohibits the possession, sale, purchase, transport and use of any narcotic drug or psychotropic substance and not of the Essential Narcotic Drugs and the provisions of the section 8 read with 17 to 22 Signature Not Verified SAN

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of N.D.P.S. Act are not attracted in the instant case has no force. According to Notifications Dated 14.11.1985, every drug containing codeine would come under manufactured drugs if it is kept against the provisions of the NDPS Act or Rules. Even those drugs which are compounded with one or more other ingredients containing not more than 100 milligrams of the codeine per dosage unit and with a concentration not more than 2.5 percent in undivided preparations will also come under the purview of manufactured drugs unless it is kept for therapeutic practice.

29. The Hon'ble Supreme Court in the case of Mohd. Sahabuddin Vs. State of Assam, reported in (2012) 13 SCC 491 considered an identical controversy involving recovery of cough syrup containing codeine phosphate in a bail matter observed :-

"10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.

11. 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 only be 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.

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 Signature Not Verified SAN

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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."

30. Hon'ble Apex Court 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).

31. 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 the framing of Rules for permitting and regulating any activity of dealing in narcotic drugs or psychotropic substances." Hon'ble Apex Court in the case of State of Punjab Vs Rakesh Kumar (2019) SCC 466 also reiterates the same view.

32. The facts of the case Binod Kumar @ Binod Kumar Bhagat Vs. State of Bihar, (2018) 14 SCC 199 (supra) Corex cough syrup was seized by the police from the godown of Azad Transport Company Pvt. Ltd and the appellant was the employee (Manager) of Azad Transport Company Pvt. Ltd. The said company was engaged in the business of transportation of goods. The consignee was of Alsafa Surgical, Araria. The appellant was assigned with the duty of godown management. And the prosecution alleges that it was recovered from the appellant. So the apex court granted bail to Signature Not Verified SAN

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the appellant. While in the instant case Police seized 66 bottles (100 ml. each) of Welcyrex cough syrup total 6500 ml cough syrup (containing 10 mg. codeine phosphate in each bottle) from the possession of the co-accused Sandeep Tiwari. Which was illegally being carried by him in a bag. So that judgements do not help the applicant.

33. In the case of Rohit Chaddha vs. State of M.P. (supra) learned Coordinate Bench of this Court did not consider the judgments of the apex court passed in the case of Mohd. Sahabuddin v. State of Assam (supra) and Union of India Vs. Sanjeev V. Deshpande, (supra). So that judgement has no persuasive value.

34. Henceforth, if anyone is found in possession of cough syrup or any other medicine containing Codeine against the provisions of the NDPS Act or Rules then the case will come under the stringent provisions of the NDPS Act. According to Notifications dated 14.11.1985 every drug containing codeine would come under manufactured drugs if it is kept or transported other than medical or scientific purpose, in violation of the provisions of any Narcotic Drugs and Psychotropic Substances Rule, 1985 Even those drugs which are compounded with one or more other ingredients containing not more than 100 milligrams of the codeine per dosage unit and with a concentration not more than 2.5 percent in undivided preparations will also come under the purview of manufactured drugs unless it is kept for therapeutic practice. In the absence of any documents in possession of co-accused Sandeep Tiwari to disclose as to for what purpose 65 bottles of Cough Syrup, which is Schedule 'H' drug containing narcotic substance was being transported, this court is of the considered view that the applicant has failed to satisfy the said 2nd condition that the said syrup containing codeine was kept for therapeutic practice. So the case will come under the stringent provisions of the NDPS Act."

8. So, in the light of abovementioned judgment it is clear that if anyone is found in possession of cough syrup or any other medicine containing Codeine against the provisions of the NDPS Act or Rules, then the case will come under the stringent provisions of the NDPS Act. It is alleged that the police seized 360 bottles of Wings Onerex Cough syrup containing Narcotic substance (manufactured drugs) from the possession of Signature Not Verified SAN

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applicants and they were not having any document 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 applicants.

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

10. A copy of this order be placed in the record of M.Cr.C.Nos.16725/2021 & 21992/2021.

(Rajeev Kumar Dubey) Judge as/

Signature Not Verified SAN

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