Yameen Khan vs The State Of Madhya Pradesh
2022 Latest Caselaw 3636 MP

                                                                            1
                                            IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                         BEFORE
                                                           HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                    ON THE 15th OF MARCH, 2022

                                                       MISC. CRIMINAL CASE No. 13242 of 2022

                                               Between:-
                                               YAMEEN KHAN S/O LATE NASEEM KHAN , AGED
                                               ABOUT 38 YEARS, OCCUPATION: PVT.JOB WARD
                                               NO.01/03, SOHAGPUR (MADHYA PRADESH)

                                                                                                          .....PETITIONER
                                               (BY SHRI P.K.MISHRA, ADVOCATE)

                                               AND

                                               THE STATE OF MADHYA PRADESH THROUGH
                                               P.S.KOTWALI P.S.KOTWALI (MADHYA PRADESH)

                                                                                                       .....RESPONDENTS
                                               (BY SHRI AJEET RAWAT, GOVT. ADVOCATE)

                                             This application coming on for admission this day, the court passed the
                                     following:
                                                                             ORDER

This is the first bail application under Section 439 of Cr.P.C filed by the applicant for grant of bail.

T he applicant has been arrested on 18.01.2022 by Police Station Kotwali

District Shahdol in connection with Crime No.51/2022 for the offence punishable under Sections 8, 21, 21C of NDPS Act and Section 5/13 of M.P. Drugs Control Act.

It is submitted that the applicant has falsely been implicated in the crime. He has not committed any offence in any manner. It is argued that in the facts and circumstances of the present case no offence under the NDPS Act could have been registered against the present applicant. At the most the offence which could have been registered against the present applicant is for carrying a manufactured drug which comes under the M.P. Drugs Control Act and not under the NDPS Act. It is argued that the aforesaid question was considered by various High Courts in the cases of Kamlesh Mali Vs. The State of Madhya Pradesh [M.Cr.C.No.19693/2018] decided on 10.08.2018, Shyam Bihari @ Daddu Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2022.03.22 15:33:19 IST Mishra Vs. The State of Madhya Pradesh [M.Cr.C.No.10184/2015] decided

on 11.08.2015, Iqbal Singh Vs. State [Bail Application No.645/2020] decided on 31.07.2020 and Manoj Kumar Bhuyan Vs. State of Orissa [BLAPL No.6438/2020] decided on 15.07.2021. It is argued that definition of "manufactured drug" is given under Section 2 (xi) of NDPS Act, which is referred

as under :-

"Section 2(xi) "manufactured drug" means - (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."

It is submitted that recently Central Government has also issued a notification whereby these drugs are being considered under the definition of 'manufactured drug' and the drug shown at Serial No.35 i.e. 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 per cent in undivided preparations and which have been established in therapeutic practice. It is argued that in the present case 120 bottles of Codectuss TR cough syrups have been seized from the possession of the applicant and another co-accused. The quantity of Codeine phosphate in each of the bottles is 1.25 mg/10 mg for syrup of 100 ml. It is submitted that the quantity of NDPS substance in the cough syrup is on a smaller side. Even otherwise the cough syrup is being used for medicinal purpose, therefore, the provisions of NDPS Act will not be attracted. It is argued that looking to the quantity of drug contained in the cough syrup as well as the notifications which have been issued by the Government of India as well as the Signature Not Verified SAN

judgments passed in the aforesaid cases, he prays for grant of bail. He his ready to Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY

abide by all the terms and conditions that may be imposed by this Court while Date: 2022.03.22 15:33:19 IST

considering his application for grant of bail.

Per contra, learned counsel appearing for the State has vehemently opposed the bail application stating therein that the definition of 'manufactured drug' has been considered recently by this High Court in the case of Ranjan Vs. The State of M.P. (M.Cr.C.No.26515/2018) and other case in analogous hearing and detailed judgment has been passed on 02.01.2019 considering the notification of Central Government whereby it was held that the case of NDPS Act is clearly attracted in the facts and circumstances of these cases. The heavy burden is upon

the applicant to establish that how and for what purpose, he was in possession of the contraband article. It is argued that the Hon'ble Supreme Court in several cases has held that the whole quantity i.e. the gross contraband material which has been recovered has to be taken into consideration while seizure is made. Placing reliance upon the judgment of Hon'ble Supreme Court in the cases of Harjit Singh Vs. State of Punjab reported in 2011 Cr.L.R. (SC) 355 , Union of India and Anr. Vs. Sanjeev V. Deshpande reported in 2014 Cr.L.R. SC 896: (2014) 13 SCC 1 and Ravi alias Ravikant Vs. State of Rajasthan reported in 2016 Cri.L.J. 3309, it is argued that restrictions contained in Section 37 of the NDPS Act is applicable to the facts and circumstances of the case, no relaxation from the aforesaid can be derived from. Further placing reliance upon the recent judgment passed by the Hon'ble Supreme Court in the case of Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan reported in 2021 (10) SCC 100, wherein the Hon'ble Supreme Court has considered the provisions of Section 37 of the NDPS Act in detail.

It is argued that in view of the aforesaid pronouncements of the Hon'ble Supreme Court, the gross quantity of contraband article is to be taken into consideration. It is submitted that 120 bottles of Codectuss TR cough syrup have been seized from the possession of the present applicant along with other co- accused. There is nothing on record to show that it has been carried by the present applicant for any medicinal purpose. No documents to demonstrate that he is a Signature Not Verified SAN regular medical practitioner or a pharmacist or any other document to demonstrate Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY that he is a license holder for carrying 120 bottles of NDPS substance. In absence Date: 2022.03.22 15:33:19 IST

of any such license or authority to carry these NDPS substance or the codeine phosphate cough syrups, the case under the NDPS Act is clearly made out against the present applicant. Looking to the custody period of the applicant, he has prayed for rejection of the bail application.

Considering the overall facts and circumstances of the case and placing reliance upon the judgments passed by the Hon'ble Supreme Court in the aforesaid cases; and recently in the case of Md. Nawaz Khan (supra), the gross quantity has to be taken into consideration, further placing reliance upon the judgment passed by the Coordinate Bench of this Court in the case of Ranjan (supra), this Court does not deem it appropriate to allow this application.

The application is hereby dismissed.

(VISHAL MISHRA) JUDGE AM

Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2022.03.22 15:33:19 IST