Orissa High Court
Suresh Parida vs State Of Odisha .... Opposite Parties on 5 December, 2023
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 10943 of 2023
Suresh Parida .... Petitioner
Mr. G.K. Rath, Advocate
-versus-
State of Odisha .... Opposite Parties
Mr. S.S. Pradhan, Additional Government Advocate
CORAM:
JUSTICE SAVITRI RATHO
ORDER
Order No. 05.12.2023
04. (Through Hybrid Mode)
1. Mr. G.K. Rath, learned counsel appearing for the Petitioner
submits that the Petitioner is in custody since 09.08.2023 and the
Petitioner has no criminal antecedents and also two other co-
accused persons, namely, Gouri Saha and Rinky Singh have been
granted bail pursuant to the order dated 04.10.2023 passed by this
Court in BLAPL No.10576 of 2023. He also submits that the
Petitioner is the driver of the auto from which, the cough syrup has
been recovered and he had no connection with the cough syrup or
any knowledge that the cough syrup was being transported by the
accused persons. He submits that in the meanwhile, the
investigation has been completed and the charge sheet has been
filed.
2. Mr. Rath, learned counsel relies on the decision dated 15.07.2021
of this Court in BLAPL No.6438 of 2020 and other connected bail
applications. In the said judgment, the observation of this Court that
"cough syrups containing codeine upto the prescribed limit (as per
Entry No.35 of the Notification) will not come within the definition
of "manufactured drug" provided the drug is for therapeutic
purpose or medicinal use".
3. Mr. S.S. Pradhan, learned Additional Government Advocate
opposes the prayer for bail stating that a huge quantity of cough
syrup (1000 bottles) were being transported in the auto-rickshaw
and the submission that the Petitioner not aware of its transportation
cannot be accepted. Mr. Pradhan, learned AGA also submits that he
has not obtained the up to date case diary but submits that the
allegations against the present Petitioner is that on receiving
information from reliable source that four persons namely, Gouri
Saha and Rinky Singh of Daleipada, Suresh Parida of Tanlapada
and Rakesh Singh of Ulunda were selling/dealing/transporting
contra band cough syrup (drugs) in an auto from Ainthapali to
Tangarapali, Sambalpur, the SI proceeded to the spot without
obtaining search warrant as she apprehended that the accused
persons may escape. Complying with the mandatory provisions of
the NDPS Act, they proceeded to the spot along with two
independent witnesses, namely, Suratha Rout and Jay Patel. On
reaching Tangarapli chowk, she found four persons were
dealing/selling/transporting contraband cough syrup kept in two
plastic bags in the auto-rickshaw. Seeing the Police, the accused
persons started running by dropping the plastic bags and left the
auto-rickshaw at the spot. But the police chased and caught them.
When they were apprehended, they confessed that the plastic bags
contained sealed contra band cough syrup bottles. As per
specification mentioned in the level of cough syrup, 5ml of cough
syrup contains 10 mg of codeine phosphate, 100ml of cough syrup
contain 200 mg of codeine phosphate and 1000 bottles contain 200
gram codeine phosphate. The seized 1000 bottles of cough syrup
contain 200 gms of codeine phosphate of syrup solution. As the
accused persons could not produce any license or authority for
dealing/ selling/ transporting, the cough syrup has been seized and
they were arrested. Under the impression that 1000 bottles of cough
syrup contained 200 grams of codeine phosphate, the FIR has been
registered under Section 21(b) and 29 of the NDPS Act against the
accused persons. As per the decision of the apex Court in Hira
Singh v. Union of India; 2020 SCC Online SC 382, in para-10.4,
the total weight of the "manufactured drug" or "preparation"
including the neutral substance is required to be considered while
determining small quantity or commercial quantity for the purpose
of achieving the objects and purpose of the NDPS Act.
4. List this case on 21.12.2023 for further hearing. Mr. S.S.
Pradhan, learned AGA is directed to obtain the Case Diary and
criminal antecedents of the Petitioner for perusal of the Court.
(Savitri Ratho)
Judge
S. Behera
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Dec-2023 17:46:48
