Mukesh Kumar vs The State Of Bihar
2023 Latest Caselaw 966 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.50012 of 2022
   Arising Out of PS. Case No.-238 Year-2022 Thana- PATNA GRP CASE District- Patna
======================================================

MUKESH KUMAR, Son of Late Binda Chaudhary, Resident of Village - Azad Nagar Ganj, Block Road, Ward no.5, Simri, Bakhtiyarpur, District- Saharsa.

... ... Petitioner/s Versus The State of Bihar

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Chandra Mohan Jha, Advocate For the Opposite Party/s : Mr. Akhileshwar Dayal, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 14-03-2023

Heard learned counsel for the petitioner and learned

APP for the State.

2. The petitioner seeks regular bail in connection with

Special (NDPS) Case No. 47 of 2022, arising out of GRP Patna

P.S. Case No. 238 of 2022 registered for the offence punishable

under Sections 21 C/29 of the NDPS Act and under Sections

274, 275, 276/ 34 of the IPC.

3. As per prosecution case, on 25.04.2022 during the

course of checking at railway platform, petitioner with co-

accused were found in suspicious condition and on search, from

the possession of the petitioner 98 pieces of WISCOF Cough

Syrup - 100 ml containing Codeine Phosphate and Triprolidine

Hydrochloride and a touch screen mobile were recovered from Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

his pitthu bag and the same quantity of the said cough syrup and

touch screen mobile also recovered from the co-accused from

his pitthu bag. The total quantity of cough syrup recovered is

19.6 litres. They could not produce any valid document to carry

the said quantity of contraband.

4. Learned counsel for the petitioner has submitted

that petitioner is a student having no criminal antecedent and

has been falsely implicated in the present case. He has further

submitted that even if the alleged recovered 98 bottles of cough

syrup from possession of the petitioner containing only 9.8 gram

of Codein Phosphate if taken into account it would tantamount

to small quantity and is not commercial quantity.

5. Learned counsel for the petitioner further

contended that only psychotropic substance contained in the

contraband is required to be taken into consideration while

determining quantity of prohibited drug i.e. Codein Phosphate

and not the whole of the mixture contained in the cough syrup.

6. He has further submitted that there is no

independent witness to support the prosecution case. The

investigation in the present case is completed and charge-sheet

has already been submitted and as such there is no chance of his

absconding and tampering with the evidence. The conclusion of Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

trial will take time, hence prayed for release of the applicant on

bail.

7. Learned APP vehemently opposed the instant bail

petition. He has submitted that the petitioner is indulged in

illegal business of drug trafficking and thus is not entitled to bail

on the contours of Section 37 of the NDPS Act. There is

recovery of contraband bottles from the present accused thus

there is statutory presumption under Section 35 and 54 of the

NDPS Act against the accused person.

8. Learned APP has submitted that there is direct

recovery of 98 pieces of WISCOF cough syrup carrying 100 ml

each i.e. total 9.8 litres which was carrying in his hand in a

black colour bag and there is similar recovery from the co-

accused namely Ayush Kumar (a juvenile) i.e. 9.8 litres and thus

the total recovery in the case is 19.600 litres and they were not

having documents to keep the same in their possession. It is

further submitted that total recovery in commercial quantity

under the NDPS Act and the petitioner does not deserve bail.

9. To determine as to whether the petitioner was in

actual possession of commercial quantity of Codein, it is

relevant to refer to the notification specifying small and

commercial quantity for the purpose of the Act S.O. 1055 (E) Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

dated 19th October, 2001 published in Gazette of India, Extra

Part-II, Section 3 (ii) dated 19th October, 2001, as amended on

18.11.2009. As per entry 28 of the list, small quantity of Codein

is defined as 10 gram and a commercial quantity of Codein is

defined as 1kg.

10. The question for consideration in this case is as to

whether for the purpose of the NDPS Act, 1985, a commercial

quantity of Codein has been recovered from the petitioner and

whether the rigour of Section 37 of the NDPS Act which

regulate the grant of bail for offence involving commercial

quantity of drugs is attracted or not.

11. The scheme of NDPS Act provides graded

sentences for possession of small, intermediate and commercial

quantities of narcotic drugs or psychotropic substances.

Therefore, the penalties or the sentencing has a direct nexus

with the amount of contraband psychotropic substance.

12. Section 21 (c) of the NDPS Act provides for

punishment for contravention in relation to manufactured drugs

and preparations where the contravention involves commercial

quantity, with rigorous imprisonment for a term which shall not

be less than 10 years but which may extend to 20 years, and

shall be liable to fine which shall not be less than one lakh Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

rupees but which may extend to two lakh rupees. Section 29 of

the NDPS Act provides punishment for abatement and criminal

conspiracy.

13. Besides, Section 37 of the NDPS Act imposes

certain limitations when granting bail for offences involving a

commercial quantity of narcotic drugs or psychotropic

substances. These limitations are in addition to those under the

Cr.P.C. or any other law for the time being in force.

14. The judgment of Hira Singh vs. Union of India

(AIR 2020 SC 3255) squarely covers the issue and the Hon'ble

Supreme Court held that total weight of the manufactured drug

or preparation including the neutral material is required to be

considered while determining small quantity or commercial

quantity.

15. In Hira Singh (supra), the three Judge Bench of

the Hon'ble Supreme Court had held thus:-

"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 Narcotic Drugs or Psychotropic Substances."

Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

16. The Hon'ble S.C. in the order dated 17.11.2022 in

Intelligence Officer, Thiruvanantapuram vs. Naushad K.K.

& Ors. (2022 Livelaw (SC)978) Cr. App. No. 1726 of 2019

reiterated that neutral substance quantity cannot be ignored

while labeling the quantity of contraband recovered on 'small

quantity' or commercial quantity.

"There is no cavil to the issue that the judicial pronouncement now settles the issue in "Hira Singh & Anr. vs. Union of India & Anr." reported as 2020 SCC online SC 382 opining that the decision of this Court relied upon in impugned order "E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161" is no more good law and in determining as to what is the quantity, the neutral substance quantity is not be ignored".

17. In view of the gravity of the consequences of drug

trafficking, the offences under the NDPS Act have been made

cognizable and non-bailable. To prevent the devastating impact

on the people of nation, parliament in its wisdom deemed it fit

to introduce stringent conditions for grant of bail under the Act.

Section 37 (b) (i) gives effect to the doctrine of audi alteram

partem. Since the crime is an act against the society, the

legislature has contemplated that public prosecutor must be Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

given an opportunity to oppose the bail application under the

Act. Additionally, under Section 37 (b) (ii) of the NDPS Act, the

Court is not required to be satisfied about the dual conditions

i.e. prima facie opinion of the innocence of the accused and that

the accused will not commit a similar offence while on bail, but

the court must have "reasonable grounds" for such satisfaction.

The standard of satisfaction in such cases is more than

satisfaction on a prima facie opinion.

18. The accused at this stage cannot be presumed to

be 'not guilty' of the offence that he is charged with.

Additionally, the presumption under Section 35 and 54 of the

NDPS Act are against the petitioner's innocence. Since this court

is not satisfied on this ground, there is no question to consider

that the accused will not commit the offence while on bail.

19. The quantity of Codein seized from the petitioner

comes under the commercial quantity being 9.8 litres

(98x100ml) cough syrup which is much more than commercial

quantity for Codein (mention in Sr. No. 28 of the Table) as the

quantity seized shall apply to the entire mixture or solution.

Hence, the rigors of Section 37 of the NDPS Act, 1985 is

attracted in this case. The conditions stipulated under Section 37

of the Act are not satisfied and there are no reasonable grounds Patna High Court CR. MISC. No.50012 of 2022 dt.14-03-2023

to presume that petitioner is not guilty of offence, accordingly,

this is not a fit case where the petitioner be admitted to bail.

20. Accordingly, the prayer for bail of the

abovenamed petitioner is rejected. Considering the facts and

circumstances of this case, the petitioner is directed to surrender

within two weeks from today and in case of non-compliance of

this direction by the petitioner, the learned court below is

directed to take the necessary steps for arrest of the

accused/petitioner after the said period granted for his surrender.

(Sunil Dutta Mishra, J)

khushbu/-

AFR/NAFR                AFR
CAV DATE                22.02.2023
Uploading Date          14.03.2023
Transmission Date