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2021 (5) TMI 698 - HC - Indian LawsGrant of Bail - Smuggling - illegal transport of 65 bottles of Welcyrex cough syrup of 100 ml each - whether the drug was within the permissible limit under Section 8 of the Act of 1985 or not - HELD THAT - The seized drug 'Welcyrex Cough Syrup containing 'Codeine' which is an opium derivative is a Manufactured drug/ Narcotic Drug - From the bare perusal of 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 - 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. 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 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. 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. So, looking to the facts and circumstances of the case and the strength of the evidence collected by the Police against the present applicant during investigation of the crime, prima facie it cannot be said that there is a reasonable ground to hold that the applicants have committed any offence punishable under the N.D.P.S. Act and also there is no material to infer that if he is released on bail then he will indulge in the crime punishable under the N.D.P.S. Act - the applicant is directed to be released on bail upon his furnishing personal bond in the sum of ₹ 50,000/- with one surety in the like amount to the satisfaction of the concerned C.J.M/trial Court for his appearance before the trial Court on all such dates as may be fixed in this behalf by the trial Court during the pendency of trial. Bail application allowed.
Issues Involved:
1. Legality of possession and transportation of cough syrup containing Codeine Phosphate. 2. Applicability of the NDPS Act to the seized cough syrup. 3. Conditions for bail under Section 439 of the Cr.P.C. Issue-wise Detailed Analysis: 1. Legality of possession and transportation of cough syrup containing Codeine Phosphate: The applicant was arrested in connection with the illegal possession and transportation of 65 bottles of Welcyrex cough syrup containing Codeine Phosphate. The prosecution alleged that the co-accused was found with the said cough syrup, which was purchased from the applicant. The defense argued that the cough syrup falls under the category of "Essential Narcotic Drugs" as defined under Section 2(viiia) of the NDPS Act, and thus, the provisions of Section 37 of the Act are not attracted. The defense also argued that the quantity of Codeine in the syrup was within the permissible limit and should not be considered a "manufactured drug" or "psychotropic substance" as per the NDPS Act. 2. Applicability of the NDPS Act to the seized cough syrup: The court examined the definitions under the NDPS Act, including "manufactured drug," "narcotic drug," and "psychotropic substance." It was noted that Codeine Phosphate is classified as a "manufactured drug" under the NDPS Act. The court also referred to various notifications and amendments, including the 2014 Amendment Act and notifications dated 14.11.1985 and 5.5.2015, which regulate the possession and transportation of such drugs. The court emphasized that even if the cough syrup falls under the category of "Essential Narcotic Drugs," it must be possessed for therapeutic practice. The absence of any documents proving the therapeutic use of the seized syrup led the court to conclude that the provisions of the NDPS Act were applicable. 3. Conditions for bail under Section 439 of the Cr.P.C.: The court considered the arguments of both parties and the evidence presented. It was noted that the applicant was not found in possession of the cough syrup at the time of the incident, and no incriminating evidence was directly linked to him. The court also considered the applicant's lack of criminal history and the fact that he had been in custody since 23/08/2020. Based on these factors, the court concluded that there were no reasonable grounds to believe that the applicant had committed an offense under the NDPS Act. Consequently, the court granted bail to the applicant, subject to certain conditions, including compliance with the bond terms, cooperation in the trial, and not committing a similar offense. Conclusion: The court granted bail to the applicant, emphasizing that the seized cough syrup containing Codeine Phosphate falls under the NDPS Act if not possessed for therapeutic practice. The court also highlighted the lack of direct evidence against the applicant and his compliance with the bail conditions. The order remains operative subject to the applicant's adherence to the specified conditions.
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