2021 (6) TMI 1009 - HC - Indian Laws

Grant of regular bail - Smuggling - Phensedyl - recovered bottles were found containing Codeine Phosphate which is a manufactured drug - recovery of commercial quantity of Codeine or not - whether the rigour of Section 37 of the NDPS Act which regulates the grant of bail for offence involving commercial quantity of drugs is attracted or not? - HELD THAT - Matter is referred to Larger Bench to decide following issues - a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between? b) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug? c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available? Since the question is referred to a larger Bench, this Court is inclined to grant the petitioner interim bail for 90 days on the petitioner furnishing a personal bond in the sum of ₹ 35,000/- with surety in the like amount to the satisfaction of the Trial Court subject to the conditions imposed - application allowed.

Issues Involved:
1. Grant of regular bail under Section 439 CrPC.
2. Determination of commercial quantity under the NDPS Act.
3. Application of Supreme Court judgments on commercial quantity.
4. Interpretation of Section 37 of the NDPS Act.
5. Relevance of neutral substances in determining commercial quantity.
6. Applicability of Note 4 of the S.O. 1055 (E) notification.

Detailed Analysis:

1. Grant of Regular Bail under Section 439 CrPC:
The petitioner sought regular bail in Complaint Case No.62/2020 under Section 439 CrPC. The case was registered at Police Station Customs (IGI Airport, Delhi) under Sections 21(c) and 23(c) of the NDPS Act. The petitioner was apprehended while traveling to Saudi Arabia, and his baggage was found to contain 110 bottles of Phensedyl, a cough syrup with Codeine Phosphate, a manufactured drug under the NDPS Act.

2. Determination of Commercial Quantity under the NDPS Act:
The core issue was whether the petitioner was in possession of a commercial quantity of Codeine. The NDPS Act defines a commercial quantity of Codeine as 1000 grams. The total weight of the cough syrup was 11,000 ml, with a Codeine concentration of 0.17%, translating to 18.7 grams of pure Codeine.

3. Application of Supreme Court Judgments on Commercial Quantity:
The prosecution relied on the Supreme Court judgments in Md. Sahabuddin v. State of Assam and Hira Singh v. Union of India, which state that the total weight of the drug, including neutral substances, should be considered for determining commercial quantity. The petitioner argued that these judgments were not applicable as they involved larger quantities and different contexts.

4. Interpretation of Section 37 of the NDPS Act:
Section 37 of the NDPS Act imposes stringent conditions for granting bail for offenses involving commercial quantities. The court examined whether the petitioner’s case attracted the rigors of Section 37, which requires the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail.

5. Relevance of Neutral Substances in Determining Commercial Quantity:
The court discussed the relevance of neutral substances in determining the commercial quantity of a drug. The Supreme Court in Hira Singh’s case held that the total weight of the mixture, including neutral substances, should be considered. However, the Delhi High Court in Iqbal Singh v. State distinguished between illicit substances mixed with neutral substances and medicinal preparations with minuscule quantities of narcotic substances.

6. Applicability of Note 4 of the S.O. 1055 (E) Notification:
Note 4 of the S.O. 1055 (E) notification states that the quantities shown in the notification apply to the entire mixture or preparation containing the narcotic drug. The court noted that this note suggests considering the total weight of the mixture, including neutral substances, for determining commercial quantity.

Separate Judgments Delivered:
The court referred the matter to a larger bench to resolve the following questions:
a) Whether the weight of neutral substances should be ignored for determining the nature of the quantity seized in cases involving manufactured drugs with minuscule percentages of narcotic substances.
b) Whether Note 4 of the S.O. 1055 (E) notification should be inapplicable to manufactured drugs with minuscule percentages of narcotic substances.
c) Whether Note 4 should apply to cough syrups containing minuscule percentages of Codeine due to their medicinal value and availability.

Interim Bail Granted:
Pending the decision of the larger bench, the court granted the petitioner interim bail for 90 days with specific conditions, including staying in Delhi, reporting to the police station, and providing contact information.

Conclusion:
The court recognized the need for a larger bench to authoritatively decide on the applicability of Note 4 and the interpretation of commercial quantities in cases involving medicinal preparations with minuscule narcotic content. The interim bail was granted considering the unique circumstances and pending a final decision on the legal questions involved.

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