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TMI Blog2017 (12) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... d the investigation in the present case is still continuing, no case for grant of bail to the present petitioners is made out. - S. B. Criminal Misc. Bail No. 3790 / 2017, S.B. Criminal Misc. Bail No. 4979 / 2017 - - - Dated:- 1-11-2017 - Pushpendra Singh Bhati, J. For the Petitioner : Mr.H.S.S. Kharlia, Senior Advocate assisted by Mr.Trilok Singh Rathore Mr.H.S.Sidhu, Mr.R.S.Choudhary For the Respondent : Mr. V. S. Rajpurohit PP for the State ORDER 1. The petitioners have moved these bail applications under Section 439 Cr.P.C. 2. The allegations in FIR No.107/2017 (S.B.Criminal Misc. Bail Application No.3790/2017) registered at Police Station Sangeria pertain to the offence under Sections 8/21 and 25 of the NDPS Act and Section 18 C/27 B of the Drugs Act; in FIR No.244/2017 (in S.B.Criminal Misc. Bail Application No.4979/2017) registered at Police Station Jawahar Nagar pertain to the offence under Section 8/21 of the NDPS Act and; in FIR No.153/2017 (in S.B.Criminal Misc. Bail Application No.5055/2017) registered at Police Station, Sangaria, District Hanumangarh pertain to the offences under Section 8/21 of the NDPS Act and Section 18C/27B of the Drugs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Psychotropic Substances and their small quantity and commercial quantity have been defined. 8. The cough syrup in question contained codeine, which is at serial No.28 of the Schedule aforementioned. The Chemical Name of Codeine is 3-0-methylmorphine. The small quantity in the Schedule for the same is 5 grams and commercial quantity is 100 grams. 9. From the record, it is clear that Wincerex contained Codeine Phosphate and Triprolidine Hydrochloride Syrup. Each bottle contained 100 ml. Wincerex, and therefore, there was 200 grams of Codeine Phosphate. Thus , in one of the petitions relating to recovery of 199 bottles, there was 39.80 grams of Codeine Phosphate in totality, and 4.97 grams of Triprolidine, with total content of 44.77 grams. 10. Thus, learned counsels for the petitioners were trying to point out that from the Schedule, as mentioned above, the commercial quantity of Codeine was 100 grams, whereas in one of the cases in hand relating to the recovery of 199 bottles of Wincerex, the quantity of Codeine Phosphate and Triprolidine Hydrochloride was only 44.77 grams; and in the case of recovery of 34 bottles, the said quantity was 340 mg i.e.10 mg per bottle; and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rexcof is a product of Cipla, a known pharmaceutical company and the said company has displayed it i.e. Rexcof to be schedule H drug. Even, the Drug Controller General of India vide notification No. SO- 826(E) dated 14.11.1985 issued under the NDPS Act has also exempted certain drugs which are manufactured one containing narcotic drug to the extent permitted in respect to Codeine in entry No. 35 of the said schedule. While referring to the judgement captioned as Jagjit Singh vs. State of Punjab decided on 16.07.2012 in CRM-M-5632 of 2010 (O M), learned counsel for the petitioner further contends that the drugs Codeine-Phosphate being covered at Serial No. 35 of the notification No.SO-826(E) dated 14.11.1985 and, as such, is not covered under the provisions of NDPS Act. 9. Here, it would also be pertinent to mention that Drug Controller General India, Directorate General of Health Services, New Delhi has also written letters to all the State Drugs Controller in India on 26.10.2005 vide letter (Annexure P-10) regarding sale of cough linctus containing Codeine Phosphate, which clearly clarifies that by virtue of the fact that cough syrups preparation contain Codeine and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -OW 17906-W granted on 27.1.2006 which are valid upto 26.1.2011 the firm has further applied for its renewal vide challan No. 503566 dtd. 25.2.2011. In these licenses Sh. Jagjeet Singh S/o Sh. Jaskaran Singh is the sole prop. Of the firm and Sh. Pilot Kumar S/o Sh. Gheeta Ram is the competent person of the firm. At the time of occurrence petitioner Jagjit Singh s/o Jaskaran Singh R/o Ghudda Distt. Bathinda did not produce valid drugs licences and purchase bills for drugs recovered from him on date of recovery. Hence Committee is of the opinion that Jagjeet Singh may be prosecuted under Section Drugs and Cosmetics Act, 1940 and Rules 1945 . 12. Adverting to the facts of the case in hand, the recovery of 800 bottles of Rexcof even though, it contains Codeine- Phosphate and chlorpheniram-ine Maleate being covered at Serial No. 35 of the notification No. SO-826(E), dated 14.11.1985 do not attract punitive provisions of NDPS Act, especially, in the circumstances that the petitioner is a holder of the licence and has purchased the medicines through valid bill. 13. In the light of what has been discussed above, the petition is allowed. Consequently, FIR No.254, dated 22.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) issued by the Central Government in Official Gazette, extracted above, a dilution or prepration with specified limit of Codeine per dosage unit cannot be considered to be a 'manufacured drug'. It thus follows that if provisions of Section 2(xiv), and 2(xi) (b) are considered in context of notification dated 14.11.1985, it has to be concluded that 'Phensedyl Cough Syrup', per se would not be a Narcotic drug or Manufactured Drug. 52. It appears that there was an apprehension that on account of presence of Codeine in drug like Phensedyl, the compound would be treated as a Narcotic Substance. It appears that so as to clarify the issue, Directorate General of Health Services addressed a memo to all the State Drugs Contollers dated 26.10.2005 in which the following was clarified : As you are aware there are number of Cough preparations like Corex of M/s Prizer Limited, Mumbai, Phensedyl of M/s. Nicholas Piramal India Limited Mumbai, Codokuff of M/s. German Remedies, Codeine Linctus of M/s. Zydus Alidac etc. moving in inter state commerce. These preparations contain among other drugs Codeine Phosphate 10mg as one of the ingredients. By virtue of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in huge quantity to various parties and has helped Accused no.1 to purchase and sell it without bills and the accused thereby committed the offence.' 60. Case of the petitioner, as noted above, is that the petitioner has not been found abetting commission of offence involving possession of Narcotic Drug. Rather Phensedyl Cough Syrup is a Schedule 'H' drug defined under D C Rules. Phensedyl contains Codeine , which only in isolation would be a Narcotic Substance. In this regard prvosions of D C Act need to be considered. 62. Under the provisions of D C Act any drug containing Codeine or other chemicals/substances reflected in schedule 'H', are required to be regulated. Section 18 (c ) of the D C Act provides as under: Prohibition of manufacture and sale or certain drugs and cosmetics. - From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf- (a) x x x x x x x x x x x (b) x x x x x x x x x x x (c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this case in context of N.D.P.S.Act and D C Act, this Court is of the considered opinion that Phensedyl Cough Syrup would not constitute a Narcotic Drug, because it is not Codeine (a narcotic drug). Codeine is only one of the ingredients, which is required for therapeutic purposes. Codeine contained in Phensedyl syrup is within the prescribed limits and percentage, as prescribed under Central Government Notification issued under the N.D.P.S.Act. 75. It cannot be disputed that Phensedyl is a Schedule 'H' drug, under the D C Act. Conditions under the D C Act are required to be complied with by the licenced stockist. For contravention of the said provisions, surely provisions of N.D.P.S.Act cannot be invoked to conclude that the recovered article has become a Narcotic Drug. It would be an offence punishable under the D C Act, under the relevant provisions which are extracted above. 92. Taking a cue from the above extracted portion of the judgment in context of the present case, it is observed that the drug/substance at issue is not included under Schedule I appended to the N.D.P.S. Rules and, therefore, provisions of Section 8 of the N.D.P.S.Act would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 per cent in undivided preparations and which have been established in therapeutic practice. 16. Learned Public Prosecutor vehemently opposed the bail applications and has shown to this Court the precedent law laid down by the Hon ble Punjab and Haryana High Court in Inderjeet Singh Vs. State of Punjab, reported in (2014) 4 CriCC 151, whereby the manufacturing drugs were declared to be within the purview of the NDPS Act. 17. Learned Public Prosecutor has also relied upon the judgment in the case of Devilal Vs. State of Rajasthan (S.B.Criminal Misc. II Bail Application No.2638/2016 decided on 01.06.2016), whereby a coordinate Bench of this Hon ble High Court has dealt with the judgments referred and has also placed reliance upon the precedent law laid down by the Hon ble Apex Court in Mohd. Sahabuddin Anr. Vs. State of Assam, reported in (2012) 13 SCC 491, and has also dealt with the judgments cited by learned counsel for the petitioner. 18. The order passed by the coordinate Bench of this Hon ble High Court in Devilal Vs. State of Rajasthan (supra) reads as under:- The instant second application for bail has been filed under Section 439 Cr.P.C. on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken into account for determining whether it is covered in the small, noncommercial or commercial quantity. He urged that in the case at hand, the total weight of the psychotropic drug recovered from the petitioner s possession is well above the commercial quantity. Therefore, the restrictions of Section 37 of the N.D.P.S. Act clearly operate against the petitioner and, therefore, he does not deserve to be released on bail. Heard and considered the arguments advanced by the learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. Following drugs were recovered from the petitioner :- (i) 1150 tablets Alprazolam gross weight 172.50 grams, (ii) 1140 capsules Parvon spas. As per Item No.178 of the Schedule appended to the N.D.P.S. Act, upto 5 grams is defined as small quantity, whereas upto 100 grams is quantified as non-commercial quantity for the salt Alprazolam. The gross weight of the Alprazolam tablets recovered from the petitioner s possession is 172.50 grams. Therefore, definitely the gross weight of the drug recovered from the petitioner was well above the commercial quantity. The Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge as well as by the High Court was not justified. The Learned Counsel placed reliance upon certain decisions of the High Court of Punjab and Haryana in support of his submissions. Reliance was also placed upon Rules 65, 97, 61(1) and 61(2) of the Drugs Cosmetics Rules along with Section 27 of the Drugs Cosmetics Act in support of his submissions. It was also contended that the Appellants have spent more than 180 days in custody since 17/18.2.2012 and were entitled for bail under Section 36A(4) of N.D.P.S. Act read with proviso (a) to Section 167(2) of Code of Criminal Procedure. 6. The bail application was opposed on behalf of the State contending that the seized materials, which admittedly contained codeine phosphate of prohibited quantity, were found concealed with household articles in the vehicle, that it was not the case of the Appellants that the seized pharmaceutical products were meant for supply to any dealer or shop to be sold by way of medicine under the prescription of approved medical practitioner and having regard to total quantity content of the prohibited substance, the plea of the Appellants that provisions of the N.D.P.S. Act are not attracted, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no obligation to hold a licence under the Drugs Cosmetics Act. 10. At the very outset, the abovesaid submission of the Learned Counsel is liable to be rejected, inasmuch as, the conduct of the Appellants in having transported huge quantity of 347 cartons containing 100 bottles in each carton of 100 ml. Phensedyl cough syrup and 102 cartons, each carton containing 100 bottles of 100 ml. Recodex cough syrup without valid documents for such transportation cannot be heard to state that he was not expected to fulfill any of the statutory requirements either under the provisions of Drugs Cosmetics Act or under the provisions of the N.D.P.S. Act. 11. It is not in dispute that each 100 ml. bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg. of codeine phosphate and the each 100 ml. bottle of Recodex cough syrup contained 182.73 mg. of codeine phosphate. When the Appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evance raised on the ground that the Appellants were illegally detained beyond 24 hours by the police is concerned, the conclusion of the High Court having been based on the satisfaction reached by it, we do not find any scope to interfere with the same. 15. As far as the submission now made for the first time that the Appellants had been in jail for more than the minimum required period is concerned, since neither the Sessions Judge nor the High Court had the opportunity to examine the said claim made by the Appellants, we do not propose to deal with the same in this appeal. 16. When we refer to the decisions relied upon by the Learned Counsel for the Appellants, we find that none of the facts relating to those decisions are parallel to the facts of the present case. Those are all cases which were related to the persons who had valid licences and in the course of their regular business transaction when they were dealing with the pharmaceutical products which contained the prescribed permitted content of narcotic substance and when they were proceeded against for violations, the relief came to be granted in their case. We do not, therefore, find any scope to apply any o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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