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TMI Blog2020 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. Reply to the petition has been filed by the respondent. Written submissions on behalf of either side have also been submitted, perused and considered. 3. The allegations that have been made in the Sessions Case No.374/2018 filed by the respondent are to the effect that an information had been received that a person named Harish Chander proprietor of M/s Shiv Medicos (the co-accused presently in judicial custody) at 1706/8, First Floor, Milap Bhawan, Bhagirath Palace, Delhi-06 was selling narcotics and psychotropic medicines illegally at his shop and on search of his shop being conducted, the narcotics and psychotropic medicines were recovered in a huge quantity as detailed in the complaint. 4. The said co-accused Harish Chander as per the complaint was not able to produce any purchase or sale documents for these narcotics and psychotropic medicines which were thus seized under Rule 65 of the Drugs and Cosmetics Rules, 1945 for violation of Rule 65A of the NDPS Act, 1985. The medicines so seized, were to the effect:- "i. Alprazolam-2,06,125 tablets ii. Pentazocine inj. - 3,194 ampules iii. Nitrazepam tablet -20,400 tablets. iv. Tramadol- 1,28,880 tablets & caps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase of the narcotics and psychotropic medicines and that he had not maintained any sale record of the narcotics and psychotropic substances. 7. The complaint however states to the effect that the sales made by M/s Hariwin Pharma were all made on the basis of the bills in terms of the provisions of Rule 65 of the Drugs and Cosmetics Rules, 1945 including to M/s City Enterprises run by the petitioner herein. 8. As per the averments made in the complaint, in as much as the petitioner had failed to produce the records of sale/ purchase of the seized medicines as mandated under Rule 65 of the Drugs and Cosmetics Rules, 1945, he had thus, violated Rule 65A of the NDPS Rules, 1985. 9. The petitioner was arrested on 30.07.2018 at about 16.30 hours for violation of Sections 8, 21, 22 & 29 of the NDPS Act, 1985 and at the time of his arrest, two mobile phones i.e. I-phone A1530 with mobile number 9728259445 and a Nokia phone TA-1034 with mobile number 8571823948 found in his possession, were recovered. 10. The averments made in the complaint further indicate that the co-accused Harish Chander had stated in his statement under Section 67 of the NDPS Act, 1985 that he had purchased and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es proprietors of M/s Ganesh Medicos, M/s Marcus Laboratones, M/s Maharaja Traders and M/s Mahadev Agencies and that a sum of Rs. 1.8 Crores in cash was found deposited into the account of the petitioner in five months prior to the complaint. It was thus, contended by the CBN that this indicated that the petitioner was involved in the illegal sales of Narcotics and Psychotropic substances. 14. The complaint vide paragraph 30 thereof specifies the seizures effected of the Narcotics and Psychotropic medicines which had been sold by the petitioner herein to Sh. Harish Chander proprietor of M/s Shiv Medicos in violation of Rule 65 of the Drugs and Cosmetics Rules, 1945 and of consequential violation of conditions of Rule 65A of the NDPS Rules, 1985 and consequentially thereof, of having committed offences punishable under Sections 8, 21, 22 and 29 of the NDPS Act, 1985 in relation to the following medicines:- "(i) Total contents of seized 2,06,125 Alprazolam tablets in different composition comes to 95.150 Gram on calculating the same. (ii) Total contents of seized 3214 Pentazocine Injection of different composition comes to 3.214 Kg on calculating the same. (iii) Total contents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in custody w.e.f. 30.07.2018 for more than one year and five months and no recoveries of any incriminating medicines have been effected from his commercial premises nor from his residence. 17. The petitioner has further submitted that the injections of Pentazocine, a psychotropic substance sold by the petitioner as claimed by the claimant through its reply to the bail application is only of 300 injections containing 300 gms of the psychotropic substance and as per Government notification S.O.1055 (E) dated 19.10.2001, the commercial quantity prescribed of Pentazocine is 500 gms and that thus, the embargo under Section 37 of the NDPS Act, 1985 would not apply in relation to the said psychotropic substance. Furthermore, it has been submitted on behalf of the petitioner that there is no averment in the complaint of the respondent that Pentazocine was sold by the petitioner. 18. Inter alia it has been submitted on behalf of the petitioner that as per the reply submitted by the respondent itself, the petitioner had dealt with the drug- Tramadol only on 01.02.2018, 28.11.2017, 02.04.2018 as purchased by the petitioner from M/s Hariwin Pharma and that the drug- Tramadol did not fall wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are to be dispensed on prescription for Registered Medical Practitioners only and in as much as, the petitioner in the instant case has sold the codeine cough syrups only to an authorized dealer, the penal provisions of the NDPS Act, 1985 cannot be held to have been attracted in the instant case. Inter alia it has been submitted on behalf of the petitioner that he has a wife and two daughters at the verge of a financial breakdown and that he has no previous criminal antecedents and had merely sold the medicines to the authorized dealer, wholesaler or retailer. 21. The Central Bureau of Narcotics vide its reply has vehemently opposed the prayer made by the petitioner seeking the grant of bail submitting to the effect that the embargo under Section 37 of the NDPS Act, 1985 applies wholly in the instant case and that it is applicable to all conspirators acting in furtherance of their common object. It has been submitted categorically by the respondent that the petitioner had illegally sold 406460 bottles of 100 ml each of codeine based syrup containing 40646 Kgs of Narcotic Drug i.e. codeine in violation of the provisions of Section 8(c) read with Sections 21 and 29 of the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act." 24. The respondent has further submitted that the petitioner has accepted through his voluntary statement recorded under Section 67 of the NDPS Act, 1985 that he did not have any record of the sale/purchase of the narcotics and psychotropic medicines to Sh. Harish Chander proprietor of M/s Shiv Medicos and likewise Sh. Harish Chander too had accepted that he purchased the said narcotics and psychotropic medicines illegally from the petitioner. Reliance has thus, been placed on behalf of the respondent on the verdicts in "Sayeed Abu Ala Vs. Narcotic Control Bureau" in Bail Appln. No.689/2007 dated 07.08.2008 to contend to the effect that the statements made by any one of the conspirators in furtherance of the common object, is admissible against all. 25. It has been submitted further on behalf of the respondent that Section 80 of the NDPS Act, 1985, which reads as under:- "80. Application of the Drugs and Cosmetics Act, 1940 not barred.--The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 kgs of a psychotropic substance and 300 injections of Pentazocine (containing 300 gram Psychotropic Substance) in violation of the provisions of Rule 65 of Drug and Cosmetic Rules and that there has thus, been a violation of the provisions of Rule 65A of NDPS Rules, 1985. 28. The respondent has further submitted that the petitioner has also purchased a huge amount of narcotics and psychotropic Drugs for which he has made payments vide RTGS/ cheque to firms M/s Ganesh Medicos, Maharaja Traders, Marcus Laboratories and Mahadev Agenies but he has not produced any purchase/ sale documents or the ledger accounts and that there was a cash deposit of Rs. 1.80 Crore made in the bank account of M/s City Enterprises of which the petitioner herein is the proprietor which amount was deposited from the period 01.03.2018 to 10.07.2018 and it was thus contended on behalf of the respondent that the fact of huge cash deposit in the bank account coupled with the fact of non maintenance of sale and purchase records clearly indicated that the petitioner's dealings were not above board andrather that he was involved in the illegal business. It was submitted through the written synopsis dated 13.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance was placed on behalf of the petitioner on the verdict of the Hon'ble High Court of Allahabad in "Ashok Kumar Vs. Union of India and Ors." 2014 SCC OnLine All 16411 to contend that in that case, possession of phensedyl cough syrup containing codeine within the prescribed quantity with licence was held not sufficient to invite the penalties under the NDPS Act, 1985 and that phensedyl cough syrup was required to be considered as a drug under the Drugs and Cosmetics Act. In relation thereto, the Central Bureau of Narcotics has contended as adverted to hereinabove that cough syrup containing codeine would not fall under the definition of a Narcotic Drug only if the cough syrup was actually sold or dealt with for a therapeutic use and once there was evidence to suggest that the cough syrup was diverted for abuse purpose and not for a therapeutic use, then the provisions of the NDPS Act, 1985 would come into play and the whole quantity of the narcotic drug is to be calculated for the purpose of proceedings under the NDPS Act, 1985. 32. In this context, the spirit of the verdict of the Hon'ble Supreme Court in "Mohd. Sahabuddin and Another Vs. State of Assam" (2012) 13 SCC 491 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising out of SLP (CRL) No.4762 of 2018) with CRL.A. No.1514/2018 (arising out of SLP (CRL) No.4816 of 2018), CRL.A. No.1515/2018 (arising out of SLP (CRL) No.4817 of 2018), CRL.A. No.1517/2018 (arising out of SLP (CRL) No.4869 of 2018), CRL.A. No.1516/2018 (arising out of SLP (CRL) No.4818 of 2018), CRL.A. No.1513/2018 (arising out of SLP (CRL) No.4796 of 2018), CRL.A. No.1518/2018 (arising out of SLP (CRL) No.4881 of 2018), CRL.A. No.1521/2018 (arising out of SLP (CRL) No.5032 of 2018), CRL.A. No.1530/2018 (arising out of SLP (CRL) No.5897 of 2018), CRL.A. No.1520/2018 (arising out of SLP (CRL) No.4968 of 2018), CRL.A. No.1526/2018 (arising out of SLP (CRL) No.5893 of 2018), CRL.A. No.1525/2018 (arising out of SLP (CRL) No.5892 of 2018), CRL.A. No.1519/2018 (arising out of SLP (CRL) No.4953 of 2018), CRL.A. No.1528/2018 (arising out of SLP (CRL) No.5895 of 2018), CRL.A. No.1523/2018 (arising out of SLP (CRL) No.5886 of 2018), CRL.A. No.1527/2018 (arising out of SLP (CRL) No.5894 of 2018), CRL.A. No.1524/2018 (arising out of SLP (CRL) No.5891 of 2018), CRL.A. No.1529/2018 (arising out of SLP (CRL) No.5896 of 2018), CRL.A. No.1522/2018 (arising out of SLP (CRL) No.5877 of 2018), CRL ..... X X X X Extracts X X X X X X X X Extracts X X X X
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