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TMI Blog2021 (6) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 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. - BAIL APPLN. 1136/2021 - - - Dated:- 25-6-2021 - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD Petitioner: Mr. Amjad Khan, Advocate Respondent: Mr. Vishal Chadha, SPP ORDER SUBRAMONIUM PRASAD, J. 1. This is a petition under Section 439 CrPC for grant of regular bail in Complaint Case No.62/2020 registered at Police Station Customs (IGI Airport, Delhi) under Section 21(c) and 23 (c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. The facts in brief leading to the present petition are as follows:- a) The petitioner was to travel Saudi Arabia by flight No.SV761/04. On suspicion of the security staff, he was handed over to Saudi A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yrup and therefore held that it was a commercial quantity and since the petitioner has committed an offence involving commercial quantity, the bail application was rejected. The petitioner therefore approached this Court by filing instant bail application. 6. Mr. Vishal Chadha, learned SPP for Customs relied on the judgment of the Supreme Court in Md. Sahabuddin v. State of Assam reported as (2012) 13 SCC 491. 7. Mr. Amjad Khan, learned counsel for the petitioner contends that the judgment of Md. Sahabuddin (supra) does not apply for the reason that the total quantity in the said case was 34,700 bottles of Phensedyl cough syrup and 10200 bottles of Recodex cough syrup unlike the present case where only 110 bottles were recovered. He places reliance on the judgment of this Court in BAIL APPLN.645/2020 dated 31.07.2020 titled as Iqbal Singh v. State wherein this Court has granted bail in similar circumstances. 8. Per contra, Mr. Vishal Chadha, learned SPP for Customs places reliance on the judgment of the Supreme Court in Md. Sahabuddin (supra) and Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382. He contends that the judgment of Hira Singh (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r deciding whether the recovery is of commercial quantity of the narcotic drug or psychotropic substance would be considered. The weight of the neutral substance, in any mixture containing a narcotic substance would be ignored was to be excluded. After the judgment of the Supreme Court in E. Michael Raj (supra) Note 4 was inserted in the S.O. 1055 (E) dated 19th October, 2001. Note 4 is extracted below: Note 4: The quantities shown in column 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substance of the particular drug in dosage form or isomers, esters, ethers and salts or these drugs, including salts or esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. 12. Prima facie this note seems to suggest that the weight of the neutral material must also be taken into account while determining whether a person is in possession of a commercial quantity of a narcotic substance. The Supreme Court in Hira Singh v. Union of India reported as (2017) 8 SCC 162 referred the following questions to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law; (II) 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 the Narcotic Drugs or Psychotropic Substances; (III) Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001; (IV) Challenge to Notification dated 18.11.2009 adding Note 4 to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed. (emphasis supplied) 14. This decision was consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for commercial quantity . Certainly that would not have been the intention of the legislature. 22. It is apparent from the above that the court was considering a case where illicit substances are sold in mixtures containing neutral substances or substances which may have the effect of enhancing the effect of the offending substance or facilitate its abuse. The court was not concerned with a non-offending substance or preparation with bifacial qualities, which may have miniscule quantities of any offending substance. The litmus test would be as to how the substance is known in common parlance and dealt with by persons in trade. Is it manufactured, distributed, purchased and sold as an illicit substance, which is one of the ingredients of it, or is it known and dealt with as a separate product. 23. It is imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actured but falls outside the scope of the definition of a manufactured drug under the NDPS Act on account of the component of offending material being below the prescribed threshold, cannot be construed as a manufactured drug by dissecting its ingredients and considering them in isolation. (emphasis supplied) 16. A reading of the judgment in Iqbal Singh (supra) therefore shows that this Court has created a distinction between illicit substances which are sold in mixtures containing neutral substances or which may have the effect of enhancing the effect of the offending substance or facilitate its abuse and a non offending substance or preparation with bifacial qualities which may have the miniscule quantities of a substance which are also used for medicinal purposes and are available in medical shops across country. 17. Codeine is a Schedule H-1 Drug, under the Drugs and Cosmetics Act, 1940, and is not to be sold without a valid prescription. Any Codeine based cough syrup ideally should not be available without a prescription. The reality however is different. This Court can take judicial notice of the fact that any person desirous of obtaining a Codeine based cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are required to be considered by a larger Bench of this Court : 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? 23. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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