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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 ..... taining two big packets wrapped with brown tape. The first packet was opened and it was found that it contained 55 bottles of Phensedyl. The second packet was found containing 55 bottles of Phensedyl. d) The bottles recovered from the first packet and second packet were tagged separately in corrugated boxes and given mark P-1 and P-2. All the recovered bottles were found containing Codeine Phosphate which is a manufactured drug under the NDPS Act. e) The samples which were drawn were sent to the laboratory and vide report dated 01.10.2019 all the samples were opined positive for Codeine Phosphate. f) The investigation reveals that each bottle weighing 100 grams and each of the bottle had Codeine concentration of 0.17% which translates to about 18.7 grams of concentrated codeine in total 110 bottles. g) A Complaint Case No.62/2020 was filed before the learned Special Judge (NDPS) Dwarka Courts. Charges have been framed against the petitioner for offences under Section 21 (c) and 23 (c) of the NDPS Act for possession of narcotics substances. 3. Heard Mr. Amjad Khan, learned counsel appearing for the petitioner and Mr. Vishal Chadha, learned SPP for Customs and perused the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is attracted or not. Section 37 of the NDPS Act reads as under:- 37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 10. To determine as to whether the petitioner was in actual possession of commercial quantity of Codeine, it is relevant to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment? 12.3. Does the Act permit the Central Government to resort to such dispensation? 12.4. Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug? 12.5. Whether Section 21 of the Act is a stand-alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug?" 13. The three Judge Bench was constituted and the Supreme Court in Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382 has observed as under:- ******* "8.4. Even considering the definition of "manufacture", "manufactured drug" and the "preparation" conjointly, the total weight of such "manufactured drug" or "preparation", including the neutral material is required to be considered while determining small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had a small quantity of Codeine. The decision of the Supreme Court in Hira Singh (supra) was cited and considered by this Court in Iqbal Singh(supra) and was distinguished. This Court held that in the context of Codeine used in cough syrup i.e. formulations which have a miniscule percentage/quantity of an offending substance cannot be treated at par with other illicit substances like heroin. 15. For this purpose, para 21 to 25 of the said judgment as reproduced as under:- "21. It is relevant to refer to paragraph 8.3 of the said judgment, which indicates the rationale for doing so and the same is set out below: "8.3 At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the NDPS Act or not. This is borne out by clause (xi) of section 2 of the NDPS Act which empowers the Central Government to notify a narcotic substance or preparation either to be a manufactured drug or to not be a manufactured drug; 5.4 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 through the backdoor. i) E.g.: Entry 35 "Codeine‟ in the list of manufactured drugs vide Notification S.O. 826(E) dated 14/11/1985, Notification S.O. 40(E) dated 29/02/1993 and Notification S.O. 1431(E) dated 21.6.2011 (hereinafter collectively referred to as "notification on manufactured drugs"). ii) Similar exemptions are contained at Entries at SI. No. 35, 36, 37, 48, 70, 76, 83 and 87 of the notification on manufactured drugs." 24. In the aforesaid context, it is relevant to refer to paragraph 8.4 of the judgment, where the court clarified as under: "8.4. Even considering the definition of "manufacture", "manufactured drug" and the "preparation" conjointly, the total weight of such "manufactured drug" or "prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. A person who is in habit of dealing ganja and is caught with slightly less than 1 kg of ganja (which obviously cannot be for self use) will face significantly lesser punishment. 20. Even if the person is using a codeine cough syrup for illicit reasons, of obtaining a 'high', possessing a single bottle of codeine cough syrup will ensure that such user is treated on par with a person who possesses even 19 kilograms of ganja. Hypothetically, a family where there are a number of people having chronic cough problem procures 10 bottles of cough syrup before embarking on a trip to ensure adequate supply of the cough syrup, would be deemed to be in possession of a commercial quantity of Codeine, and would face a minimum of 10 years imprisonment. This obviously was not and could not be the intention of the legislature or the true meaning of the judgment of the Supreme Court in Hira Singh's case. 21. Be that as it may, para 8.4 and para 10(II) of the judgment of the Supreme Court in Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382 does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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