The State Of Punjab vs Rakesh Kumar

2. The present appeals are filed by the State having been aggrieved

by the common judgment and order dated 29 th January, 2018

passed by the High Court of Punjab and Haryana, allowing the

applications for suspension of sentence, preferred by the

accused­respondents herein under Section 389 Cr.P.C. and

3 directing to release them on bail, while the Appeals are pending

in the High Court.

3. In order to appreciate the merits of theseappeals, brief facts

which have emerged from the case of the prosecution need to be

noted at the outset. In all these appeals, the accused­

respondents were apprehended with“manufactured drugs” and

convicted by the Trial Court for offences committed under

Section 21 or Section 22 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as

“N.D.P.SAct”). The alleged offences and conviction recorded by

the Trial Court against the respondents are listed below:

CASE NAME OF JUDGMENT S.NO. RECOVERY CONVICTION NO. ACCUSED BY & DATE U/s 22 of Special CRA­ NDPS Act 3500 tablets of Judge, Sri S­840­ Rakesh – 10 years 1. Microlit containing Muktsar SB­ Kumar RI & Diphenoxylate salt Sahib – 2015 Rs.1.00 18.11.2014 lac fine. U/s 22 of 3.900 kgs of Judge, CRA­ NDPS Act Anwar intoxicating powder Special S­227­ – 10 years 2. Khan @ containing Court, SB­ RI & Soni Dexiropropoxyphen Sangrur – 2015 Rs.1.00 e salt 17.11.2014 lac fine. 3. CRA­ Monnu 81.76 gms salt U/s 22 of Special S­ Diphenoxylate NDPS Act Judge,

4 – 10 years 3148­ RI & Ferozepur – SB­ Hydrochloride Rs.1.00 04.06.2015 2015 lac fine. U/s 22 of CRA­ Judge, NDPS Act S­ Diphenoxylate Special – 10 years 4. 4134­ Dharmu powder in Court, RI SB­ commercial quantity Ludhiana – &Rs.1.00 2015 25.05.2015 lac fine. U/s 22 of CRA­ Judge, NDPS Act S­ Special

Gurwinder 70 gms containing – 10 years

5. 5246­ Court, Singh Diphenoxylate salt RI & SB­ Ludhiana – Rs.1.00 2015 10.11.2015 lac fine.

U/s 22 (a) & 2(c) of NDPS Act 19110 mls of – 1 year Judge, CRA­ Mohd. intoxicating liquid RI & Special S­71­ 6. Akhtar @ 10 capsules of Rs.5000/­ Court, SB­ Soni Parvon Spas, 10 fine and Sangrur – 2016 tablets of Euphoria 10 years 09.12.2015 RI & Rs.1.00 lac fine. U/s 22 of Judge, CRA­ NDPS Act Special S­323­ Munish – 10 years 7. 15 Vials of Rexcof Court, SB­ Kumar RI & Bathinda – 2015 Rs.1.00 09.01.2015 lac fine. U/s 22 of Judge, CRA­ NDPS Act Gudawar 60 gms intoxicating Special S­200­ – 10 years 8. Ram @ powder containing Court, SBS SB­ RI & Gabbu Diphenoxylate salt Nagar – 2017 Rs.1.00 09.12.2016 lac fine. 9. CRA­ Baljinder 7500 mls of Corex U/s 22 of Judge,

5 NDPS Act Special S­766­ – 10 years Singh @ syrup containing Court, SB­ RI & Banty Codeine phosphate Sangrur – 2017 Rs.1.00 20.12.2016 lac fine. U/s 22 of CRA­ Judge, NDPS Act S­ Sukhraj 120 bottles of Special – 10 years 10. 1413­ Kaur @ Rexcof containing Court, RI & SB­ Raj Codeine phosphate Sangrur – Rs.1.00 2017 08.03.2017 lac fine. U/s 21 of CRA­ 25 gms Heroin & Judge, NDPS Act S­ Gurpreet 250 gms Special – 10 years 11. 4055­ Singh @ intoxicating powder Court, RI & SB­ Gopi containing Amritsar – Rs.1.00 2016 Alprazolam 06.09.2016 lac fine. U/s 22 of CRA­ Judge, 320 gms NDPS Act S­ Salwinder Special

intoxicating powder – 10 years

12. 2933­ Singh @ Court, Tarn containing RI & SB­ Shinda Taran – Diphenoxylate Rs.1.00 2016 09.08.2016 lac fine.

U/s 22 of Judge, CRA­ NDPS Act Karamjit 10 Vials of Rexcof Special S­985­ – 10 years 13. Singh @ containing Codeine Court, SB­ RI & Karma Phosphate Faridkot – 2017 Rs.1.00 04.01.2017 lac fine. U/s 22 of 300 gms Addl. CRA­ NDPS Act Mandeep intoxicating powder Sessions S­723­ – 10 years 14. Singh @ containing Judge, SB­ RI & Mani Diphenoxylate Amritsar – 2016 Rs.1.00 Hydrochloride 23.12.2015 lac fine. 15. CRA­ Jagmohan 100 gms U/s 22 of Judge, S­ Singh @ intoxicating powder NDPS Act Special 1531­ Mithu containing – 10 years Court, SB­ Diphenoxylate RI & Amritsar – 2016 Hydrochloride Rs.1.00 10.03.2016

6 lac fine. U/s 22 of CRA­ Judge, NDPS Act S­ Nachhatar 60 gms intoxicating Special – 10 years 16. 2398­ Singh @ powder containing Court, Tarn RI & SB­ Sonu Diphenoxylate Taran– Rs.1.00 2017 16.05.2017 lac fine. 50 bottles of Rexcof Judge, Gaurav syrup & 250 tablets U/s 22 of CRA­ Special Bajaj (the of Carisona from NDPS Act S­ Court, other Gaurav Bajaj 45 – 10 years 17. 1972­ Fazilka– appellant bottles of Rexcof RI & SB­ 17.03.2017 Manpreet syrup & 200 tablets Rs.1.00 2017 Singh) of Carisona from lac fine. Manpreet Singh U/s 22 of CRA­ 19 vials of Rexcof, Judge, NDPS Act S­ 1200 tablets of Special Gurpreet – 10 years 18. 3921­ Pinotil and 450 Court, Singh RI & SB­ tablets of Bathinda – Rs.1.00 2013 Alprazolam 24.10.2013 lac fine. U/s 22 of CRA­ Judge, NDPS Act S­ 12 vials of Rexcof Special Jaspal – 10 years 19. 1529­ containing codeine Court, Singh RI & SB­ Phosphate Sangrur – Rs.1.00 2017 07.03.2017 lac fine. 1300 tablets U/s 22 of Sanjiv weighing 101, 400 Judge, CRA­ NDPS Act Kumar & gms from Sanjiv Special S­750­ – 10 years 20. Paramjit Kumar; 400 tablets Court­III, SB­ RI & Singh @ weighing 31.200 Ferozepur – 2014 Rs.1.00 Pamma gms from Paramjit 27.01.2014 lac fine. Singh @ Pamma U/s 22 of CRA­ Judge, NDPS Act S­ Special Akash 3500 mls containing – 10 years 21. 4894­ Court, Kumar Codeine Phosphate RI & SB­ Sangrur – Rs.1.00 2015 16.10.2015 lac fine.

7 U/s 22of CRA­ Judge, NDPS Act S­ 20 vials of Rexcof Special Satnam – 10 years 22. 2574­ containing Court, Singh RI & SB­ Dextropropoxyphene Faridkot – Rs.1.00 2017 06.07.2017 lac fine. U/s 22 of CRA­ Judge, 2000 tablets NDPS Act S­ Amit Special containing – 10 years 23. 1616­ Kumar Court, Diphenoxylate RI & SB­ Mehta Patiala – Hydrochloride Rs.1.00 2017 01.03.2017 lac fine. U/s 22 of Addl. CRA­ NDPS Act Gurjant 60 gms intoxicating Sessions S­185­ – 10 years 24. Singh @ powder containing Judge, Tarn SB­ RI & Janta Diphenoxylate Taran – 2017 Rs.1.00 20.10.2016 lac fine. 100 tablets marka Alprazolam in 5 CRM­ strips, 12 injections U/s Judge, Gurpreet M­ Buprenorphine 2 22/61/85 Special 25. Singh @ 23054­ ml, 2 bottles of of NDPS Court, Tuli 2017 injections Avil 10 ml Act Jalandhar & 116 gms intoxicant powder

4. Aggrieved by the Judgment and conviction by the respective Trial

Courts, the accused­respondents approached the High Court

through various appeals. The accused­respondents, during the

pendency of the appeals, preferred an application seeking

suspension of sentence. Since a common question of law was

involved in the above appeals, the High Court heard the matters

8 together and passed a common order dated 29.01.2018,

allowing the applications for suspension of sentence preferred

by the accused­respondents. The High Court observed that

manufactured drugs, be it containing narcotic drugs or

psychotropic substances, if manufactured by a manufacturer,

must be tried, if violation is there, under the Drugs and

Cosmetics Act and not under the NDPS Act, except those in

loose form by way of powder, liquid etc. Dissatisfied by the

above order dated 29.01.2018, the State has preferred the

present appeals.

5. The counsel on behalf of the appellant­State, while criticizing the

impugned order passed by the High Court, drew our attention

to the relevant provisions of the N.D.P.S Act and Drugs and

Cosmetics Act, 1940, and submitted that, the N.D.P.S Act, itself

does not bar the application of the Drugs and Cosmetics Act,

1940. Further, the counsel also argued that, the impugned

judgment is in gross violation of the decision rendered in

Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal)

953, by the Division Bench of the Punjab and Haryana High

Court. The counsel also relied upon the decision rendered by

9 this Court in Union of India v. Sanjeev V. Deshpande (2014)

13 SCC 1, wherein it was clearly held that dealing in narcotic

drugs and psychotropic substances is permissible only if it is

for medical or scientific purposes. But even the usage for

medical and scientific purposes is not restriction free, as it is

subject to rules under the N.D.P.S Act.

6. On the contrary, the counsel on behalf of the accused­

respondents has supported the reasoning of the High Court

while stating that it is very farfetched to presume that, any

person who is apprehended with bulk quantity of manufactured

drug, without having a license for the same, has committed an

offence which is liable to be prosecuted under the N.D.P.S Act.

The counsel further submitted that, the High Court was correct

to conclude that, it can be considered as a violation of the

provisions of the Drugs and Cosmetics Act, 1940. Therefore,

there was no error in granting the relief of suspension of

sentence, considering that the appeals are not going to be

adjudicated in the near future.

7. Heard the learned counsel for both the parties.

8. At the outset it is essential to note the objectives of the two

10 legislations before us, i.e., the Drugs and Cosmetics Act, 1940

and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was

enacted to specifically prevent sub­standard drugs and to

maintain high standards of medical treatment. (See Chimanlal

Jagjivandas Sheth v. State of Maharashtra AIR 1963 SC

665) The Drugs and Cosmetics Act,1940 was mainly intended

to curtail the menace of adulteration of drugs and also of

production, manufacture, distribution and sale of spurious and

sub­standard drugs. On the other hand, the N.D.P.S Act is a

special law enacted by the Parliament with an object to control

and regulate the operations relating to narcotic drugs and

psychotropic substances. After analyzing the objectives of both

the Acts, we can safely conclude that while the Drugs and

Cosmetics Act deals with drugs which are intended to be used

for therapeutic or medicinal usage, on the other hand the

N.D.P.S Act intends to curb and penalize the usage of drugs

which are usedfor intoxication or for getting a stimulant effect.

9. At this juncture, it is also pertinent to note the relevant

provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is

the prohibitory clause whose violation would lead to penal

11 consequence:

Section 8. Prohibition of certain operations. ­No person shall­

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter­State, export inter­ State, import into India, export from India or transship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization:

Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter­State and export inter State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.

10. Further, Section 21 provides for punishment for contraventions in

12 relation to manufactured drugs and preparations and Section 22

provides for punishment for contraventions in relation to

psychotropic substances. Both the above provisions provide for

the imposition of rigorous imprisonment for a term which shall

not be less than ten years but which may extend to twenty years,

and the imposition of a fine which shall not be less than one lakh

rupees but which may be extended to two lakh rupees, if the

recovered substance amounts to commercial quantity. However,

the proviso appended thereto empowers the Court, with a

discretionary power to impose a fine exceeding two lakh rupees

for reasons to be recorded in the judgment.

11. In the present case, the accused­respondents were found in bulk

possession of manufactured drugs without any valid

authorization. The counsel on behalf of the appellant­State has

extensively stressed that the actions of the accused­Respondents

amounts to clear violation of Section 8 of the N.D.P.S Act as it

clearly prohibits possession of narcotic substances except for

medicinal or scientific purposes. In furtherance of the same, the

counsel on behalf of the appellant­State has put emphasis on the

judgment rendered by this court in the case of Union of India

13 vs. Sanjeev V. Deshpande (supra), wherein it was held that:

“25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created Under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.

26.The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances…” (emphasis supplied)

12. In the present appeals before us, the trial courts after analyzing

the evidence placed before them, held the accused Respondents

guilty beyond reasonable doubt and convicted them for offences

committed under Section 21 and Section 22 of the N.D.P.S Act.

14

13. The counsels for the accused­respondents have strongly

supported the judgment of the High Court wherein it was held

that, since the present matters deal with “manufactured drugs”

the present respondents should be tried for the violation of

provisions of Drugs and Cosmetics Act, 1940.

14. However, we are unable to agree on the conclusion reached by the

High Court for reasons stated further. First, we note that Section

80 of the N.D.P.S Act, clearly lays down that application of the

Drugs and Cosmetics Act is not barred, and provisions of

N.D.P.S. Act can be applicable in addition to that of the

provisions of the Drugs and Cosmetics Act. The statute further

clarifies that the provisions of the N.D.P.S Act are not in

derogation of the Drugs and Cosmetics Act, 1940. This Court in

the case of Union of India vs. Sanjeev V. Deshpande (supra),

has held that,

“35. …essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject.

Further the provisions of the Act operate in addition to the provisions of 1940 Act.”

15 (emphasis supplied)

15. The aforesaid decision further clarifies that, the N.D.P.S Act,

should not be read in exclusion to Drugs and Cosmetics Act,

1940. Additionally, it is the prerogative of the State to prosecute

the offender in accordance with law. In the present case, since the

action of the accused­Respondents amounted to a prima­facie

violation of Section 8 of the N.D.P.S Act, they were charged under

Section 22 of the N.D.P.S Act.

16. In light of above observations, we find that decision rendered by

the High Court holding that the accused­respondents must be

tried under the Drugs and Cosmetics Act, 1940 instead of the

N.D.P.S Act, as they were found in possession of the

“manufactured drugs”, does not hold good in law. Further, in the

present case, the accused­respondents had approached the High

Court seeking suspension of sentence. However, in granting the

aforesaid relief, the High Court erroneously made observations on

the merits of the case while the appeals were still pending before

it.

17. Considering the facts and circumstances of the present case and

16 the gravity of offence alleged against the accused­respondents,

the order of the High Court directing suspension of sentence and

grant of bail is clearly unsustainable in law and the same is liable

to be set aside.

18. Accordingly the impugned order passed by the High Court is

hereby set aside and the concerned authorities are directed to

take the accused­respondents herein into custody forthwith.

19. Lastly, the counsels for respondents in Appeals arising out of SLP

(Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specifically

pleaded that the respondents have already undergone a

considerable period under incarceration. In light of the same, we

request the High Court to expedite the hearings and dispose of

the appeals accordingly. It is needless to observe that the

observations made during the course of this order are only for

deciding these appeals.

20. The appeals stand allowed in aforesaid terms. As a sequel

pending applications, if any shall also stand disposed of.

17 ……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar)

……………………………..J. (M.R. Shah)

NEW DELHI, DECEMBER 03, 2018

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