Vinod Kumar vs State Of Punjab

CRM M-9327 of 2012 & 20 connected cases 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARAYANA AT CHANDIGARH

Date of Decision: June 01, 2012

(1) Crl. Misc. No.M-9327 of 2012

Vinod Kumar .....Petitioner

Versus

State of Punjab ....Respondent

(2) Crl. Misc. No.M-14060 of 2012

Sunny Bajaj .....Petitioner

Versus

State of Punjab ....Respondent

(3) Crl. Misc. No.M-8872 of 2012

Gurjant Singh .....Petitioner

Versus

State of Punjab ....Respondent

(4) Crl. Misc. No.M-13970 of 2012

Dinesh Kumar @ Shinder .....Petitioner

Versus

State of Punjab ....Respondent

(5) Crl. Misc. No.M-5656 of 2012

Bhupinder Singh @ Doctor .....Petitioner

Versus

State of Punjab ....Respondent

(6) Crl. Misc. No.M-2479 of 2012

Raghbir Singh .....Petitioner

Versus

State of Punjab ....Respondent CRM M-9327 of 2012 & 20 connected cases 2

(7) Crl. Misc. No.M-11082 of 2012

Chandan Kumar .....Petitioner

Versus

The State of Punjab ....Respondent

(8) Crl. Misc. No.M-9025 of 2012

Dharamvir Saini @ Kaka .....Petitioner

Versus

State of Punjab ....Respondent

(9) Crl. Misc. No.M-4967 of 2012

Pritpal Singh .....Petitioner

Versus

State of Punjab ....Respondent

(10) Crl. Misc. No.M-3506 of 2012

Mohan Chand @ Mohan Singh .....Petitioner

Versus

State of Punjab ....Respondent

(11) Crl. Misc. No.M-11121 of 2012

Harinder Rani .....Petitioner

Versus

State of Punjab ....Respondent

(12) Crl. Misc. No.M-38827 of 2011

Gurwinder Singh .....Petitioner

Versus

State of Punjab ....Respondent

(13) Crl. Misc. No.M-1463 of 2012

Mohd. Saleem .....Petitioner

Versus CRM M-9327 of 2012 & 20 connected cases 3

State of Punjab ....Respondent

(14) Crl. Misc. No.M-30269 of 2011

Sanjiv Kumar .....Petitioner

Versus

State of Punjab ....Respondent

(15) Crl. Misc. No.M-1874 of 2012

Sunny alias Sanna .....Petitioner

Versus

State of Punjab ....Respondent

(16) Crl. Misc. No.M-3749 of 2012

Arun Kapoor .....Petitioner

Versus

State of Punjab ....Respondent

(17) Crl. Misc. No.M-37270 of 2011

Piare Lal .....Petitioner

Versus

State of Punjab ....Respondent

(18) Crl. Misc. No.M-38232 of 2011

Lachhman Singh .....Petitioner

Versus

State of Punjab ....Respondent

(19) Crl. Misc. No.M-14836 of 2012

Amit Kumar alias Meetu .....Petitioner

Versus

The State of Punjab ....Respondent

(20) Crl. Misc. No.M-12239 of 2012

Satpal .....Petitioner CRM M-9327 of 2012 & 20 connected cases 4

Versus

State of Punjab ....Respondent

(21) Crl. Misc. No.M-7195 of 2012

Sethi Lal .....Petitioner

Versus

State of Punjab ....Respondent

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

1) Whether Reporters of the local papers may be allowed to see the judgment ?.

2) To be referred to the Reporters or not ?.

3) Whether the judgment should be reported in the Digest ?

Present: Mr. Akshay Jain, Advocate in CRM M-9327 of 2012 Mr. Preetinder S. Ahluwalia, Advocate in CRM M-14060 of 2012

Mr. D.S. Pheruman, Advocate in CRM M-No.8872 of 2012

Mr. Ritesh Pandey, Advocate in CRM M- No.13970 of 2012

Mr. Kewal Singh, Advocate in CRM M No.5656 of 2012

Mr. Satnam Singh Gill, Advocate in CRM M No.2479 of 2012

Mr. B.S. Sidhu, Advocate in CRM M.11082 of 2012

Mr. Rakesh Bhatia, Advocate in CRM M 9025 of 2012

Mr. V.K. Sandhir, Advocate in CRM M-4967 of 2012

Mr. Gourave Bhayyia Gilhotra, Advocate in CRM M.3506 of 2012

Mr. Narinder S. Lucky, Advocate in CRM M 11121 of 2012

Mr. L.S. Sidhu, Advocate in CRM M-38827 of 2011

Ms. Monika Goyal, Advocate in CRM M - 1463 of 2012

Mr. PKS Phoolka, Advocate in CRM M-30269 of 2011 CRM M-9327 of 2012 & 20 connected cases 5

Mr. Vipin Mahajan, Advocate in CRM M -1874 of 2012 and CRM M 12239 of 2012

Mr. Puneet Sharma, Advocate in CRM M-3749 of 20129

Mr. Amaninder Preet, Advocate in CRM M 37270 of 2011

Mr. P.S. Dhaliwal, Advocate in CRM M 38232 of 2011

Mr. Vijay Rana, Advocate in CRM M 14836 of 2012

Mr. K.S. Kahlon, Advocate in CRM M -7195 of 2012

Mr. J S Bhullar, AAG, Punjab

Mr. Sukant Gupta, Advocate, Amicus Curie

****

PARAMJEET SINGH, J.

This judgment shall dispose of 21 pending trial bail

applications filed under Section 439 of the Code of Criminal

Procedure, 1973 (for short 'Cr.P.C.'). These cases are being decided

by this common judgment as in all the cases the arguments advanced

by the respective counsel are on same footing. The brief details and

facts of each case are mentioned below:

(1) Crl. Misc. No.M-9327 of 2012 titled as Vinod Kumar Vs.

State of Punjab arising out of FIR No.8 dated 13.01.2012 under

Sections 22/61/85 of Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short in the 'NDPS Act') registered at Police Station

Division No.3, Jalandhar.

The allegations in the FIR are to the effect that police

party had apprehended the petitioner who was on an Eterno Scooter

bearing Regd. No.PB-08 AY-5737 and was alleged to be in possession

of 50 packets of Spasmo Proxyvon, each packet containing 6 strips,

each stripe contained 24 capsules, total 7200 intoxicating capusules,

15 packets of Avl and each packet containing 24 injections total 360 CRM M-9327 of 2012 & 20 connected cases 6

intoxicating injections and 6 packets Norgesic each packet contained

5 injections, total 30 intoxicating injections and 50 bottles of Redicoff

without any license or permit. The samples were taken and converted

into parcels and after seal sent for chemical examination.

As per chemical examination report (Annexure P-5) the

acetaminophen, Dextropropoxyphene Napsilate and Dicyclomine &

Chloride were found present in the alleged recovery and Assay of

Dicycclomine HCL and Dextropropoxyphine Napsilate as

Destropropoxyphone Napsilate is reported to 104.06 mg/cap and

assay of paracetamol reported to be 377.78 mg/cap.

As per chemical examination report (Annexure P-6) the

average net volume is reported to be 10 ml/vial and pheniramine

maleate is reported to be 21.38 mg/ml. As per Annexure P-7, the

average net volume 2 ML/ampoule and Assay of Buprenorphine HCL

as Buprenorphine is reported to be 0.27 mg/ml. As per Annexure P-8,

the average net volume 100 ml/ampoule and assay of

chlorpheniramine maleate 3.63 mg/5 ml and assay of codeine

phosphate is reported to be 10.53 mg/5 ml.

(2) Crl. Misc. No.M-14060 of 2012 titled as Sunny Bajaj

Vs. State of Punjab arising out of FIR No.18 dated 04.02.2012 under

Sections 22 of the NDPS Act registered at Police Station Division No.1,

Jalandhar. The allegations in this FIR is to the effect that on seeing

police party, petitioner perplexed and tried to turn back but had been

apprehended by the police party, who was alleged to be in possession

of 99 strips, each stripe having 24 capsules Mark SPASMO

PROXYVON, total 2376 SPASMO Proxyvon capsules without any CRM M-9327 of 2012 & 20 connected cases 7

license or permit. The samples were taken and converted into parcels

and after seal sent for chemical examination.

As per chemical report (Annexure P-3), the average net

volume is reported to be 0.660 gm wt/cap and 0.551 gm Fill/cap and

assay of Paracetamol is reported to be 390 mg/ cap and assay of

dextropropoxyphene napsylate and dicyclomine HCL as

Dextropropoxyphene Napsylate is reported to be 109.54 mg/cap.

(3) Crl. Misc. No.M-8872 of 2012 titled as Gurjant Singh

Vs. State of Punjab arising out of FIR No.68 dated 19.11.2011 under

Sections 21/61/85 NDPS Act, registered at Police Station Mehta,

Tehsil Baba Bakala, District Amritsar.

As per FIR, the petitioner was coming on Pulsur 150 black

motorcycle from village Khuhat wind Musalmana on the bank on

Canal towards G.T. Road and on seeing police party he thrown the

polythene bag which was alleged to be handing on the right side

handle of the motor cycle , he tried to take back motor cycle but

apprehended by the police party. On search, capsule Propoxphen 5

packets containing 100 capsule in each packet were recovered from

the petitioner. All the capsules taken from the different bags and

mixed up by the police and thereafter 10 capsules were taken out as

sample and remaining 490 along with empty packets put in plastic

bag. 33 packets of tablets of Anjtil were also recovered. Each packet

contained 100 tablet and thus comes to 3300 tablets and the same

were taken out from each packet and mixed and thereafter sample of

10 tablets were taken and remaining 3290 tablets along with empty

bags were put in a plastic bag. Both the packets were converted into CRM M-9327 of 2012 & 20 connected cases 8

separate parcels and Pulsor motor cycle 150 black colour without

number were also taken into possession through recovery memo.

As per chemical report (Annexure P-2), the average net

volume of Dextropropoxyphene & Chloride is reported to be 0.338 gm

per cap and average fill/cap is reported to be 0.0271 gm. The

disintegration period is reported to be 6 min 12 sec and net volume of

assay of destropropoxyphene HCL is reported to be 60.14 mg/cap. As

per Annexure P-3, the average wt/cap is reported to be 0.073 gm,

disintegration period is 1 min 12 sec and assay of diphenoxylate HCL

is reported to be 2.41 mg/tab.

(4) Crl. Misc. No.M-13970 of 2012 titled as Dinesh Kumar

@ Shinder Vs. State of Punjab arising out of FIR No.8 dated

11.01.2012 under Sections 22/61/85 of NDPS Act registered at Police

Station City Gurdaspur, District Gurdaspur.

As per allegations levelled against the petitioner in the

FIR, on a secret information received by Police, the Police

apprehended the petitioner. On search by the police, petitioner was

found to be in possession of narcotic power, which was alleged to be

kept in the pocket of his shirt under his pant. The samples of 10-10

gms each were taken and converted into parcel and remaining

narcotic power after weighing come to 800 grams and samples were

sent for chemical examination.

As per chemical report, the contents of the powder have

been shown as Destropropoxyphene.

(5) Crl. Misc. No.M-5656 of 2012 titled as Bhupinder Singh

@ Doctor Vs. State of Punjab arising out of FIR No.237 dated CRM M-9327 of 2012 & 20 connected cases 9

28.12.2011 under Sections 22/61 of NDPS Act, registered at Police

Station Beas, District Amritsar Rural.

As per FIR the allegations against the petitioner are to the

effect that on a secret information police apprehended the petitioner.

Petitioner was stated to be coming from Sathiala College on foot and

after seeing the police party, petitioner tried to turn back after

throwing way a bag from his right hand on the road. On checking the

bag a plastic box containing 942 intoxicant tablets were found. Out of

the recovered tables, 50 tables were separated and put into a plastic

box and remaining tablets after counting were found 892 which were

put into the same plastic box and two separate parcels were

prepared. Samples were sent for chemical examination.

As per chemical examination report, diphenoxylate and

chloride are found positive and the net volume is reported to 0.076

gm average wt/tab and assay of diphenoxylate HCL is reported to be

2.45 mg/tab.

(6) Crl. Misc. No.M-2479 of 2012 titled as Raghbir Singh

Vs. State of Punjab arising out of FIR No.49 dated 26.07.2011 under

Sections 22/61/85 of NDPS Act registered at Police Station Bhikhi,

District Mansa.

As per FIR, the allegations against the petitioner are to

the effect that police apprehended the petitioner while he along with

his companion was sitting and counting the small bottles of Lomotill in

white envelope. Three packs of diazepam tablets were lying near

them. The small bottles lying in their hands as well as in the envelope

were gathered and counted, which came to be 120 small bottles of

Lomotill and 3 packs of diazepam tablets, one pack was containing CRM M-9327 of 2012 & 20 connected cases 10

10 tablets. It is said that there re 100 tablets in a bottle of lomotill.

Every small bottle was sealed. Total came to be 12000 tablets of

lomotill and 30 tablets of diazepam. Out of which one small bottle of

Lomotill containing 100 tablets was separated and converted into

parcel and one packet of Diazepam was also separated and converted

into parcels remaining recovery converted into separate parcels.

Samples were sent for chemical examination.

As per chemical report, alleged recovery having

Dyphenoxylate Hydrochloride 2.5 mg/tablet, atropine sulphate, 0.23

mg/tab, diazepam 9.8 mg/tab.

(7) Crl. Misc. No.M-11082 of 2012 titled as FIR No.8 dated

15.01.2012 under Sections 22/21/61/85 of NDPS Act registered at

Police Station Sadar, Sri Muktsar Sahib.

In this case the allegations leveled against the petitioner

in the FIR are to the effect that petitioner and his companion while

riding on motorcycle carrying some narcotic substance. On seeing

police party, petitioner and his companion perplexed and tried to

turn. Police apprehended the petitioner and his companion and

searched the plastic bag which is stated to be kept on the seat of

motorcycle in between petitioner and his companion. Plastic bag was

tied with rope. On opening the bag, police found 74 vials of intoxicant

of REXTAR measuring 100 ml each. On every vial it was written,

'composition/each 5 ml (teaspoon ful) contains erlorpheniramine

maleateip 4 mg cooleine phosphate ip 10 mg'. One vial of REXTAR

measuring 100 ml kept as sample and rest of the 73 vials were again

put in the same plastic bag. Samples were taken and converted into

parcels. Samples were sent for chemical examination. CRM M-9327 of 2012 & 20 connected cases 11

As per chemical report, cholorpheniramien maleate and

codeinphosphate were found positive. Each 5 ML is reported to be

contained chloropheniramine maleate 3.84 mg and codeinphosphate

10.16 mg.

(8) Crl. Misc. No.M-9025 of 2012 titled as Dharamvir Saini

@ Kaka Vs. State of Punjab arising out of FIR No.41 dated

13.04.2011 under Sections 21/22/61/85 of NDPS Act registered at

Police Station Division No.1, Pathankot.

The allegations levelled against the petitioner in the FIR

are to the effect that petitioner while coming on a white scooter

bearing registration No.PB-35 D 7998, on seeing policy party by

stopping his scooter and by taking out a green colour plastic envelope

from his shirt with his left hand tried to throw the same in the houses.

On having suspicious, police apprehended the petitioner and searched

the plastic bag which was in the right hand of the petitioner. On

opening the bag, police found white coloured intoxicant powder. Out

of which two samples of 10 grams each were separated and were

packed in different plastic containers. Remaining intoxicant powder on

weighment was found to be 280 grams. Both the plastic packets of

intoxicant powder were separated packed and converted into parcels

and sent for chemical examination.

As per chemical examination report, the net volume of

diphenoxylate is reported to be 21.72%.

(9) Crl. Misc. No.M-4967 of 2012 titled as Pritpal Singh Vs.

State of Punjab arising out of FIR No.02 dated 03.01.2012 under

Sections 22/61/85 of NDPS Act registered at Police Station Civil Line

Kambo, District Amritsar.

CRM M-9327 of 2012 & 20 connected cases 12

In this case, as per the FIR, the petitioner was seen

coming on foot and on seeing the police, he got frightened and threw

the bag and tried to escape. He was captured and upon search, the

bag was found to contain 800 tablets of Pynonspas and 90 capsules of

Dexvon.

As per chemical examination report, samples of both the

capsules were identified as Dextrpropoxyphene Hcl nd Dicyclomine

Hcl and Paracetamol. Assay of Paracetamol was 397 mg/cap. and

Assay of Dextrapropoxyphene and Dicyclomine Hcl were 73.12

mg/cap.

(10) Crl. Misc. No.M-3506 of 2012 titled as Mohan Chand @

Mohan Singh Vs. State of Punjab arising out of FIR No.68 dated

26.06.2011 under Sections 21/29/61/85 of NDPS Act registered at

Police Station Division No.1, Ludhiana.

As per the FIR, a special informer came present before SI

Lovedeep Singh that a tea vendor in Ranjeet Complex, opposite to

Pindi Street, is selling intoxicant medicines and that if a raid is

conducted instantaneously, a huge quantity of intoxicant medicines

can be recovered from him. The recovery effected from the petitioner

included Proxywon capsules 1286, Paravon N Capsules 1190 an

Sodimol tables 1200.

As per Annexure `A' attached with the report of the

chemical examiner, average quantity of ingredients in the parcels

were Diphenoxylate hydrochloride 2.4 mg/cap, tropine suplphate

0.023 mg/tab, Dextropropoxyphene Hcl 64.8 mg/cap, Dicyclomine Hcl

9.8 mg/cap, Paracetamol 399.9 mg/cap, Diazepam 4.8 mg/cap,

Nitrazepam 9.8 mg/cap, Pentazocine Lactage 29.8 mg/ml, CRM M-9327 of 2012 & 20 connected cases 13

Chlorphenirmine Maleate 3.8 mg/5 ml, Codeine Phosphate 9.8 mg/5

ml nd Dextropropoxyphene Nepsylate 99.8 mg/cap.

(11) Crl. Misc. No.M-11121 of 2012 titled as Harinder Rani

Vs. State of Punjab arising out of FIR No.147 dated 01.07.2011 under

Sections 21/61/85 of NDPS Act registered at Police Station Adampur,

Jalandhar.

As per the FIR, the petitioner and her co-accused were

travelling in car bearing registration No.PB-08-AC-0081 when they

were stopped at the naka by the police and the petitioner was found

holding a heavy bag in her hand. Upon suspicion, both the accused

were apprised of their statutory right and the DSP was summoned at

the spot. Search of the bag revealed 500 grams of Ketamine (ICE).

Upon search of the co-accused of the petitioner, one kilogram of

Ketamine (ICE) was found wrapped around his waist.

As per report of the chemical examiner, Nitrazepam

contents to the extent of 29.12% were found in the sample.

(12) Crl. Misc. No.M-38827 of 2011 titled as Gurwinder

Singh Vs. State of Punjab arising out of FIR No.21 dated 25.03.2011

under Sections 22/61/85 of NDPS Act registered at Police Station

Jhunir, District Mansa.

As per the allegations of the FIR, raid was conducted by a

patrolling police party on receipt of a secret information that the

petitioner was selling intoxicating tablets in the bushes near the Dera

of Baba Dhayan Dass. As per allegations, 1500 tablets were

recovered from the possession of the petitioner.

As per the report of chemical examiner, each tablet

contained 0.48 mg of Alprazolam salt.

CRM M-9327 of 2012 & 20 connected cases 14 (13) Crl. Misc. No.M-1463 of 2012 titled as Mohd. Saleem

Vs. State of Punjab arising out of FIR No.98 dated 26.08.2011 under

Sections 22/61/85 of NDPS Act registered at Police Station Dehlon,

District Ludhiana.

As per the FIR, the petitioner and his co-accused were

riding a motorcycle when they were signaled to stop at the naka laid

by the police. Whereas the co-accused of the petitioner succeeded in

running away, the petitioner was apprehended. The black heavy bag

which fell off the motorcycle was found to contain 1000 intoxicant

capsules and 220 bottles of Rexcof Cough Syrup, each 100 ml.

In this case, the report of the chemical examiner is still

awaited.

(14) Crl. Misc. No.M-30269 of 2011 titled as Sajiv Kumar

Vs. State of Punjab arising out of FIR No.20 dated 26.04.2011 under

Sections 22/61/85 of NDPS Act registered at Police Station Sadar

Budhlada, District Mansa.

As per the FIR, the police party headed by ASI Kuldeep

Singh was on patrolling duty and were going from village Bachhuana

on metaled road to village Dodra, when the petitioner was seen

coming the side of village Dodra carrying a plastic bag. After fulfilling

the requisite formalities, the plastic bag was searched and found to

contain 500 grams of some intoxicating powder out of which 10

grams was separated as a sample and thereafter the sample and the

remaining powder were made into separate parcels.

As per the report of the chemical examiner,

Dextropropoxyphene to the extent of 23.76% was found in the

sample.

CRM M-9327 of 2012 & 20 connected cases 15

(15) Crl. Misc. No.M-1874 of 2012 titled as Sunny alias

Sanna Vs. State of Punjab arising out of FIR No.104 dated

10.06.2011 under Sections 22/61/85 of NDPS Act registered at Police

Station Dinanagar, District Gurdaspur.

As per the allegations in the FIR, a police party was going

towards Awankha. When the police party reached near the Awankha

bridge, one boy (petitioner herein) became frightened and tried to

throw a polythene bag which he was carrying in his hand. The police

party caught hold of him. After completing the necessary formalities,

search of the bag was conducted and it was found t contain 1000

grams of intoxicating powder.

As per the report of chemical examiner, the sample of the

intoxicating powder was found to contain 10.2% Dextropropoxyphene

hydrochloride.

(16) Crl. Misc. No.M-3749 of 2012 titled as Arun Kapoor Vs.

State of Punjab arising out of FIR No.247 dated 07.12.2011 under

Sections 22/61/85 of NDPS Act registered at Police Station Bhargo

Camp, District Jalandhar City.

As per the allegations in the FIR, the police had laid a

naka and when the petitioner reached at the naka, he was asked to

show the documents of the Activa Honda which he was riding. When

the petitioner lifted the dicky of the scooter, a black polythene bag

was noticed therein by the police. Search of the bag revealed 1440

capsules of Spasmo Proxyvon and 250 tablets of Nitmed-10.

As per the catalogue of the aforesaid medicines,

appended as Annexure P-2, Spasmo Proxyvon is a registered

trademark of M/s Wockhardy Limited and is a Schedule H drug. It CRM M-9327 of 2012 & 20 connected cases 16

contains Dicyclomine Hydrochloride IP 10 mg and Propoxyphene

Napsylate USP 100 mg. As per the catalogue of NITMED-10, each

tablet thereof contains Nitrazepam 10 mg.

(17) Crl. Misc. No.M-37270 of 2011 titled as Piare Lal Vs.

State of Punjab arising out of FIR No.81 dated 11.09.2011 under

Sections 22/61/85 of NDPS Act registered at Police Station Jaito,

District Faridkot.

As per the FIR, the petitioner was apprehended by a

patrolling police party and was found in possession of 10 bottles of

100 ml each of Rexcof Cough syrup and some intoxicating powder

weighing 100 grams.

As per the report of the chemical examiner, the intoxicant

powder was found to contain 25.25% Phencycladine.

(18) Crl. Misc. No.M-38232 of 2011 titled as Lachhman

Singh Vs. State of Punjab arising out of FIR No.23 dated 03.06.2011

under Sections 22/61/85 of NDPS Act, registered at Police Station

Balianwali, District Bathinda.

As per the allegations in the FIR, the petitioner was

apprehended with a bag containing 15 bottles of Rexcof cough syrup

(100 ml each), 13 bottles of Lomotil (each bottle containing 100

tablets - total 1300 tablets) containing Diphenoxylate Hydrochloride

2.4 mg/tablet and Atropine Sulphate 0.023 mg/tab, and 530 grams of

intoxicating powder.

As per the report of the chemical examiner, the

intoxicating powder contained Tramadol Hydrochloride 7.34%.

(19) Crl. Misc. No.M-14836 of 2012 titled as Amit Kumar

alias Meetu Vs. The State of Punjab arising out of FIR No.6 dated CRM M-9327 of 2012 & 20 connected cases 17

16.01.2012 under Sections 22/61/85 of NDPS Act registered at Police

Station Fazilka City District Fazilka.

As per the allegations of the FIR, ASI Jagtar Singh along

with the accompanying officials when reached just behind 100 yards

from Sacha Sauda Raod, then the petitioner while holding a polythene

bag in his right hand was coming on row and on seeing the police

party he turned towards his left hand and on suspicion he was

apprehended and the intoxicating powder 100 grams and 700

capsules of PETMOL SPAS were recovered from him.

As per the report of the chemical examiner, the intoxicant

powder was containing Alpazolam which is at serial No.178 in the

Schedule under the Act and the capsules were containing

Dicychomine Hydrochloride.

(20) Crl. Misc. No.M-12239 of 2012 titled as Satpal Vs.

State of Punjab arising out of FIR No.18 dated 31.01.2011 under

Sections 22/61/85 of NDPS Act, registered at Police Station Civil

Lines, Batala, Police District Batala, District Gurdaspur.

As per the allegations in the FIR, the petitioner was seen

coming from Gurdaspur side and was apprehended on suspicion. The

plastic bag in the right hand of the petitioner was found to be

containing some intoxicant powder. The samples were drawn which

were put in plastic bags. The intoxicant powder was found to be 1000

grams.

As per the report of the chemical examiner, the said

powder was found containing 18.33% Dextropropoxyphene.

(21) Crl. Misc. No.M-7195 of 2012 titled as Sethi Lal Vs.

State of Punjab arising out of FIR No.160 dated 31.10.2011 under CRM M-9327 of 2012 & 20 connected cases 18 Sections 22/61/85 of NDPS Act registered at Police Station

Garshankar, District Hoshiarpur.

As per the allegations of the FIR, a raid was conducted by

a police party on a secret tip off that the petitioner was selling

intoxicating medicines to his drug addicted clients on the road of

Village Bora to village Thanna near a poplar farm. The petitioner was

apprehended and from his possession 48 packets of Momolit (each

packet contained 100 tablets), five leaves of Proxyvon (each

containing 24 capsules), 14 bottles of Rexcof cough syrup were

recovered for which he could not produce any permit or license.

As per the report of the chemical examiner, the samples

sent for analysis contained Dextropropoxyphene Napsylate 99.7

mg/cap, Paracetamol 399.7 mg/cap, Diphenoxylate hydrocholoride

2.3 mg/tab, Chlorpherniramine Maleate 3.8 mg/5 ml and Codeine

Phosphate 9.7 mg/5 ml.

In all of the above mentioned cases, one or the other

salt/preparation out of the following is involved:

Name Entry No. in Schedule Entry No. in to the Act Notification

-------------------------------------------------------------------------

a) Nitrazepam 64 221

b) Chlorophemiramine Maleate

c) Codeine phosphate 28 d) Dextropropoxyphenechloride 87 33 e) Diphenoxylate Chloride 58 44 f) Phencyclidine 22

g) Atropine sulphate CRM M-9327 of 2012 & 20 connected cases 19

h) Tramedol Hydrochloride

i) Acetaminophen

Dextropropoxyphene Napsilate 87 33

j) Dicylomine Chloride

k) Diazepam 43 494 l) Alprazolem 30 178

m) Pheniramine Maleate

n) Buprenorphine Chloride 92 169

o) Ketamine 110A 238E

p) Salts and Preparations of above 111

Any mixture or preparation that of 239 with or without a natural material,

of any of the above drugs.

In all these bail petitions I was not required to go for

elaborate details and discussion, learned counsel for the petitioners

insisted that their main argument is that case under the NDPS Act is

not made out , at the most it can be under the Drug and Cosmetics

Act,1940 and percentage is to be taken into consideration not the

entire mass. So, it would be appropriate and proper to consider their

arguments in detail.

The drug addiction has become the worst illness of our

society these days and it has been spreading its tentacles not only

throughout the nation but the whole world. There is evidence that it

can damage the brain and the mind and is prone to increase the risk

of stroke, seizure, dementia, liver disease, cancer and hypertension

and cause foetal damage.

CRM M-9327 of 2012 & 20 connected cases 20

Therefore, before I consider the respective contentions of

the learned counsel for the parties, it would be appropriate to trace

out the background and history of the enactments with regard to

Narcotic Drugs and Psychotropic Substances (Natural / Synthetic).

The Constitutional Mandate :

1. Article 47 of the Constitution of India mandates

improvement of Public health a primary duty of the State :

'Article 47. Duty of the State to raise the level of

nutrition and the standard of living and to improve

public health.- The State shall regard the raising of the

level of nutrition and the standard of living of its people

and the improvement of public health as among its

primary duties and, in particular, the State shall

endeavour to bring about prohibition of the consumption

except for medicinal purposes of intoxicating drinks and of

drugs which are injurious to health'.

Overview of International Drug(s) Law and Conventions:

2. In 1909, the Shanghai Opium Commission was

established to collect data and estimate the extent of international

opium trade.

3. The Hague Convention, 1912, thirteen States agreed

to control the production, manufacture and distribution of opium. The

Hague Convention came into force only after principles of ratification

were clarified under the Treaty of Versailles, 1919. In 1920, the

League of Nations passed a resolution creating an Opium Advisory

Committee to oversee the implementation of the Hague Convention.

CRM M-9327 of 2012 & 20 connected cases 21 4. In 1925, two international agreements led the

international community to commit itself to a reduction, as opposed

to control of opium production. The first agreement concerning the

Manufacture or Internal Trade in, and Use of Prepared Opium,

was concluded in Geneva on 11 February 1925 where signatory

nations stated that they were - "fully determined to bring about the

gradual and effective suppression of the manufacture of, internal

trade in and use of prepared opium." The second treaty, called the

International Opium Convention, 1925, also referred to as the

Geneva Convention relating to Dangerous Drugs, extended

control to cannabis and institutionalized the international system of

regulation by creating a Permanent Central Opium Board to

maintain statistics on international trade in narcotics. The series of

conventions laid down administrative measures, without criminalizing

users and/or producers of opiates, cocaine and cannabis.

5. The Convention for Limiting the Manufacture and

Regulating the Distribution of Narcotic Drugs, 1931 sought to

limit supplies of potentially addicting but medicinally useful

substances, such as morphine and codeine to amounts necessary for

medical and scientific purposes. It introduced a system for countries

to submit estimates of the quantity of drugs produced and consumed

for medical reasons. This practice continues under the existing

international framework for drug control.

6. The 1936 Convention for the Suppression of the

Illicit Traffic in Dangerous Drugs was the first treaty to focus on

illegal trade in drugs. Proposing a semi-punitive approach, the

Convention mandated signatories to designate certain activities as CRM M-9327 of 2012 & 20 connected cases 22

offences while regulating other acts. Signed by thirteen States, the

Convention came into force in 1939.

7. In 1946, the League of Nations' drug control functions

passed on to the United Nations (hereinafter referred to as the "UN").

The League's Advisory Committee on Opium became the UN

Commission on Narcotic Drugs, which presently leads drug policy

making within the UN system.

8. In 1953, the Opium Limitation Protocol was adopted,

and it authorized seven countries including India to grow opium for

export.

9. The U.N Single Convention on Narcotic Drugs, 1961

was introduced to consolidate existing drug control measures into a

"single" treaty. The 1961 Convention aims to balance the use of

narcotic drugs by ensuring their availability for medical and scientific

pursuits while simultaneously discouraging production, manufacture,

export, import, distribution of, trade in, use and possession for non-

medical purposes. The treaty laid down a 15 year period for States to

eliminate non medical use of opium and 25 years for coca and

cannabis. Drugs are classified according to their perceived liability to

abuse and risk to public health under a fourfold system of Schedules.

Schedule I lists drugs subject to the strictest controls including

heroin, cocaine and cannabis, Schedule II lists out substances that

require less stringent regulations, Schedule III covers drugs that are

perceived to be at least risk of abuse and Schedule IV applies to

drugs that are permitted for medical and scientific use.

10. The 1961 Convention also created the International

Narcotics Control Board (hereinafter referred to as the "INCB"), a CRM M-9327 of 2012 & 20 connected cases 23

body comprising thirteen independent experts to oversee the

implementation of international drug conventions.

11. In 1971, the Convention on Psychotropic

Substances was adopted as a companion instrument to introduce

controls over the manufacture, export and import of psychotropic

substances such as amphetamines, barbiturates and hallucinogens

like LSD. Its provisions are identical to those of the 1961 Convention.

12. The 1972 Protocol amended the 1961 Single

Convention on Narcotic Drugs and called upon member States to

increased efforts to prevent the illicit production of, traffic in and use

of narcotic drugs and to provide treatment and rehabilitation to

persons addicted to drugs.

13. In 1988, The Convention against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances was adopted,

keeping in view increasing transnational drug crimes and the difficulty

in prosecuting persons involved in international drug trafficking. The

purpose of The 1988 Convention is to harmonize national laws and

enforcement of actions against drug trafficking, including provisions

on extradition, mutual legal assistance, cooperation and assistance

for transit states, controlled delivery, money laundering, asset

seizure, the diversion of precursor chemicals, and illicit traffic by sea

and via the mail.

14. The three drug conventions of 1961, 1971 and 1988

constitute the International legal framework for drug control. Like

other international treaties, these drug conventions are not self-

executing. Their provisions must be incorporated into domestic law by

legislative acts, in accordance with constitutional principles and the CRM M-9327 of 2012 & 20 connected cases 24

basic concepts of the legal system of that State. India has signed and

ratified these three conventions. India's commitment to prevention of

drug abuse and trafficking predates the coming into force of the three

conventions.

15. The Narcotic Drugs and Psychotropic Substances (NDPS)

Act, 1985 was framed taking into account India's obligations under

the three UN drug Conventions as well as Article 47 of the

Constitution. This Act prohibits, except for medical or scientific

purposes, the manufacture, production, trade, use, etc. of narcotic

drugs and psychotropic substances.

16. The Governments' policy has been to promote their use

for medical and scientific purposes while preventing their diversion

from licit sources, and prohibiting illicit trafficking and abuse.

Pre - Independence Drug Law(s) in India:

17. The use of psychoactive or mood altering substances has

long existed in the country. Cannabis and opium were consumed for

medical as well as recreational purposes. Cannabis was associated

with religious occasions whereas opium was served at

family/community ceremonies. Besides, these substances were

administered to persons suffering from rheumatism, migraine,

malaria, cholera or other minor ailments. Their use was regulated by

society rather than legal norms. Excessive or problematic drug use

was rarely reported. Opium poppy was one of the main commodities

for export and generated considerable revenue during the sixteenth

to nineteenth century.

18. The first statutory law that regulated narcotic drugs in

India was the Opium Act, 1857(Act no 13 of 1857). The Act was CRM M-9327 of 2012 & 20 connected cases 25

introduced against the backdrop of the Opium wars(1839-1842 and

1856-1860) between Britain and China and consolidated the colonial

state's control over the profitable poppy trade. The Opium Act of

1857 introduced licenses for growing poppy - a practice that

continues till date. It appointed Opium Agents and Opium Officers to

supervise licensing and collection of opium, on behalf of the

government.

19. The Opium Act of 1878(Act no 1 of 1878)

strengthened government control over cultivation, possession,

transport, import, export, sale and warehousing of opium. It

conferred enforcement powers on officers of Departments of Central

Excise, Narcotics, Drugs Control, Customs and Revenue. The Opium

Acts were motivated by commercial interests rather than punitive

aims.

20. In 1930, the Dangerous Drugs Act (Act no 2 of

1930) extended regulation to coca leaves and hemp, besides opium

and its synthetic varieties. It incorporated punishment for unlicensed

cultivation, possession, manufacture and import of dangerous drugs,

upto a maximum of three years imprisonment. Therefore, the Drugs

and Cosmetics Act, 1940 and The Drugs (Control) Act, 1950 were

also enacted.

21.These Acts did not penalise consumption of drugs and/or

possession for personal consumption. On the contrary, they

permitted opium users to register with the Government and

procure opium from licensed shops. The Acts enforced state control

over commercial activities but tolerated personal use of drugs.

22. CRM M-9327 of 2012 & 20 connected cases 26

Legislative History of the NDPS Act, 1985

22. The NDPS Act was enacted by Parliament in 1985 in

keeping with International Drug Conventions, namely the Single

Convention on Narcotic Drugs, 1961; the Protocol amending the

Single Convention on Narcotic Drugs, 1972 and the Convention on

Psychotropic Substances, 1971. The NDPS Bill, 1985 was passed

hastily, without much legislative debate. It received the President's

assent on 16 September 1985 and came into force on 14 November

1985. The NDPS Act, 1985 repealed the Opium Act, 1857, the Opium

Act, 1878 and the Dangerous Drugs Act, 1930, except for those

actions which were commenced or concluded before the date when

present act came into force .

23. Statement of Objects and Reasons of the NDPS Act,

1985: India was becoming a transit for drug trafficking and the then

legislation was ineffective in countering the problem. The following

deficiencies were noted in the law prevailing at the time - (i) absence

of stringent penalties against drug trafficking, ii) weak enforcement

powers, iii) development of a vast body of international law, which

India was a signatory to, and, iv) lack of regulations over

psychotropic substances.

24. The NDPS Act, 1985 was introduced as a comprehensive

legislation to tighten control over abuse on narcotic drugs and

psychotropic substances, enhance penalties, especially for trafficking

in drugs, strengthen regulations over psychotropic substances and

provide for the implementation of international conventions, to which

India was a party.

CRM M-9327 of 2012 & 20 connected cases 27

25. The NDPS Act, 1985 combines elements of regulation with

prohibition of narcotic drugs and psychotropic substances. The Act

proscribes cultivation, production, manufacture, possession, sale,

purchase, transport, warehousing, use, consumption, inter-state

import and export, import into and export outside India and

transshipment of narcotic drugs and psychotropic substances except

for medical and scientific reasons and in accordance with the statute

and rules thereunder. At the same time, it empowers the Central and

State Governments to frame rules and permit the above mentioned

activities. For example, although consumption of morphine is illegal,

the drug can be administered to patients suffering from severe pain

as the latter constitutes legitimate medical use under the Act.

26. To deter drug crimes, the Act introduced a mandatory

minimum penalty of rigorous imprisonment for ten years and a fine of

Rs one lakh. For repeat offences, the minimum sentence was fifteen

years imprisonment, which may extend to thirty years.

27. The NDPS Act, 1985 was supplemented by the

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988, which provides for preventive detention of

persons involved in illicit traffic in narcotic drugs and psychotropic

substances.

28. In 1989, the NDPS Act underwent the first set of

amendments, after a Cabinet Sub-Committee for combating drug

traffic and abuse recommended that the law be made more stringent.

At the time, among other provisions, Section 31A was also

incorporated into the statute.

CRM M-9327 of 2012 & 20 connected cases 28

29. In 1998, the second Amendment to the NDPS Act was

introduced in Parliament. Thereafter, the NDPS (Amendment) Bill,

1998 was examined by a Parliamentary Standing Committee on

Finance.

30. In 2001, Parliament passed the NDPS (Amendment) Act.

The NDPS (Amendment) Act, 2001 sought to rationalise the

sentencing structure, which was considered harsh and

disproportionate. Earlier, a person with a small amount of contraband

could be sentenced to ten years imprisonment and a fine of Rupees

one lakh if s/he failed to prove that the drug was meant for personal

consumption. The NDPS (Amendment) Act, 2001 prescribes

punishment according to the drug and quantity seized - according to

whether the amount is "small" or "commercial". Under the present

Act, a person dealing in small quantity of illicit drugs is subject to

imprisonment of upto six months and/or fine of Rs ten thousand while

a person dealing in commercial quantity can be sentenced to jail for a

period of ten to twenty years and a fine ranging from one to two lakh

rupees. A person caught with an amount between small and

commercial quantity is punishable with imprisonment upto ten years

and with fine extending to one lakh rupees.

31. Section 31A was also amended in 2001. As it stands after

amendment, the NDPS Act provides for the most stringent penal

framework for activities relating to narcotic drugs and psychotropic

substances, evidenced in the presumption of guilt and reversal of

burden of proof (Section 35,NDPS Act), discouraging grant of bail

(Section 37, NDPS Act), bar on suspension, remission and

commutation of sentences awarded (Section32A, NDPS Act), bar on CRM M-9327 of 2012 & 20 connected cases 29

release of offender on probation (Section 33, NDPS Act), enhanced

punishment for more than one convictions (Section 31,NDPS Act) and

a mandatory death sentence for subsequent conviction for specific

offences (impugned Section 31A).

32. Section 31A was incorporated in 1989 after the

Parliament passed the NDPS (Amendment) Bill, 1988. The original

Section read:

"31A (1): "Notwithstanding anything contained in Section

31, if any person who has been convicted of the

commission of, or attempt to commit, or abetment of, or

criminal conspiracy to commit, any of the offences

punishable under section 15 to section 25 (both inclusive)

or section 27A, is subsequently convicted of the

commission of, or attempt to commit, or abetment of, or

criminal conspiracy to commit, an offence relating to, -

"(a) engaging in the production, manufacture, possession,

transportation, import into India, export from India or

transshipment, of the narcotic drugs or psychotropic

substances specified under column (1) of the Table below

and involving the quantity which is equal to or more than

the quantity indicated against each such drug or

substance, as specified in column (2) of the said Table".

After amendment, it reads as under:-

"31-A. Death penalty for certain offences after

previous conviction-(1) Notwithstanding anything

contained in section 31, if any person who has been

convicted of the commission of, or attempt to commit, or CRM M-9327 of 2012 & 20 connected cases 30

abetment of, or criminal conspiracy to commit, any of the

offences punishable under [section 19, section 24, section

27-A and for offences involving commercial quantity of

any narcotic drug or psychotropic substance], is

subsequently convicted of the commission of, or attempt

to commit, or abetment of, or criminal conspiracy to

commit, an offence relating to,

(a) engaging in the production, manufacture, possession,

transportation, import into India, export from India

or transhipment, of the narcotic drugs or

psychotropic substances specified under column (1)

of the Table below and involving the quantity which

is equal to or more than the quantity indicated

against each such drug or substance, as specified in

column (2) of the said Table:

Particulars of narcotic Quantity

drugs/psychotropic substances (1) (2) (i) Opium 10 kgs (ii) Morphine 1 kg (iii) Heroin 1 kg (iv) Codcine 1 kg (v) Thebaine 1 kg (vi) Cocaine 500 grams (vii) Hashish 20 kgs CRM M-9327 of 2012 & 20 connected cases 31

(viii) Any mixture with or without [lesser of the quantity between

any neutral material of any of the quantities given against the

the above drugs respective narcotic drugs or

psychotropic substances

mentioned above forming part

of the mixture]

(ix) LSD, LSD-25(+)-N, N- 500 grams

Diethyllysergamide (d-lysergic

acid deithylaminde)

(x) THC (Tetrahydrocannabinols, 500 grams

the following isomers: 6-a (10-

a), 6-a(7), 7, 8, 9, 10, 9(11)

and their stereochemical

variants) (xi) Methamphetamine (+)-2- 1,500 grams

Methylamine-1- Phenylpropane

(xii) Methaqualone (2-Methyl-3- 1,500 grams

o-tolyl-4-(3-H)- Quinazolinone)

(xiii) Amphetamine (+)-2- 1,500 grams

amino-1-Phenylpropane

(xiv) Salts and preparations of 1,500 grams;

the Psychotropic Substances

mentioned in (ix) to (xiii)

(b) financing, directly or indirectly, any of the activities

specified in clause (a), shall be punishable with

death.

(2) Where any person is convicted by a competent Court

of criminal jurisdiction outside India under any law CRM M-9327 of 2012 & 20 connected cases 32

corresponding to the provisions of [section 19, section 24

or section 27-A and for offences involving commercial

quantity of any narcotic drug or psychotropic substance]

such person, in respect of such conviction, shall be dealt

with for the purposes of sub-section (1) as if he had been

convicted by a Court in India."

33. In providing such stringent measures, the NDPS Act

overrides provisions of the Code of Criminal Procedure, 1973

(hereinafter referred to as "CrPC") such as the power to suspend and

remit sentences (Sections 432, 433, and 434 CrPC) and the power to

release offender on probation or admonition (Section 360, CrPC).

NDPS Act, specifically Sections 8, 9, 9A and 10 refers to

the power of the Central as well as State Governments to permit,

control and regulate the controlled substances and Section 80

provides that the provision of this Act, Rules made thereunder shall

be in addition to and not in derogation of the Drugs and Cosmetics

Act or rules made thereunder. In the light of the provisions of the

NDPS Act, Rules and Order 1993, the State or the Central

Government should see which drugs and substances have potential

for abuse. The United States of America has enacted the Controlled

Substances Act. According to which, the following items are indicators

that a drug or other substance has a potential for abuse.

(1) There is evidence that individuals are taking the drug

or other substance in amounts sufficient to create a

hazard to their health or to the safety of other individuals

or to the community.

CRM M-9327 of 2012 & 20 connected cases 33

(2) There is significant diversion of the drug or other

substance from legitimate drug channels.

(3) Individuals are taking the drug or other substance on

their own initiative rather than on the basis of medical

advice from a practitioner.

(4) The drug is a new drug so related in its action to a

drug or other substance already listed as having a

potential for abuse to make it likely that the drug will

have the same potential for abuse as such drugs, thus

making it reasonable to assume that there may be

significant diversions from legitimate channels, significant

use contrary to or without medical advice, or that it has a

substantial capability of creating hazards to the health of

the user or to the safety of the community. Of course,

evidence of actual abuse of a substance is indicative that

a drug has a potential for abuse.

In determining into which schedule a drug or other

substance should be placed, or whether a substance should be

decontrolled or rescheduled, certain factors required to be considered

are as follows:

(a) The drug's actual or relative potential for abuse.

(b) Scientific evidence of the drug's pharmacological

effect, if known.

The state of knowledge with respect to the effects of a

specific drug is, of course, a major consideration. For

example, it is vital to know whether or not a drug has a

hallucinogenic effect if it is to be controlled due to that CRM M-9327 of 2012 & 20 connected cases 34

effect. The best available knowledge of the

pharmacological properties of a drug should be

considered.

(c) The state of current scientific knowledge

regarding the substance. Criteria (2) and (3) are

closely related. However, criteria (2) is primarily

concerned with pharmacological effects and (3) deals with

all scientific knowledge with respect to the substance.

(d) Its history and current pattern of abuse. To determine

whether or not a drug should be controlled, it is important

to know the pattern of abuse of that substance.

(e) The scope, duration, and significance of abuse.

Inevaluating existing abuse, the concerned authorities

must know, not only the pattern of abuse, but whether

the abuse is widespread.

(f) What, if any, risk there is to the public health. If a

drug creates dangers to the public health, in addition to

or because of its abuse potential, then these dangers

must also be considered by the Administrator.

(g) The drug's psychic or physiological dependence

liability.There must be an assessment of the extent to

which a drug is physically addictive or psychologically

habit forming.

(h) Whether the substance is an immediate precursor of

a substance already controlled. The NDPS Act allows

inclusion of immediate precursors on this basis alone into CRM M-9327 of 2012 & 20 connected cases 35

the appropriate schedule and thus safeguards against

possibilities of clandestine manufacture.

After considering the above listed factors, the competent

authorities must make specific findings concerning the drug or other

substance. This will determine into which schedule the drug or other

substance will be placed. The amendment in the schedules and

notifications should be issued under the provisions of NDPS Act, Rules

and Order 1993 from time to time.

Drugs of abuse scenario in the State of Punjab:

Disturbing scenario of drug abuse in the State of Punjab,

is appearing in the various newspapers. "The Hindu" and the "Tehelka

News Magazine" have reported such drug menace extensively. An

extract from the "Tehelka News Magazine", Vol 9, Issue 15, dated

14th April 2012, is as follows:-

"75% of the youth. Every third student. 65% of all

families in Punjab are in the throes of a sweeping drug

addiction. With little or no hope in sight."

"Angarh is just one symptom of a monstrous crises: a

staggering 75 per cent of Punjab's youth is hooked to

drug abuse, a figure the state government itself

submitted to the Punjab and Haryana High Court in 2009.

One out of every three college students in the state is on

drugs. In Doaba, Majha and Malwa - regions particularly

affected - almost every third family has at least one

addict. Every kind of drug is readily available here. From

smack, heroin and synthetic drugs to over-the-counter

drugs like Buprenorphine, Parvon Spas, Codex syrup and CRM M-9327 of 2012 & 20 connected cases 36

spurious Coaxil and Phenarimine injections. This is a state

where 30 per cent of all jail inmates have been arrested

under the Narcotic Drugs and Psychotropic Substances

Act and the DGP has kicked up a political storm by saying

it is impossible for him to control the flow of drugs into his

prisons. But the sharp irony is, this matters little because,

like Angarh, scores of other towns and villages in Punjab

are more notorious than any prison cell."

I have heard arguments of the learned counsel for the

petitioners and the State counsel, as well as, the Amicus Curiae at

length.

The learned counsel for the petitioners have vehemently

contended that the entire admixture cannot be taken into account

only the percentage is to be taken into consideration. Learned counsel

for the petitioners contended that the notification dated 18.11.2009

by which entire mixture is considered is not applicable. The

manufacturer, wholeseller and chemist already having licenses under

Drugs and Cosmetics Act, 1940 are not required to have license and

also not required to comply with statutory requirements under the

NDPS Act, Rules and Order 1993 as the drugs involved are

prescription drugs. The licence issued under the Drugs and Cosmetics

Act, 1940 (in short "D&C Act") is sufficient and the provisions of NDPS

Act and the Narcotic Durgs and Psychotropic Substances Rules, 1985

(hereinafter referred to as the "Rules) and the Narcotic Durgs and

Psychotropic Substances (Regulation of Controlled Substances) Order,

1993 (hereinafter referred to as the "Order 1993") are not applicable. CRM M-9327 of 2012 & 20 connected cases 37

Per contra learned State counsel has vehemently opposed

the arguments of the learned counsel for the petitioners. Learned

State counsel contended that though the license holders are having

license under the D&C Act, still they are required to comply with the

statutory requirements of NDPS Act, Rules and Order 1993. The

violation of the provisions of these enactments amounts to an offence

under the NDPS Act, in addition to the offence under the D&C Act.

In the light of arguments addressed by the counsel for

the parties, following questions are framed:

(i) Whether exact quantity (total mass) of the contraband

recovered from offender or percentage of Narcotic drugs /

Psychotropic Substances seized is to be taken into

consideration in relation to manufactured drugs and

preparations? If so its effect.

(ii) Whether Manufacturers, Chemists, Wholesale license

holders under the Drugs and Cosmetics Act, 1940

possessing controlled substances and manufactured

drugs/ prescription drugs are also required to comply with

the statutory provisions of the NDPS Act, Rules and Order

1993 for their possession? If so its effect.

The petitioner(s) in all the cases having been found in

possession of various quantity of the Narcotic Drugs, Psychotropic

Substances and Controlled Substances which includes

manufactured/prescription drugs are facing trial for the offences

under the NDPS Act.

CRM M-9327 of 2012 & 20 connected cases 38

Before dealing with the contentions, it would be

approppraite to reproduce the relevant provisions of the NDPS Act

which are as under:-

"2(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette; (viib) "controlled delivery" means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, controlled substances or substances substituted for them to pass out of, or through or into the territory of India with the knowledge and under the supervision of an officer empowered in this behalf or duly authorised under section 50A with a view to identifying the persons involved in the commission of an offence under this Act;

(viic) "corresponding law" means any law corresponding to the provisions of this Act;

(viid) "controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance;

(viii) "conveyance" means a conveyance of any description whatsoever and includes any aircraft, vehicle or vessel;

(viiia) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means (i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, CRM M-9327 of 2012 & 20 connected cases 39

export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;

(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or

(v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to

(iv); other than those permitted under this Act, or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder, and includes (1) financing, directly or indirectly, any of the aforementioned activities;

(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harbouring persons engaged in any of the aforementioned activities;

(ix)"International Convention" means (a) the Single Convention on Narcotic Drugs, 1961 adopted by the United Nations Conference at New York in March, 1961;

(b) the protocol, amending the Convention mentioned in sub-clause (a),adopted by the United Nations Conference at Geneva in March, 1972;

(c) the Convention on Psychotropic Substances, 1971 adopted by the United Nations Conference at Vienna in February, 1971; and

(d) any other international convention, or protocol or other instrumentamending an international convention, relating to narcotic drugs orpsychotropic substances which may be ratified or acceded to by Indiaafter the commencement of this Act;

(x) "manufacture", in relation to narcotic drugs or psychotropic substances, includes (1) all processes other than production by which such drugs or substances may be obtained;

CRM M-9327 of 2012 & 20 connected cases 40

(2) refining of such drugs or substances; (3) transformation of such drugs or substances; and (4) making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances;

(xi) "manufactured drug" means

(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;

(xii) "medicinal cannabis", that is, medicinal hemp, means any extract or tincture of cannabis (hemp);

(xiii) "Narcotic Commissioner" means the Narcotics Commissioner appointed under section 5;

(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods;

(xv) "opium" means

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine:

(xvi) "opium derivative" means

(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in CRM M-9327 of 2012 & 20 connected cases 41

this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;

(b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;

(d) diacetylmorphine, that is, the alkaloid also known as dia morphine or heroin and its salts; and

(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine; (xvii) "opium poppy" means

(a) the plant of the species Papaver somniferum L.; and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act;

(xviii) "poppy straw" means all parts (except the seeds) of the opium poppy after (xix) harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom;

(xix) "poppy straw concentrate" means the material arising when poppy straw has entered into a process for the concentration of its alkaloids;

(xx) "preparation", in relation to a narcotic drug or psychotropic substance, means anyone or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances;

(xx) "prescribed" means prescribed by rules made under this Act;

CRM M-9327 of 2012 & 20 connected cases 42 (xxi) "production" means the separation of opium, poppy straw, coca leaves or cannabis from the plants from which they are obtained:

(xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;

(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.

(xxiv) 'to import inter-State" means to bring into a State or Union territory in India from another State or Union territory in India;

(xxv) "to import into India", with its grammatical variations and cognate expressions, means to bring into India from a place outside India and includes the bringing into any port or airport or place in India of a narcotic drug or a psychotropic substance intended to be taken out of India without being removed from the vessel, aircraft, vehicle or any other conveyance in which it is being carried.

Explanation.-For the purposes of this clause and clause (xxvi), "India" includes the territorial waters of India; (xxvi) "to export from India", with its grammatical variations and cognate expressions, means to take out of India to a place outside India;

(xxvii) "to export inter-State" means to take out of a State or Union territory in India to another State or Union territory in India;

(xxviii) "to transport" means to take from one place to another within the same State or Union territory; (xxviiia) "use", in relation to narcotic drugs and psychotropic substances, means any kind of use except personal consumption;

CRM M-9327 of 2012 & 20 connected cases 43

(xxix) words and expressions used herein and not defined but defined in the Code of Criminal Procedure, 1973 (2 of 1974) have the meanings respectively assigned to them in that Code.

Explanation.-For the purposes of clauses (v), (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent of a substance means a preparation in which one gram of substance, if solid, or one milliliter of substance, if liquid, is contained in everyone hundred milliliter of the preparation and so on in proportion for any greater or less percentage:

Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis, which it may deem appropriate for such calculation.

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 inter-State, export inter-State, import into India, export from India or tranship 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 thereunder, the prohibition against the cultivation of the cannabis plant for the CRM M-9327 of 2012 & 20 connected cases 44

production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State 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:

Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.

8-A. Prohibition of certain activities relating to property derived from offence .No person shall

(a) convert or transfer any property knowing that such property is derived from an offence committed under this Act or under any other corresponding law of any other country or from an act of participation in such offence, for the purpose of concealing or disguising the illicit origin of the property or to assist any person in the commission of an offence or to evade the legal consequences; or

(b) conceal or disguise the true nature, source, location, disposition of any property knowing that such property is derived from an offence committed under this Act or under any other corresponding law of any other country;

or

(c) knowingly acquire, possess or use any property which was derived from an offence committed under this Act or under any other corresponding law of any other country.

9. Power of Central Government to permit, control and regulate .(1) Subject to the provisions of section 8, the Central Government may, by rules

(a) permit and regulate

(i) the cultivation, or gathering of any portion (such cultivation or gathering being only on account of the Central Government) of coca plant, or the production, CRM M-9327 of 2012 & 20 connected cases 45

possession, sale, purchase, transport import inter-State, export inter-State, use or consumption of coca leaves;

(ii) the cultivation (such cultivation being only on account of Central Government) of the opium poppy;

(iii) the production and manufacture of opium and production of poppy straw;

(iv) the sale of opium and opium derivatives from the Central Government factories for export from India or sale to State Government or to manufacturing chemists;

(v) the manufacture or manufactured drugs (other than prepared opium) but not including manufacture of medicinal opium or any preparation containing any manufactured drug from materials which the maker is lawfully entitled to possess;

(vi) the manufacture, possession, transport, import inter- State, export inter-State, sale, purchase, consumption or use of psychotropic substances;

(vii) the import into India and export from India and transhipment of narcotic drugs and psychotropic substances;

(b) prescribe any other matter requisite to render effective the control of the Central Government over any of the matters specified in clause (a).

(2) In particular and without prejudice to the generality of the foregoing power, such rules may

(a) empower the Central Government to fix from time to time the limits within which licences may be given for the cultivation of the opium poppy;

(b) require that all opium, the produce of land cultivated with the opium poppy, shall be delivered by the cultivators to the officers authorised in this behalf by the Central Government;

CRM M-9327 of 2012 & 20 connected cases 46

(c) prescribe the forms and conditions of licences for cultivation of the opium poppy and for production and manufacture of opium; the fees that may be charged therefor the authorities by which such licences may be granted, withheld, refused or cancelled and the authorities before which appeals against the orders of withholding, refusal or cancellation of licences shall lie;

(d) prescribe that opium shall be weighed, examined and classified according to its quality and consistence by the officers authorised in this behalf by the Central Government in the presence of the cultivator at the time of delivery by the cultivator;

(e) empower the Central Government to fix from time to time the price to be paid to the cultivators for the opium delivered;

(f) provide for the weighment, examination and classification, according to the quality and consistence, of the opium received at the factory and the deductions from or additions (if any) to the standard price to be made in accordance with the result of such examination; and the authorities by which the decisions with regard to the weighment, examination, classification, deductions or additions shall be made and the authorities before which appeals against such decisions shall lie;

(g) require that opium delivered by a cultivator, if found as a result of examination in the Central Government factory to be adulterated, may be confiscated by the officers authorised in this behalf;

(h) prescribe the forms and conditions of licences for the manufacture of manufactured drugs, the authorities by which such licences may be granted and the fees that may be charged therefor;

(i) prescribe the forms and conditions of licences or permits for the manufacture, possession, transport, CRM M-9327 of 2012 & 20 connected cases 47

import inter-State, export inter-State, sale, purchase, consumption or use of psychotropic substances, the authorities by which such licences or permits may be granted and the fees that may be charged therefor;

(j) prescribe the ports and other places at which any kind of narcotic drugs or psychotropic substances may be imported into India or exported from India or transhipped; the forms and conditions of certificates, authorisations or permits, as the case may be, for such import, export or transhipment; the authorities by which such certificates, authorisations or permits may be granted and the fees that may be charged therefor.

[9-A. Power to control and regulate controlled substances .(1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the power conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution disposal or acquisition of any controlled substance.]

10. Power of State Government to permit, control and regulate .(1) Subject to the provisions of section 8, the State Government may, by rules

(a) permit and regulate CRM M-9327 of 2012 & 20 connected cases 48

(i) the possession, transport, import inter-State, export inter-State warehousing, sale, purchase, consumption and use of poppy straw;

(ii) the possession, transport, import inter-State, export inter-State, sale purchase, consumption and use of opium;

(iii) the cultivation of any cannabis plant, production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption or use of cannabis (excluding charas);

(iv) the manufacture of medicinal opium or any preparation containing any manufactured drug from materials which the maker is lawfully entitled to possess;

(v) the possession, transport, purchase, sale, import inter-State, export inter-State, use or consumption of manufactured drugs other than prepared opium and of coca leaf and any preparation containing any manufactured drug;

(vi) the manufacture and possession of prepared opium from opium lawfully possessed by an addict registered with the State Government on medical advice for his personal consumption:

Provided that save in so far as may be expressly provided in the rules made under sub-clauses (iv) and (v), nothing in section 8 shall apply to the import inter-State, export inter-State, transport, possession, purchase, sale, use or consumption of manufactured drugs which are the property and in the possession of the Government.

Provided further that such drugs as are referred to in the preceding proviso shall not be sold or otherwise delivered to any person who, under the rules made by the State Government under the aforesaid sub-clauses, is not entitled to their possession;

CRM M-9327 of 2012 & 20 connected cases 49

(b) prescribe any other matter requisite to render effective the control of the State Government over any of the matters specified in clause (a).

(2) In particular and without prejudice to the generality of the foregoing power, such rules may

(a) empower the State Government to declare any place to be a warehouse wherein it shall be the duty of the owners to deposit all such poppy straw as is legally imported inter-State and is intended for export inter-

State or export from India; to regulate the safe custody of such poppy straw warehoused and the removal of such poppy straw for sale or export inter-State or export from India; to levy fees for such warehousing and to prescribe the manner in which and the period after which the poppy straw warehoused shall be disposed of in default of payment of fees;

(b) provide that the limits within which licences may be given for the cultivation of any cannabis plant shall be fixed from time to time by or under the orders of the State Government;

(c) provide that only the cultivators licensed by the prescribed authority of the State Government shall be authorised to engage in cultivation of any cannabis plant;

(d) require that all cannabis, the produce of land cultivated with cannabis plant, shall be delivered by the cultivators to the officers of the State Government authorised in this behalf;

(e) empower the State Government to fix from time to time, the price to be paid to the cultivators for the cannabis delivered;

(f) prescribe the forms and conditions of licences or permits for the purposes specified in sub-clauses (i) to

(vi) of clause (a) of sub-section (1) and the authorities by CRM M-9327 of 2012 & 20 connected cases 50

which such licences or permits may be granted and the fees that may be charged therefor.

21. Punishment for contravention in relation to manufactured drugs and preparations.-Whoever, in contravention of any provision of this Act or any rule ororder made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses anymanufactured drug or any preparation containing any manufactured drug shall bepunishable,

(a) where the contravention involves small quantity, with rigorous imprisonmentfor a term which may extend to six months, or with fine which may extend toten thousand rupees, or with both;

(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to two years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

22. Punishment for contravention in relation to psychotropic substances. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter- State, exports inter-State or uses any psychotropic substance shall be punishable, CRM M-9327 of 2012 & 20 connected cases 51

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

23. Punishment for illegal import in to India, export from India or transhipment of narcotic drugs and psychotropic substances.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorization issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment- for a term which may extend to ten years, and with fine; which may extend to one lakh rupees;

CRM M-9327 of 2012 & 20 connected cases 52

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

26. Punishment for certain acts by licensee or his servants.-If the holder of any licence, permit or authorisation granted under this Act or any rule or order made thereunder or any person in his employ and acting on his behalf

(a) omits, without any reasonable cause, to maintain accounts or to submit any return in accordance with the provisions of this Act, or any rule made thereunder;

(b) fails to produce without any reasonable cause such licence, permit or authorisation on demand of any officer authorised by the Central Government or State Government in this behalf;

(c) keeps any accounts or makes any statement which is false or which he knows or has reasons to believe to be incorrect; or

(d) wilfully and knowingly does any act in breach of any of the conditions of licence, permit or authorisation for which a penalty is not prescribed elsewhere in this Act, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

27. Punishment for consumption of any narcotic drug or psychotropic substance.- Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,-

(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may CRM M-9327 of 2012 & 20 connected cases 53

be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and

(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause

(a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.

27 A. Punishment for financing illicit traffic and harbouring offenders.-Whoever indulges in financing, directly or indirectly, any of the activities specified in sub- clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

28. Punishment for attempts to commit offences.- Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.

29. Punishment for abetment and criminal conspiracy.-(l) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the CRM M-9327 of 2012 & 20 connected cases 54 Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which (a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.

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 Drugs and Cosmetics Act, 1940 or the rules made thereunder."

Re: Question No.(i)

The learned counsel for the parties raised an argument

that even assuming that the prosecution proves the charge that the

accused were found in possession of contraband, even then, the

accused could be convicted only under Section 21(a) of the NDPS Act

and not either under Section 21(b) or under Section 21(c) of the said

Act. This argument is based on the fact that out of the total quantity

of the contraband allegedly seized from the accused, if it was not

found out as to what was the exact quantity of Narcotic Drug or

psychotropic substance in the mixture then it shall be taken as small

quantity. It is, therefore, contended that it should be held that the

quantity of Narcotic Drug found in the mixture is only a small CRM M-9327 of 2012 & 20 connected cases 55

quantity, as defined in Section 2(xxiiia) and not a commercial

quantity, as defined in Section 2(viia) of the NDPS Act.

In order to substantiate the said contention, the learned

counsel appearing for the petitioner(s) had relied on two Judgments

of the Hon'ble Supreme Court. The first one was E. Micheal Raj vs.

Narcotic Control Bureau reported in 2008 (5) SCC 161. That

was a case, where the accused therein was found in possession of a

total quantity of contraband weighing 4.07 Kilograms. A chemical

analysis (hereinafter referred to as the Pure Content) was conducted

and it was found that 1.4% and 1.6% respectively in two samples

were found to be heroin. Based on the said percentage, the total

quantity of heroin found in the contraband was calculated at 61.05

grams. On the said conclusion, the Hon'ble Supreme Court has held

that the possession of 61.05 grams of heroin would fall below the

commercial quantity, as defined in Section 2(viia) of the NDPS Act, as

notified by the Central Government. The Hon'ble Supreme Court has

also concluded that obviously, 61.05 grams of heroin cannot be

stated to be a small quantity in view of the notification, [as per the

notification issued by the Central Government dated 19.10.2001 in

S.O.No.1055(E), up to 5 grams, heroin is a small quantity and more

than 250 grams is commercial quantity]. Accordingly, the Hon'ble

Supreme Court held that the accused was found in possession of

heroin, which was neither a small quantity nor a commercial quantity

and it was an intermediate quantity. Accordingly, the Hon'ble

Supreme Court convicted the accused under Section 21(b) of the

NDPS Act. In other words the quantity of Narcotic Drug or

Psychotropic Substance, which is neither a commercial quantity nor a CRM M-9327 of 2012 & 20 connected cases 56

small quantity, is referred to either intermediate quantity or as an in

between quantity.

The other Judgment relied on by the learned counsel for

the petitioners was State of NCT of Delhi v. Ashif Khan @ Kalu

reported in AIR 2009 SC 1977. In the said Judgment, the Hon'ble

Supreme Court had an occasion to refer to E. Micheal Raj's case

(supra) and yet another Judgment of Ouseph v. State of Kerala

reported in 2004 (4) SCC 446. In Ouseph's case (supra), the

Hon'ble Supreme Court in Paragraph No.8 has held as follows:

"The question to be considered by us is whether the

psychotropic substance was in a small quantity and if so,

whether it was intended for personal consumption. The

words small quantity have been specified by the Central

Government by the notification dated 23-7-1996. Learned

counsel for the State has brought to our notice that as per

the said notification small quantity has been specified as 1

gram. If so, the quantity recovered from the petitioner is

far below the limit of small quantity specified in the

notification issued by the Central Government. It is

admitted that each ampoule contained only 2 ml and each

ml contains only 3 mg. This means the total quantity

found in the possession of the appellant was only 66 mg.

This is less than 1/10th of the limit of small quantity

specified under the notification."

In Ashif Khan @ Kalu's case (supra) the Hon'ble

Supreme Court followed the dictum laid down in E.Micheal Raj's

case and Ouseph's case, cited supra.

CRM M-9327 of 2012 & 20 connected cases 57

Relying on these Judgments of the Hon'ble Supreme

Court, it is contended by the learned counsel for the petitioner(s) that

it is absolutely necessary that Pure Content should be the exact

quantity of Narcotic Drug or psychotropic substance, in the total

quantity of contraband seized, which is a mixture of Narcotic Drug

and Psychotropic, a neutral substance and other salt. Since the same

was not done, it should be construed that the quantity of respective

contraband contained in the total weight was only a small quantity,

and therefore, the petitioners should be released on bail.

Learned counsel for the petitioner(s) have further relied

upon following decisions of this Court: -

1. Criminal Revision No.848 of 2004 titled as `Bal Kishan

alias Diwan Chand Vs. State of Punjab' decided on

30.05.2011.

2. Criminal Revision No.274 of 2004 titled as `Sukhdev

Singh Vs. State of Punjab' decided on 25.05.2011.

3. Criminal Revision No.281 of 2004 titled as `Kismat

Singh Vs. State of Punjab' decided on 25.05.2011.

4. Criminal Revision No.359 of 2004 titled as `Gurmit

Singh Vs. State of Punjab' decided on 25.05.2011.

5. Criminal Revision No.592 of 2004 titled as `Kulwant

Singh Vs. State of Punjab' decided on 24.05.2011.

6. Criminal Revision No.765 of 2003 titled as `Ramesh

Kumar Vs. State of Punjab' decided on 30.05.2011.

7. Criminal Revision No.975 of 2004 titled as `Gurmit

Singh Vs. State of Punjab' decided on 25.05.2011. CRM M-9327 of 2012 & 20 connected cases 58

8. Criminal Revision No.1603 of 2004 titled as `Pradeep

Singh Vs. State of Punjab' decided on 30.05.2011.

9. Criminal Revision No.1844 of 2006 titled as `Kashmir

Singh Vs. State of Punjab' decided on 23.05.2011.

10. Criminal Misc. No.M-24461 of 2003 titled as `Krishan

Kumar and others Vs. State of Punjab' decided on

26.05.2011.

11. Criminal Misc. No.M-39939 of 1999 titled as `Vinod

Kumar Vs. State of Punjab' decided on 26.05.2011.

12. Criminal Misc. No.M-42734 of 2000 titled as `Tejinder

Singh alias Montu Vs. State of Punjab' decided on

26.05.2011.

13. Criminal Misc. No.M-58535 of 2006 titled as `Mukesh

Kumar and others Vs. State of Punjab' decided on

30.05.2011.

14. Criminal Misc. No.M-81024 of 2006 titled as `Major

Singh Vs. State of Punjab' decided on 24.05.2011.

15. Criminal Revision No.96 of 2004 titled as `Ajaib Singh

Vs. State of Punjab' decided on 24.05.2011.

Besides the above, the following judgments have also

been cited by the learned counsel for the petitioner(s): -

1. Rajeev Kumar v. State of Punjab, 1997(4) R.C.R.

(Criminal) 846;

2. Deep Kumar v. State of Punjab, 1997(2) R.C.R. (Criminal)

417;

3. Leela Ram v. State of Punjab, 2002(3) R.C.R. (Criminal)

805;

CRM M-9327 of 2012 & 20 connected cases 59

4. Gurdarshan Pal v. State of Punjab, 2003(2) R.C.R.

(Criminal) 593;

5. Mohinder Singh v. State of Punjab, 2001(1) R.C.R.

(Criminal) 503;

6. Baljit Singh v. State of Punjab, 2002(4) R.C.R. (Criminal)

664;

7. Mohmed Salim v. State of Haryana, 2008(2) R.C.R.

(Criminal) 128; and

8. Sewak Singh v. State of Punjab, 1998(4) R.C.R.

(Criminal) 832.

In reply, the learned State counsel relied on judgments of

this Court rendered by different Hon'ble Judges, wherein, in cases

where no Pure content was separately calculated and found in the

total quantity of contraband as intermediate quantity. Judgments are

as follows:

1. Crl. Misc. No.M-35827 of 2010 titled as `Amarjit Singh

alias Goldy Vs. State of Punjab and another' decided on

26.05.2011.

2. Crl. Appeal No.512-DB of 2006 titled as `Gurmail Singh

alias Gela Vs. The State of Punjab' decided on 25.09.2009.

CRM-M-20589-2011 (O&M) [ 19 ] and other connected

cases

3. Shaji Vs. Kerala State, 2004(4) R.C.R. (Criminal) 643.

4. Crl. Misc. No.M-14115 of 2009 titled as `Kashmir Chand

son of Mathura Dass and another Vs. Central Bureau of

Investigation' decided on 27.04.2010.

CRM M-9327 of 2012 & 20 connected cases 60

In Amarjit Singh alias Goldy's case (supra), the

accused was found in possession of 1 Kg. 250 grams of Mandrax

Diphenoxylate which is mentioned at Sr. No.44 of the Table appended

to the Act inserted as a consequence of Central Act No.9 of 2001 in

which small quantity is 2 grams and the commercial quantity is 50

grams or above. The accused sought bail on the ground that as per

Chemical Examination report, the percentage of Diphenoxylate was

1.493% which falls within the definition of "non-commercial quantity". In support of his case, the accused had relied upon 3 decisions of the

Supreme Court in the case of E. Micheal Raj v. Intelligence

Officer, Narcotic Control Bureau, (2008) 5 SCC 161, Ouseph v.

State of Kerala, (2004) 4 SCC 446 and Samiullaha v.

Superintendent, Narcotic Central Bureau, 2008 (16) Supreme

Court Cases 471. It was also tried to be argued that the notification

dated 18.11.2009 has the effect of nullifying the judgments of the

Supreme Court rendered in E. Micheal Raj's case (supra) and

other cases referred to above, but this Court, while deciding Amarjit

Singh alias Goldy's case (supra) upheld the notification and

observed that the notification is prospective in nature and could be

used to alter or neutralize the judgment.

Similarly, in Gurmail Singh alias Gela's case (supra),

the issue was as to whether the total weight of the recovered opium

(10 Kgs.) was to be considered or the pure drug content (5.1%). It

was argued that after taking into consideration the percentage of

pure content, the weight of the narcotic would be around 500 grams

which is less than the commercial quantity. However, the Division

Bench of this Court has held that the entire mixture is to be seen and CRM M-9327 of 2012 & 20 connected cases 61

not the pure drug content. It was also observed that "notorious

criminals add neutral material in the opium/heroin with a view to

increase profit, the criminals do not mention purity of

morphine/heroin content and other chemicals in the contraband. If by

adding neutral material, criminals, in order to satisfy their greed, can

increase the bulk to get profit, then why they should not be punished

by treating the neutral material as part of the contraband recovered".

In Shaji's case (supra), the question was whether the

natural or pure ingredient of Buprenorphine or the entire content of

the preparation is to be seen. It was observed that the definition of

psychotropic substance takes in not only the substance in its pure and

natural form, but the entire preparation or solution containing the

psychotropic substance as well. It was further observed that Section 2

(xxiii) defines "psychotropic substance" which includes preparation of

substance and the term "preparation" is defined under Section 2(xx)

of the Act. It was observed that Buprenorphine is at item No.92 of the

Schedule to the Act and according to the accused, each of the

ampules contained 0.3 mg. of Buprenorphine dissolved in water. It

was held that it is the entire solution of Buprenorphine which is to be

taken into consideration being "preparation of psychotropic

substance" and not only the drug content.

In CRR-1844-2006, CRM-M-42734-2000, Rajeev

Kumar's case (supra), Deep Kumar's case (supra) and Sewak

Singh's case (supra), the view has been taken that the pure drug

content is to be seen which has been found less than the prescribed

limit, whereas after coming into force of the notification dated

18.11.2009, the pure drug content has not to be seen but the entire CRM M-9327 of 2012 & 20 connected cases 62

mixture or solution of the drug is to be weighed for the purpose of

deciding the weight by applying notification dated 19.10.2001 by

which small and commercial quantity has been determined.

In the decisions of this Court relied upon by learned

counsel for the petitioner(s) in cases CRR 848 of 2004, CRR 274 of

2004, CRR 359 of 2004, CRR 592 of 2004, CRR 765 of 2003,

CRR 975 of 2004, CRR 1603 of 2004, CRM-M 24461 of 2003,

CRM-M 39939 of 1999, CRM 58535 of 2006 & CRM-M 81024 of

2006 (supra), the basic issue was that if a person is not having valid

license to stock and sell the drugs containing psychotropic substance,

then he would commit an offence under the provisions of the Drugs &

Cosmetics Act, 1940 and not an offence under the NDPS Act. In this

regard, it would be pertinent to mention here that in Kashmir Chand

son of Mathura Dass and another's case (supra), this Court has

dealt with in detail with various provisions of both the Acts and has

held that

"Now the question arises where a person has a valid

license under the D&C Act, 1940 and the Rules framed

thereunder would, merely because he is holding a license,

be immune from the applicability of the provisions of the

NDPS Act, 1985 and the Rules framed thereunder. It is

not disputed by the petitioners that the Buprenorphine is

a psychotropic substance. What has been contended by

them is that since the petitioners possessed a valid license

under the D&C Act, 1940 and the Rules framed

thereunder on the date when the raid was conducted,

they were entitled to possess the same and mere CRM M-9327 of 2012 & 20 connected cases 63

possession of the said psychotropic substance would not

amount to an offence under the NDPS Act. Section 80 of

the NDPS Act, 1985 provides that the provisions of the Act

and the Rules made thereunder are in addition to and not

in derogation of the D&C Act, 1940 or the Rules made

thereunder. Even if it is said that obtaining of a license

under the D&C Act and the Rules framed thereunder

provides protection from the rigors of the applicability of

the NDPS Act as provided under Rules 65 to 67 of the

NDPS Rules, 1985 but still for claiming protection under

the D&C Act, 1940 and the Rules framed there under, the

requirement of the license and the conditions imposed

under the provisions of the D&C Act and the Rules framed

thereunder have to be complied with. The umbrella of

protection under the D&C Act and the Rules framed

thereunder vanishes, the moment the provisions

contained under the said Act and the Rules are not

complied with or infringed or violated by the holder of the

license. Merely holding a license under the D&C Act and

the Rules framed thereunder does not provide an

immunity from the rigors of the applicability of the NDPS

Act and the Rules framed thereunder. The conditions of

license have to be complied with. The petitioners have

violated Rule 65(4) of the D&C Rules, 1945 as under this

Rule, record of purchase of a drug intended for sale or

sold by retail, is mandated to be maintained by the

licensee and such record has to show the particulars, as CRM M-9327 of 2012 & 20 connected cases 64

have been mentioned in the said Rule. The licensee is

mandated to maintain the purchase bills including cash or

credit memos which the petitioners have failed to

maintain. The petitioners have also violated the provisions

of Section 65(5)(3) of the D&C Rules, 1945. By violating

the conditions of the license, the protection provided

under the D&C Act, 1940 and the Rules framed

thereunder vanishes and the licensee is open to the rigors

of the NDPS Act and the Rules framed thereunder.

Counsel for the petitioners has very fairly stated that the

petitioners do not possess any purchase bills nor do they

have any explanation as to how these drugs came in their

possession".

Thus, it was finally observed that:

"in view of the above observations of the Hon'ble

Supreme Court since the petitioners have violated the

terms of license issued to them under the D&C Act, 1940

and the Rules framed thereunder, the provisions

contained under the NDPS Act would apply and if an

offence is committed by them in violation of the provisions

of the NDPS Act and the Rules framed thereunder, the

petitioners are liable to be prosecuted for the said

offences. It cannot be disputed that if the protection as

provided under Rules 65 to 67 of the NDPS Rules to the

license holders under the D&C Act, 1940 and the Rules

framed thereunder goes, the provisions of the NDPS Act,

1985 and the Rules would take over in toto and for any CRM M-9327 of 2012 & 20 connected cases 65

act done in violation of the provisions of the NDPS Act,

1985 and the Rules framed thereunder, the offence would

be made out, which in the present case is clearly made

out as the petitioners were found in possession of 19270,

2ml ampoules of Buprenorphine batch No.1451

manufactured by M/s Global Labs, Mohali, Punjab, as the

petitioners failed to produce any bill/invoice in support of

the purchase of the above-said injections".

In CRR-281-2004 and CRM-M-96-2004 (supra), this

Court has held that Buprenorphine Hydrochloride is not a

psychotropic substance, whereas in Kashmir Chand son of

Mathura Dass and another's case (supra) it has been held that "a

perusal of the above provisions and especially Section 2(xxiii) of the

Act with reference to the Schedule attached to the Act leaves no

manner of doubt that Bup-norphine is a psychotropic substance".

Insofar as the judgments rendered in Leela Ram's case

(supra), Gurdarhan Pal's case (supra), Mohinder Singh's case

(supra) Baljit Singh's case (supra) and Mohmed Salim's case

(supra) are concerned, these decisions are not of any help to the

petitioners(s) as in none of these cases, the question involved here-

in-above has been answered.

In view of the above, it was held that the notification

dated 18.11.2009 is applicable prospectively and the entire drug

content, solution or mixture is to be seen and not only the pure drug

content of the narcotic/psychotropic substance and if it is found to be

more than commercial quantity, then the rigour of Section 37 of the

Act would apply.

CRM M-9327 of 2012 & 20 connected cases 66

The sum and substance of the arguments raised by

learned counsel for the petitioner(s) is that in case of seizure of

Narcotic Drugs and Psychotropic Substance, the Court is to rely upon

the report of the Chemical Examiner in order to find out the pure drug

content per dosage and if it is found to be below the exempted limit,

then the petitioner(s) are entitled to bail as it would not fall within the

definition of "commercial quantity" which could attract the rigours of

Section 37 of the NDPS Act.

In order to appreciate the respective submissions made

by learned counsel for the parties, it would be appropriate to refer to

the amendment dated 18.11.2009. Earlier the notification

No.S.O.1055 (E) dated 19.10.2001 was issued in terms of Clause (vii-

a) and (xxiii-a) of Section 2 of the Act by which "small quantity" and

"commercial quantity" of each of the substance was stipulated. The

said notification did not introduce a new psychotropic substance other

than those mentioned in the Schedule to the Act as the intention of

the notification was only to prescribe small and commercial quantity

of psychotropic substances by maintaining its statutory definition.

However, by notification No.S.O.2941(E) dated 18.11.2009, the

amendment was brought in the notification dated 19.10.2001 and in

the Table at the end after Note 3, the following Note was added: -

"(4) The quantities shown in column 5 and column 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

substances of that particular drug in dosage form or

isomers, esters, ethers and salts of these drugs, including CRM M-9327 of 2012 & 20 connected cases 67

salts of esters, ethers and isomers, wherever existence of

such substance is possible and not just its pure drug

content."

In view of the analysis of the Judgments of the Hon'ble

Supreme Court in E.Micheal Raj's and Ashif Khan @ Kalu's cases

(supra) as well as the above cited judgments in the absence of Pure

content, the exact quantity of Narcotic Drug/Psychotropic Substance

contained in the contraband cannot be ascertained. In the absence of

quantity/exact percentage of narcotic drug in Chemical Analysis

report, in the considered opinion of this Court, it cannot be taken as

in-between quantity.

Therefore, this Court is of the view that in the absence of

exact quantity/percentage in the seized contraband, it should be

taken as "small quantity".

Before coming into force of Amending Act 09/2001, the

quantum of Narcotic Drug/Psychotropic Substance was immaterial for

the purpose of deciding the quantum of punishment. The provisions of

NDPS Act were amended by the Amending Act 09/2001 with effect

from 02.10.2001, which rationalized the punishment structure under

the NDPS Act by providing graded sentences linked to the quantity of

Narcotic Drugs or Psychotropic Substances carried. Sections 2(viia)

and 2(xxiiia) of the NDPS Act were introduced defining the

expressions 'commercial quantity' and "small quantity", which read as

follows:-

"Commercial quantity" in relation to narcotic drugs and

psychotropic substances, means any quantity greater than

the quantity specified by the Central Government by CRM M-9327 of 2012 & 20 connected cases 68

notification in the Official Gazatte and "small quantity", in

relation to narcotic drugs and psychotropic substances

means any quantity lesser than the quantity specified by

the Central Government by notification in the Official

Gazette."

Sections 15, 17, 18, 20, 21, 22, 23 and 25 of the NDPS

Act were also amended suitably providing graded sentences

depending upon the quantity of the Narcotic Drug/Psychotropic

Substance involved in the crime. For the purpose of brevity, let us

now refer to the amended Section 21 alone, which reads as follows:-

"21. Punishment for contravention in relation to manufactured drugs and preparations.- whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchase, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity, lesser than commercial quantity, but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and shall also be liable to fine which shall be less than one lakh rupees but which may extend to two lakh rupees.

CRM M-9327 of 2012 & 20 connected cases 69 In exercise of the power conferred by the clauses 2(viia)

and 2(xxiiia) of the NDPS Act, the Central Government has issued a

notification dated 19.10.2001 in S.O.No.1055(E), thereby specifying

the quantity mentioned in column Nos.5 and 6 of the Table in the

notification in relation to the Narcotic Drug and Psychotropic

Substance mentioned in the corresponding entry in column Nos.2 to 4

of the said Table as the small quantity and commercial quantity

respectively for the purposes of the said clauses of that Section. Entry

56 in the said Table, relates to heroin and Entry 239 relates to

mixture or preparations. Any mixture or preparation that of with or

without a neutral material, of any of the drugs.

While deciding the relevant clause of Section 21, under

which the accused should be punished, in terms of the above

definitions, and in the light of the above notification issued by the

Central Government, in E.Micheal Raj's case (supra) the Hon'ble

Supreme Court held that it is absolutely necessary for the prosecution

to prove as to what exactly was the quantity of heroin contained in

the contraband [powder] seized from the possession of the accused. As in E.Micheal Raj's case (supra) a test, known Pure Content test

should be conducted, by which the percentage of the heroin found in

the samples was found out, from which the total quantity of heroin in

the contraband was calculated, based on which it was easily

concluded that the accused was found in possession of heroin, which

was an intermediate quantity". The Hon'ble Supreme Court,

ultimately, in Paragraph No.4, in E.Micheal Raj's case (supra) held

as follows:-

CRM M-9327 of 2012 & 20 connected cases 70

"4. The accused-appellant was charged with the offence

committed under Section 8(c) read with Sections 21 and

29 of the NDPS Act by the Intelligence Officer, Narcotic

Control Bureau. The Special Judge for Trial of cases under

the NDPS Act found that the substance found in

possession of the accused was an opium derivative which

has been defined under Section 2(xvi), and under Section

2(xvi)(e) a preparation, containing more than 0.2% of

morphine or diacetylmorphine, is an opium derivative;

and that since this contraband article contained 1.4% and

1.6% heroin it is an opium derivative, and punishable

under Section 21 of the NDPS Act. Since the

manufactured drug being carried weighed 4.07 kg., it

would come under Section 21(c) being a commercial

quantity, but since the accused is only a carrier and is not

the beneficiary of the transaction, he would not be

awarded the maximum sentence and would be awarded

the minimum sentence of 10 years rigorous imprisonment

and a fine of rupees one lakh, in default of payment of

fine rigorous imprisonment for one more year.

As already noted above, the said Judgment in E.Micheal

Raj's case (supra) came to be referred to by the Hon'ble Supreme

Court in a subsequent Judgment in State of NCT of Delhi v. Ashif

Khan @ Kalu reported in AIR 2009 SC 1977, wherein the Hon'ble

Supreme Court, after referring to yet another Judgment of the

Hon'ble Supreme Court in Ouseph v. State of Kerala reported in

2004 (4) SCC 446, has followed the ratio laid down in E.Micheal CRM M-9327 of 2012 & 20 connected cases 71

Raj's case (supra). From the above Judgments of the Hon'ble

Supreme Court, it is crystal clear that the law has got catalyzed that

in order to punish an accused for any offence involving a Narcotic

Drug or Psychotropic Substance, as the case may be, it is absolutely

necessary for the prosecution to prove the exact quantity of Narcotic

Drug or Psychotropic Substance in the total quantity of the

contraband seized from the accused after notification dated

19.10.2001 so as to punish the accused under the appropriate penal

provision.

Very recently, in Harjit Singh vs. State of Punjab

reported in (2011) 4 SCC 441, the Hon'ble Supreme Court had an

occasion to consider the Judgment in E.Micheal Raj's case (supra).

That was a case, where the accused was allegedly found in

possession of 7.10 kilograms of opium. Two samples of 10 grams

[each] of opium were taken. According to the Purity Test conducted,

it was found that it contained 0.8% of morphine. Based on the said

estimation, it was contended before the Hon'ble Supreme Court that

out of the total quantity of the contraband weighing 7.5 kilograms,

the morphine content was only 56.96 gms, which, according to the

accused, was an intermediate quantity. Therefore, it was contended

before the Hon'ble Supreme Court that as per E.Micheal Raj's case

(supra), the accused should be convicted only under Section 21(b) of

the NDPS Act for having found in possession of the intermediate

quantity of opium. But, the Hon'ble Supreme Court did not agree with

the said contention of the accused. The Hon'ble Supreme Court, after

referring to the definition of opium, as found in Section 2(xv) of the

NDPS Act and the notification issued by the Central Government, in CRM M-9327 of 2012 & 20 connected cases 72

Paragraph Nos.15, 16, 17, 21, 22, 23 and 24 of the said Judgment in

Harjit Singh's case (supra), held as follows:-

"15. Opium is essentially derived from the opium poppy

plant. The opium poppy gives out a juice which is opium.

The secreted juice contains several alkaloid substances

like morphine, codeine, thebaine, etc. Morphine is the

primary alkaloid in opium.

16. Opium is a substance which once seen and smelt

can never be forgotten because opium possesses a

characteristic appearance and a very strong and

characteristic scent. Thus, it can be identified without

subjecting it to any chemical analysis. It is only when

opium is in a mixture so diluted that its essential

characteristics are not easily visible or capable of being

apprehended by the senses that a chemical analysis may

be necessary. In case opium is not mixed up with any

other material, its chemical analysis is not required at all.

Of course, an analysis will always be necessary if there is

a mixture and the quantity of morphine contained in

mixture has to be established for the purpose of definition

(of opium under the Opium Act). (Vide: Baidyanath

Mishra v. State of Orissa, 1968 (34) CLT 1 (SC); and

State of Andhra Pradesh v. Madiga Boosenna, AIR 1967

SC 1550). [Emphasis supplied].

17. However, the aforesaid cases have been decided

under the Opium Act and cannot be the authority so far

as deciding the cases under the NDPS Act. Thus, chemical CRM M-9327 of 2012 & 20 connected cases 73

analysis of the contraband material is essential to prove a

case against the accused under the NDPS Act.

21. In the instant case, the material recovered from the

petitioners was opium. It was of a "commercial quantity"

and could not have been for personal consumption of the

petitioner. Thus, the appellant being in possession of the

contraband substance had violated the provisions of

Section 8 of the NDPS Act and was rightly convicted

under Section 18(b) of the NDPS Act. The instant case

squarely falls under clause (a) of Section 2(xv) of the

NDPS Act and Clause (b) thereof is not attracted for the

simple reason that the substance recovered was opium in

the form of the coagulated juice of the opium poppy. It

was not a mixture of opium with any other neutral

substance. There was no preparation to produce any new

substance from the said coagulated juice. For the purpose

of imposition of punishment if the quantity of morphine in

opium is taken as a decisive factor, Entry No.92 becomes

totally redundant.

22. Thus, as the case falls under clause (a) of Section 2

(xv), no further consideration is required on the issue.

More so, opium derivatives have to be dealt with under

Entry No.93, so in case of pure opium falling under clause

(a) of Section 2(xv), determination of the quantity of

morphine is not required. Entry No.92 is exclusively

applicable for ascertaining whether the quantity of opium CRM M-9327 of 2012 & 20 connected cases 74

falls within the category of small quantity or commercial

quantity.

23. The judgment in E. Micheal Raj (Supra) has dealt with

heroin i.e., Diacetylmorphine which is an Opium

Derivative within the meaning of the term as defined in

Section 2(xvi) of the NDPS Act, and therefore, a

`manufactured drug' within the meaning of Section 2(xi)

(a) of the NDPS Act. As such the ratio of the said

judgment is not relevant to the adjudication of the

present case. Ultimately, referring to the above facts, the

definitions in respect of the opium and the other relevant

provisions, the Hon'ble Supreme Court distinguished the

ratio in E.Micheal Raj's, case and in Paragraph No.24 of

the said Judgment held as follows:-

24. In Amarsingh Ramjibhai Barot v. State of Gujarat,

(2005) 7 SCC 550, this Court dealt with a case where the

black-coloured liquid substance was taken as an opium

derivative. The FSL report had been to the effect that it

contained 2.8% anhydride morphine, apart from pieces of

poppy (Posedoda) flowers. This was considered only for

the purpose of bringing the substance within the sweep of

Section 2(xvi)(e) as `opium derivative' which requires a

minimum 0.2% morphine."

Thus, a close reading of the above Judgment of the

Hon'ble Supreme Court in Harjit Singh's case (supra) would make it

abundantly clear that if the contraband is opium falling within the

definition of Section 2(xv)(a) of the NDPS Act, then, the total quantity CRM M-9327 of 2012 & 20 connected cases 75

of morphine contained in the contraband need not be estimated, per

contra, it would be suffice, if it is proved that it is opium. In case it is

a mixture or preparation with or without any neutral material of the

juice and poppy falling within the definition of the opium as made in

Section 2(xi)(b) of the NDPS Act i.e. a manufactured drug, then, it is

not absolutely necessary for the prosecution, by conducting Pure

Content test, to find out that the morphine content was more than

0.2%. Therefore, in deciding the case involving opium, there may not

be any difficulty henceforth, in view of the Judgment of the Hon'ble

Supreme Court in Harijit Singh's case (supra). Thus, it is crystal

clear that the law laid down in E.Micheal Raj's case (supra), case is

not applicable to the opium and its derivates cases in the event the

contraband falls within the definition of Section 2(xv(a)) and 2(xv(b))

of the NDPS Act.

In the case of heroin, there can be no doubt that it is a

manufactured drug, as defined in Section 2(xi) of the NDPS Act. As

per the Notification issued by the Central Government dated

19.10.2001, heroin is found in entry 56. The chemical name of the

same, as per the said notification, is diacetyl morphine; The

notification further states that if diacetyl morphine is found to be not

more than 5 grams, it is a "small quantity" and if it is found to be

greater than 250 grams, it is a "commercial quantity". Entry 239 of

the notification deals with any mixture or preparation that of with or

without a neutral material of any of the above drugs.

From the above definition, it is crystal clear that if the

contraband seized is pure and simple, either narcotic drug or

psychotropic substances, falling within entries in the schedule, CRM M-9327 of 2012 & 20 connected cases 76

depending upon the weight of the drug / substance, it shall be

construed either as "commercial quantity" or as "small quantity" or

"non-commercial quantity", and accordingly, the accused will be

convicted and punished. Only in cases, where the contraband seized

is a mixture or preparation, with or without a neutral material, it is

necessary that as per E.Micheal Raj's case (supra), Purity Test

should be conducted to find out the exact quantity of the heroin or

any other Narcotic Drug or Psychotropic Substance, as the case may

be, in the mixture or preparation, to award appropriate conviction and

punishment. In E.Micheal Raj's case (supra), what was seized from

the accused was a powder weighing 4.07 kilograms. As per the report

of the quantitative test conducted by the Customs Laboratory,

Chennai, the samples were found to contain 1.4% and 1.6% of

morphine. Thus, as held by the Hon'ble Supreme Court, what was

seized from the accused was only a mixture containing morphine as

well as other substances. In such view of the matter, the Hon'ble

Supreme Court calculated the exact quantity of morphine content, on

the basis of the report and ultimately, held that it was not a

commercial quantity. In Harjit Singh's case (supra), since the

opium seized from the accused was not a mixture, the Hon'ble

Supreme Court has held that the dictum laid down in E.Micheal

Raj's case (supra), is not applicable.

From the above discussions, it is clear that if the

contraband seized from the accused is a mixture containing a Narcotic

Drug or a Psychotropic Substance, then, it is necessary that Pure

Content Test should be conducted in order to ascertain the exact

quantity of Narcotic Drug or Psychotropic Substance contained in the CRM M-9327 of 2012 & 20 connected cases 77

mixture. If the contraband seized from the accused is not a mixture

falling within sweep of entry 239, as held in Harjit Singh's case

(supra), there is no need to insist for Pure content Test. In my

considered opinion too, such Pure Content Test is not at all required

in the case of the contrabands, which does not fall within the sweep

of entry No.239 of the Notification of 19.10.2001. But in view of the

notification dated 17.11.2009 the entire content shall be taken into

consideration.

Now, after having analyzed the Judgments of the Hon'ble

Supreme Court and the Judgments of the learned Single Judges of

this Court , I am of the view that:-

If the contraband seized is a mixture or preparation, with

or without a neutral material of any of the drugs, falling

within the scope of entry No.239 of the Notification dated

19.10.2001, the exact quantity of Narcotic

Drug/Psychotropic Substance contained in the said

mixture or preparation, shall not be taken as the quantity

of Narcotic Drug/Psychotropic Substance. If the

contraband seized is neither a mixture nor a preparation

with or without a neutral material and if it is found to be a

Narcotic Drug/Psychotropic Substance simplicitor, then,

there is no need to hold any other test like, Pure Content

Test and it would be suffice that the prosecution has

proved that the contraband is a Narcotic

Drug/Psychotropic Substance and not a mixture or

preparation containing a Narcotic Drug/Psychotropic

Substance with or without a neutral material. In such CRM M-9327 of 2012 & 20 connected cases 78

cases, the weight of the entire quantity of Narcotic

Drug/Psychotropic Substance shall be taken into account

to decide as to whether the said quantity is a "small

quantity" or a "commercial quantity" or an "non-

commercial quantity" for the purposes of conviction and

sentence.

I am conscious of the fact that the Central Government

has issued yet another notification dated 18.11.2009, wherein the

Central Government has declared that in case of a mixture or

preparation with or without a neutral substance, the entire quantity of

mixture/preparation shall be decisive as to whether the Narcotic

Drug/Psychotropic substance is a "small quantity" or "commercial

quantity", as held in Harijit Singh's case, cited supra. The said

notification is only prospective in its operation. Therefore, in view of

the said notification, in respect of the offences committed on or after

18.11.2009, Pure Content Test need not be conducted and that the

ratio laid down in Michael Raj's case (supra) is not applicable to

such cases. The ratio in Michael Raj's case (supra) is applicable only

to the offences committed on or before 17.11.2009. The cases

against all the petitioners are after 17.11.2009.

In the result, answer to question No. (i) is as under:-

Re: Question No.(i)

i) As the contraband seized is either a mixture or a

preparation with or without a neutral material, of any

Narcotic Drug or Psychotropic Substance falling within the

scope of entry No.239 of the notification dated

19.10.2001 issued in S.O.No.1055(E) of the Central CRM M-9327 of 2012 & 20 connected cases 79

Government. It is absolutely necessary to conduct Pure

Content Test to ascertain the exact quantity of the

Narcotic Drug/Psychotropic Substance contained in the

said mixture or preparation. In the absence of Pure

Content Test, the whole contraband seized shall not be

considered as such. However, in all the cases resigtered

on or after 17.11.2009, there is no necessity to conduct

pure content test to ascertain the exact quantity of

Narcotic Drugs, Psychotropic Substances and

Manufactured Drugs. The whole contraband seized shall

be considered as such even if it comes within the

definition of Entry No. 239.

ii) In the case of a contraband, which is neither a mixture

nor a preparation falling within the sweep of entry No.239

and if the contraband is a Narcotic Drug/Psychotropic

Substance simplicitor, there is no need for Purity Test and

in such cases, the entire quantity of Narcotic Drug/

Psychotropic Substance shall be taken into consideration

for deciding as to whether the same is a small quantity or

a commercial quantity or an intermediate quantity for the

purpose of conviction and sentence will be imposed

accordingly.

Re: Question No.(ii):

It is contended by the learned counsel for the petitioners

that a wholesale drug dealer and retailer and their employees

possessing proper and valid licence for dealing in drugs, specified in

Schedule "C" and Schedule "C-1" as well as the drugs not specified in CRM M-9327 of 2012 & 20 connected cases 80

those schedules of the Drugs and Cosmetics Act and Rules framed

thereunder, cannot be held liable for any offence punishable under

the NDPS Act for having in their possession those drugs in question.

On the other hand, the learned Counsel for the State opposes the

prayer for bail and submitted that huge quantity of drugs referred

herein before, have been recovered along with other drugs from the

petitioners being their employees. It is further contended that

according to Section 80 of NDPS Act the provisions of this Act and the

rules made thereunder shall be in addition to and not in derogation of

Drugs and Cosmetics Act, 1940 or the rules made thereunder.

Therefore, even if a person possesses the drug licence under the

Drugs and Cosmetics Act, there is no bar to prosecute him under

N.D.P.S. Act, Rules and Order 1993 when such huge quantity of

narcotic drugs were found in his possession. The NDPS Act specifically

says that person possessing the drugs as mentioned in the Schedule

and Notifications cannot possess the same except according to the

provisions of the NDPS Act, Rules and Order 1993. Chapter-III

Prohibition, Control and Regulation of the NDPS Act clearly says that

no person shall produce, manufacture, possess, sell, purchase,

transport, warehouse, use, consume, import inter-state, 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 Order 1993 made thereunder

and in a case where any such provision, imposes any requirement by

way of license, permit or authorization that too will be in accordance

with this Act and Rules framed thereunder. The learned State counsel CRM M-9327 of 2012 & 20 connected cases 81

has made specific reference to Sections 8, 9, 9A and 10 of the NDPS

Act to contend that under the provisions of this Act, license is

necessary and the possession of the Narcotic Drugs and Psychotropic

Substances is prohibited.

I have considered the rival contentions of the learned

counsel for the parties. I have no doubt that in terms of Section 80 of

the NDPS Act, a person can very well be prosecuted both under the

N.D.P.S. Act as well as under the Drugs and Cosmetics Act, 1940

simultaneously for violation of the provisions of those Acts. Merely

because a person is prosecuted for violation of Drugs and Cosmetics

Act, 1940 that will not operate as a bar to prosecute him under the

provisions of the N.D.P.S. Act rather if the offences made out under

the Drugs and Cosmetics Act also come within the scope of the

provisions of NDPS Act such person shall also be prosecuted for

possession of the contrabands violating the provisions of the NDPS

Act. Both the Acts are independent. Violation of one Act does not

mean no violation of the other Act.

The contention of the learned Counsel for the petitioners

is that there is no provision for license and compliance of any

statutory requirements under the NDPS Act, Rules and Order 1993.

When a person deals in the aforesaid manufactured drugs/medicines

under a proper and valid license issued under the Drug and Cosmetics

Act, he is not required to comply with the provisons of N.D.P.S. Act,

Rules and Order 1993.

I have considered the contention of the learned counsel

for the petitioners. The same cannot be sustained for the reason that

Section 8(c) of NDPS Act specifically states "the possession in the CRM M-9327 of 2012 & 20 connected cases 82

manner and to the extent provided by this Act or the Rules or Order

made thereunder." Similar is the position with respect to Section 9

which refers to the power of the Central Government to permit

control and regulation. The said Section is subject to Section 8.

Section 9(1)(a)(v & vi) also refers to the provisions of this Act.

Section 9-A of the Act provides that if Central Government is of the

opinion that having regard to the use of any controlled substance

production or manufacture of any Narcotic Drug and Psychotropic

Substance, it is necessary or expedient so to do in the public interest

it may, by order, provide for regulating or prohibiting the production,

manufacture, supply and distribution thereof and trade and commerce

therein. Furthermore, Section 10 of the NDPS Act specifically provides

that the State Government can frame rules to permit, control and

regulation. Such rules will be subject to Section 8 of the NDPS Act.

The cumulative effect of all these provisions and the rules made

thereunder is that a person can possess the Narcotic Drugs and

Psychotropic Substances only if the same are permitted under the

NDPS Act. The words "the possession in the manner and to the extent

provided by this Act or the Rules or Orders made thereunder"

mentioned in Section 8 of the NDPS Act are significant and it certainly

means any possession of the Narcotic Drug and Psychotropic

Substance is only subject to the provisions of NDPS Act, Rules and

Order 1993. Furthermore, the reading of Rules 64, 65 and 66 of the

Rules makes the position very clear. The Rules 64 to 67-C of the

Narcotic Drugs and Psychotropic Substances Rules, 1985 are

reproduced below:-

CRM M-9327 of 2012 & 20 connected cases 83 "CHAPTER VII PSYCHOTROPIC SUBSTANCES

64. General prohibition .--No person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I.

65. Manufacture of psychotropic substances .--(1) Subject to the provisions of sub-rule (2), the manufacture of any of the psychotropic substances other than those specified in Schedule I shall be in accordance with the conditions of a licence granted under the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the 1945 Rules) framed under the Drugs and Cosmetics Act, 1940 (23 of 1940), by an authority in charge of drugs control in a State appointed by the State Government in this behalf:

Provided that the authority in charge of drug control in a State referred to above may issue a licence to manufacture a psychotropic substance specified in Schedule III for the purpose of export only. (2) The authority in charge of Drugs Control in a State (hereinafter referred to as the Licensing Authority) shall consult the Drugs Controller (India) in regard to the assessed annual requirements of each of the psychotropic substances in bulk form referred to in sub-rule (1) in the country and taking into account the requirement of such psychotropic substances in the State, the quantity of such substance required for supply to other manufacturers outside the State and the quantity of such substance required for reasonable inventory to be held by a manufacturer, shall specify, by order, the limit of the quantity of such substance which may be manufactured by the manufacturer in the State.

(3) The quantity of the said psychotropic substance which may be manufactured by a licensee in a year shall be CRM M-9327 of 2012 & 20 connected cases 84

intimated by the Licencing Authority to the licensee at the time of issuing the licence:

Provided that nothing contained in this rule shall apply in case the psychotropic substances specified in Schedule I are manufactured, possessed, transported, imported inter-State, exported inter-State, sold, purchased, consumed or used subject to other provisions of this Chapter which applies to psychotropic substances which are not included in Schedule I and for the purposes mentioned in Chapter VII-A:

Provided further that the authority in charge of the drug control in a State referred to in sub-rule (2) of rule 65 shall consult the Narcotics Commissioner before issuing a licence under rule 65 in respect of psychotropic substances included in Schedule I ][and Schedule III.

65A. Sale, purchase, consumption or use of psychotropic substances - No person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules.

66. Possession, etc., of psychotropic substances .--

(1) No person shall possess any psychotropic substance for any of the purpose covered by the 1945 Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under these Rules.

(2) Notwithstanding anything contained in sub-rule (1), any research institution, or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorised under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the CRM M-9327 of 2012 & 20 connected cases 85

said research institution or, as the case may be, the said hospital or dispensary or person:

Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time:

Provided further that an individual may possess the quantity of exceeding one hundred dosage units at a time but not exceeding three hundred dosage units at a time for his personal long term medical use if specifically prescribed by a Registered Medical Practitioner. (3) The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession.

67. Transport of psychotropic substances .--(1) Subject to the provisions of rule 64, no consignment of psychotropic substance shall be transported, imported inter-State or exported inter-State unless such consignment is accompanied by a consignment note in [Form 6] appended to these rules and in the manner as provided hereinafter.

(2) The consignment note referred in sub-rule (1) shall be prepared in triplicate, and the original and duplicate copies of the said note shall be sent alongwith the consignment of psychotropic substances to the consignee who shall return the duplicate copy of the note to the consignor for his use after endorsing on the original and duplicate copies the particulars of the receipt of the quantity consigned.

(3) The consignor shall make necessary entries on the triplicate copy of the said note with reference to the receipt of quantity of the psychotropic substances indicated on that duplicate copy of that note. (4) The consignor and consignee shall keep such consignment note for a period of two years and the said CRM M-9327 of 2012 & 20 connected cases 86

note may be inspected at any time by an officer authorised in this behalf by the Central Government:

Provided that consignment note in Form 6 shall not apply in cases where the sale of the psychotropic Substance is accompanied by a sale bill or invoice or cash memo or any other document duly signed by the consignor or his authorised signatory, which shall include the following information about the consignment:

(a) name, address and licence number of the consignor and the consignee;

(b) description, batch number and quantity;

(c) mode and particulars of transport:

Provided further that such document shall be preserved by consignor and consignee for a period of two years for inspection by the officers referred to in sub-rule (4) above.

Explanation --Where the consignee is a research institution, registered medical practitioner, hospital or dispensary, the requirement of incorporating licence number of consignee shall not be applicable. CHAPTER VII-A SPECIAL PROVISIONS REGARDING MANUFACTURE, POSSESSION, TRANSPORT, IMPORT-EXPORT, PURCHASE AND CONSUMPTION OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES FOR MEDICAL, SCIENTIFIC AND TRAINING PURPOSES. 67-A. Special provisions for medical and scientific purposes .-- Notwithstanding anything contained in the foregoing provisions of these rules--

(a) a narcotic drug and psychotropic substance may be used for--

(i) scientific requirements including analytical requirements of any Government laboratory or any research institution in India or abroad;

(ii) very limited medical requirements of a foreigner by a duly authorised person of a hospital or any other CRM M-9327 of 2012 & 20 connected cases 87

establishment of the Government especially approved by that Government;

(iii) the purpose of de-addiction of drug addicts by Government or local body or by an approved charity or voluntary organisation or by such other institution as may be approved by the Central Government.

(b) persons performing medical or scientific functions shall keep records concerning the acquisition of the substance and the details of their use in Form 7 of these rules and such records are to be preserved for at least two years after their (sic);

(c) a narcotic drug and psychotropic substance may be supplied or dispensed for use to a foreigner pursuant to medical prescription only from the authorised licensed pharmacists or other authorised retail distributors designated by authorities responsible for public health. 67-B (1) Notwithstanding anything contained in these rules, the Government Opium and Alkaloid Works may procure, manufacture or import and supply narcotic drugs and psychotropic substances as may be required as samples by various drug law enforcement agencies, testing laboratories and training institutions of the Central and State Governments.

(2) The Government Opium and Alkaloid Works may also supply samples to organisations other than those covered by sub-rule (1) with the prior approval of the Central Government.

(3) Any enforcement agency, laboratory, training institution or organisation requiring the samples shall apply to the Chief Controller of Factories in Form No. 8. (4) The quantities of various narcotic drugs and psychotropic substances to be supplied as samples shall be determined by the Central Government from time to time. The organisation obtaining the samples shall designate an officer, at the time of sending the request for samples, in whose custody the samples shall be kept. CRM M-9327 of 2012 & 20 connected cases 88

(5) The organisation requisitioning the samples shall maintain records and submit an annual report to the Chief Controller of Factories in Form No. 9.

(6) When a sample is used for training, the organisation shall maintain a record of the quantity of drug taken out for training and the quantities actually used. 67-C. Notwithstanding anything contained in these rules, the Narcotics Commissioner may permit import or export of narcotic drugs and psychotropic substances for the purpose of controlled deliveries, investigations, intelligence collection scientific analysis."

The reading of the above said rules makes it clear that

there is a general prohibition to sell, purchase, consume or use any

psychotropic substances specified in Schedule-I. In view of Rule 66 no

person shall possess any psychotropic substance for any of the

purposes covered by the 1945 Rules unless he is lawfully authorized

to possess such substance for any of the said purposes. The said

purposes are only medical and scientific purposes. Furthermore,

provisos to Rule 66(2) specifically state that how much quantity can

be retained if prescribed by a registered medical practitioner. In the

present cases, the petitioners have failed to show any such

prescription and the wholesaler and retailer and their employees

failed to show to this Court that they are authorized under the Act

and the Rules framed under the NDPS Act to possess the contrabands

in question. The quantity in possession of all the petitioners is more

than the prescribed limit in Rule 66 of NDPS Rules.

The Clauses 3 to 7 of the Narcotic Drugs and Psychotropic

Substances (Regulation of Controlled Substances) Order, 1993, are as

under:

CRM M-9327 of 2012 & 20 connected cases 89

"3. Manufacture, distribution, sale, imports, exports and consumption of controlled substance .--(1) Every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintain daily accounts of his activities in Form 1 and Form 2, as the case may be. The records of his activity shall be preserved for a period of two years from the date of last entry in the register.

(2) He shall report to the Director General, Narcotics Control Bureau, Wing No. 5, West Block-I, R.K. Puram, New Delhi-110066 immediately regarding any loss or disappearance of the controlled substances under his control. A copy of the report shall also be endorsed to the Zonal Director of the Narcotics Central Bureau within whose area of jurisdiction such loss or disappearance occurred.

4. Transport of controlled substance .--(1) A consignment of controlled substance shall be moved from one place to another place only when it is accompanied by a Consignment Note in Form 3.

(2) The Consignment Note shall be prepared in triplicate.

The original and duplicate copies of the Consignment Note shall be sent alongwith the consignment to the consignee, who shall return the duplicate copy to the consignor for retention after endorsing on the original and duplicate copies the particulars of quantity received by him.

(3) The consignor shall make necessary entries on the triplicate copy of the Consignment Note with reference to the receipt of the controlled substance indicated on the duplicate copy of the Consignment Note.

(4) In the case of any consignment of the controlled substance which is imported into India, such consignment from the port of entry to any warehouse or factory or business establishment or premise of the importer or CRM M-9327 of 2012 & 20 connected cases 90

consumer, as the case may be, shall be accompanied by a Bill of Entry.

(5) The Consignment Note or the Bill of Entry, as the case may be, shall be, preserved for a period of two years by the consignor and the consignee or importer, as the case may be.

(6) No transporter shall carry a consignment of controlled substance without a Consignment Note or Bill of Entry. (7) The transporter shall produce the Consignment Note or Bill of Entry, as the case may be, when required by an officer (being an officer superior in rank to a peon, sepoy or constable) of the department of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drug control, excise, police or any other department of a State Government including Union Territory Administration as is empowered in this behalf by general or special order of the State Government including Union Territory Administration authorised under this clause.

(8) Whenever controlled substances are transported by motorised tankers, all the inlets and outlets of the tankers shall be sealed with tamper-proof seals each of which shall have identifiable description. Such seal shall be affixed at the premises of the consignor and removed at the premises of the consignee. The description of tamper- proof seal affixed on the tanker shall be entered on the Consignment Note/Bill of entry with each consignment. No person shall use or possess any tamper-proof seal which has identifiable description on it identical to another tamper-proof seal.

(9) Whenever a consignment of controlled substance is transported from the area which comes within the CRM M-9327 of 2012 & 20 connected cases 91

jurisdiction of a Zonal Director of the Narcotics Control Bureau to an area which comes within the jurisdiction of another Zonal Director of the Narcotics Control Bureau, the consignor shall send a quarterly report to the latter Zonal Director in Form 6.

Explanation .--For the purposes of quarterly report under this clause, the area of jurisdiction of the Zonal Directors are the areas as specified in Form 4 of this order.

5. Selling of controlled substance .--Every person who sells a controlled substance to a buyer in a transaction shall sell so only after the buyer establishes his identity by production of a document like industrial licence or any registration certificate under any law or any other similar documents which establishes his identity and upon a declaration being made of the purpose for which the controlled substance is being purchased.

6. Labelling of consignments for export or import .

--Every container or vessel containing a controlled substance in a consignment for export or in a consignment which is imported shall be labelled prominently giving details of the name and quantity of the controlled substance, name and address of the exporter and importer and the consignee if any. The documents relating to the import or export of the controlled substance such as invoice, cargo manifests, customs, transport and shipping documents shall contain the details such as name of the controlled substance, quantity and the name and address of the consignee, exporter and the importer and the documents shall be preserved for a period of two years.

7. Filing of returns .--(1) Every person mentioned in clause 3 of this Order shall send a quarterly return by registered post in Form 4 or Form 5, as the case may be, to the concerned Deputy Director, Narcotics Control Bureau, whose address is given in the Form. The quarters for this purpose shall be January to March, April to June, CRM M-9327 of 2012 & 20 connected cases 92

July to September, and October to December. The retun shall be despatched before the last day of the month following the quarter.

(2) Schools, Colleges, Universities, Government or autonomous institutions, registered scientific societies and hospitals using the controlled substance for educational scientific and analytical purposes are only exempted from maintaining records as prescribed under clause 3 and sending returns as prescribed under this clause. But they shall comply with other provisions of this order.

(3) The persons who are to send quarterly returns under this clause shall intimate in Form 4 or Form 5, as the case may be, to the concerned Zonal Director, Narcotics Control Bureau, whose address is given in the Form upto the 15th day of May, 1993 regarding the opening balance of stock of the controlled substance possessed by him as on the 15th day of April, 1993. The first regular returns shall be sent for the period from 15th April, 1993 to 30th June, 1993."

The reading of Clause 3 of the Order 1993 makes it clear

that distributor or seller of any controlled substance shall maintain a

daily account of his activities in form prescribed under the Act and

that record is to be preserved for two years from the date of last

entry in the register and also required to report to Director General

Narcotic Control Bureau as per clause 3 (2) of the Order 1993. Clause

4 of the Order 1993 refers to the transport of the controlled

substances. Some of the petitioners who are claiming to be relations

and employees / agents of the license holders under the Drugs and

Cosmetics Act have failed to show that they had been maintaining the

statutory records as per Order, 1993 and had complied with the

requirement of sending report to the Director General Narcotic CRM M-9327 of 2012 & 20 connected cases 93

Bureau. They also failed to show the consignment note with regard to

the transport / movement of controlled substances as is required

under Clause 4 of the Order 1993. Clause 5 of the Order, 1993 refer

to the Selling of Controlled substance after showing the industrial

license or any registration certificate under any law.

For the reasons recorded above, question No.2 is

answered in the affirmative and it is held that the manufacturers of

manufactured drugs or prescription drugs, chemists, wholesale

license holders under the Drugs and Cosmetics Act are required to

comply with the provisions of NDPS Act, Rules and Order, 1993 for

the possession of narcotic drugs, psychotropic and controlled

substances.

The petitioner - Vinod Kumar and other similarly situated

person who claimed protection under the license of D&C Act have

failed to show that they had complied with the provisions of the NDPS

Act, Rules and Order 1993, hence, they have violated the same and

cannot be granted concession of bail.

In view of above, in my opinion the petitioners had not

complied with the provisions of NDPS Act, Rules and the Order, 1993.

All the petitioners having license under the D&C Act have also

committed violation of the provisions of the NDPS Act, Rules and

Order, 1993, so the petitioners who are claiming agents/employees of

the manufacturers, wholesalers and retailers licensees under the D&C

Act and the other than the licensees petitioners who are possessing

the Narcotic Drugs, Psychotropic Substances, manufactured drugs

and controlled substances will also be deemed to have violated the CRM M-9327 of 2012 & 20 connected cases 94

provisions of the NDSP Act, so they are not entitled to relief of bail

pending trial.

Hence, all the petitions are dismissed.

In order to balance equities, this Court deems it fit and

proper that the trial Court may decide the cases of the petitioners

expeditiously, preferably within six months from the receipt of

certified copy of this order.

Before parting with the judgment, it is appropriate to

observe that the State counsel has failed to show that any rules have

been framed under Section 10 of the NDPS Act. Keeping in view the

present scenario in the State of Punjab with regard to drugs of abuse

specifically the prescription drugs, the State of Punjab is directed to

frame rules under Section 10 of the NDPS Act with regard to permit,

control and regulate the possession of Narcotic Drugs and

Psychotropic Substances under the NDPS Act specially with regard to

the possession by the license holders, their agents and employees

under the Drugs and Cosmetics Act, 1940, if already not framed,

within six months from receipt of certified copy of this order. Drug

Controller and Drug Inspectors of the State are directed to take

appropriate measures for controlling the misuse of

manufactured/prescription drugs.

Disposed of accordingly.

June 01, 2012 [Paramjeet Singh] vkd Judge