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2012 DIGILAW 1433 (RAJ)

Panna @ Pawan Kumar v. State of Rajasthan

2012-06-12

SANDEEP MEHTA

body2012
JUDGMENT 1. - These two bail applications under Section 439 Cr.P.C. have been preferred by the petitioners, who have been charge-sheeted for the offences under Sections 8/22 and 29 of the N.D.P.S. Act, in connection with F.I.R. No. 112/2012 registered at Police Station Hanumangarh Sadar, District Hanumangarh. 2. Succinctly stated the facts of the case are that the petitioner Panna @ Pawan Kumar was apprehended by the S.H.O. Police Station Hanumangarh Sadar on 10.5.2012 with the allegation that he was carrying 76 bottles of Rexcof Cough Syrup, which is having a narcotic content. The further allegation of the prosecution is that the petitioner Mukesh Kumar was the licensed Pharmacist, who illegally supplied the said bottles of Rexcof Cough Syrup to the accused Panna @ Pawan Kumar. 3. Both the accused upon being arrested, moved separate applications for their release on bail in the Court of the learned Special Judge, N.D.P.S. Cases, Hanumangarh and the learned Special Judge has rejected such applications and hence, the instant applications have been moved by the petitioners. 4. The Court in view of the decision passed in the case of Jawahar Lal v. State, S.B. Criminal Revision No. 1012/2011. dated 20.12.2011 directed the learned Public Prosecutor to keep present the Director General of Police. Rajasthan before this Court today. 5. Today, learned Additional Advocate General has moved an application seeking exemption from personal appearance of D.G.P., Rajasthan. 6. For the reasons mentioned in the application, the personal appearance of D.G.P., Rajasthan is exempted. The Investigating Officer i.e. the C.O., Hanumangarh is present in the Court. On being inquired about the reasons for non-compliance of the directions issued by this Court in the case of Jazvahar Lal, an explanation/written submission has been filed before this Court. It has been submitted that as per Rule 66 of the N.D.P.S. Rules, illegal possession of psychotropic substances is an offence. On the strength of Rule 66, it is pleaded that since the possession and conspiracy in relation to psychotropic substances by the accused Panna @ Pawan Kumar and Mukesh Kumar is punishable under the N.D.P.S. Act and thus, the accused are not entitled to be released on bail. 7. The said explanation and the resort to Section 8(c) and Rule 66, is of no avail to the State. 7. The said explanation and the resort to Section 8(c) and Rule 66, is of no avail to the State. Obviously, the provision as well as the Rule can only be applied where, the contraband recovered falls within the definition of, either a narcotic drug or psychotropic substance. A perusal of the record reveals that the Rexcof Cough Syrup bottles, which have been recovered in this case were manufactured by the pharmaceutical company named 'Cipla'. Each of the bottles contains the narcotic content named the chemical 'Codeine Phosphate'. It is not the case of the prosecution that the total concentration of the 'Codeine Phosphate' per bottle is in excess of 2.5%. The exact quantity of Codeine Phosphate in a 100 ML bottle has been mentioned as 10 MG. Thus, the total narcotic content is less than 2.5% Likewise, one dosage unit i.e. 5 ML of Rexcof Cough Syrup contains only .05 MG of Codeine Phosphate. The Government of India by a notification No. S.O.826(E) dated 14.11.1985 issued under Section 2 of the Act has prescribed the quantity of 'Codeine Phosphate' in a single dosage unit, which is required to be present in the drug before the same can be covered under the Narcotic Drugs and Psychotropic Substances Act. The relevant paras of the notification are quoted herein below: "S.0.826 (E), dated 14.11.1985. - In exercise of the powers conferred by sub-clause (b) of Clause (xi) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declares the following narcotics substance and preparation to the manufactured drugs, namely. 35. Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice." 8. Obviously, in the case in hand, the concentration of the drug in a single dosage unit and in the whole bottle is well within the limit prescribed under the above notification, therefore, in view of the notification as well as the decision of this Court in Jawahar Lal's case, this Court has no hesitation in holding that the recovered bottles of Rexcof Cough Syrup in this case cannot be said to be infringing the provisions of the notification at this stage. The final opinion in this regard can only be given after the F.S.L. report is received, but prima fcicie, the documents, which are available on record, show that the narcotic content in the bottles was within the limits prescribed under the notification. Therefore obviously, neither the provisions of Section 8(c), nor Rule 66 would be attracted in this case. Resultantly, the bail applications deserve to be accepted. 9. Learned Additional Advocate General canvassed before this Court that action under the Drugs and Cosmetics Act is not possible because the offence of possession of Pharmaceutical Drugs without a prescription is punishable under Section 27(b) of the Drugs and Cosmetics Act and as such, it is a non-cognizable offence. This argument need not hold the Court for a moment. The State machinery cannot be permitted to plead that it lacks the resources to book and bring the offenders to face the process of law. Necessary arrangements have to be made by the State to see that the blatant infringements of the provisions of the Drugs and Cosmetics Act, which are being committed in these cases, do not go unpunished. If any such inaction or instance is brought to the knowledge of this Court henceforth, strict action shall be directed to be taken in this regard against the erring official'(s). As soon as the information about-the illegal transactions of pharmaceutical drugs is received, it is the duty of the concerned official (be it a police official), to intimate the Drugs Authorities concerned, so that immediate action can be taken for the booking a case for the offence under the Drugs and Cosmetics Act. Any slackness shown in this regard cannot be tolerated. 10. The upshot of the above discussion is that the applications for bail deserve to be accepted and are hereby accepted. Any slackness shown in this regard cannot be tolerated. 10. The upshot of the above discussion is that the applications for bail deserve to be accepted and are hereby accepted. It is ordered that the accused-petitioners, namely (i) Panna @ Pawan Kumar, and (ii) Mukesh Kumar S/o Daulat Ram, in F.I.R. No. 112/2012, registered at Police Station Hanumangarh Sadar, District Hanumangarh shall be released on bail provided they furnish personal bonds of Rs. 40,000/- each and two surety bonds of Rs. 20,000/- each to the satisfaction of the learned trial Court with the stipulation to appear before that Court on a11 dates of hearing and as and when called upon to do so.Bail application allowed. *******