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2014 DIGILAW 538 (HP)

Om Pal v. State of Himachal Pradesh

2014-05-06

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge (Oral). The petitioner has filed this application under Section 439 read with Section 167 (2) of the Code of Criminal Procedure (for short ‘Code’) for grant of regular bail in case FIR No. 51 of 2013 dated 8.12.2013 registered at Police Station, Nerwa, under Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’). 2. The case of the petitioner is that he has been arraigned as an accused in case FIR No. 51/2013 dated 8.12.2013, registered with Police Station, Nerwa, District Shimla, H.P. allegedly for commission of offences punishable under Sections 21, 22 and 29 of the Act, along with co-accused Sunil Kumar son of Sh. Shyam Singh, resident of Village and Post Office, Kaidi, Police Station, Nerwa, District Shimla, H.P. who was running a chemist shop. It is further the case of the petitioner that as per the allegations in the FIR, the police apprehended both the accused at Shikair (Nerwa) when petitioner was stated to be allegedly travelling in a Santro Car bearing registration No. HP-51L-1177 which is owned by Sunil Kumar. The allegation further contained is that on checking of the car by the police 229 Vial of Rexcof (cough syrup) were recovered allegedly containing 100 ML of Rexcof in each Vial on 25.11.2013. The police suspected the commission of an offence punishable under the Drugs and Cosmetics Act as a result, the petitioner and the said Sunil Kumar were let of by the police on their furnishing personal bond to the tune of ` 10,000/-each on the same day i.e. 25.11.2013. The police after receipt of opinion from S.P.Shimla, converted the case under the Narcotics Drugs and Psychotropic Substances Act and FIR was lodged on 8.12.2013. 3. It is further alleged that the petitioner approached the High Court of H.P. and was released on interim bail, however the petition was dismissed on 17.12.2013 and since 18.12.2013 the petitioner is in custody. The petitioner has also filed bail application No. 1-S/22 of 2014 on 31.12.2013 before the learned Sessions Judge, Shimla exercising the powers of Special Judge under the Act for grant of bail under Section 439 Cr.P.C., but the learned Special Judge dismissed the same on 24.1.2014. 4. The petitioner has also filed bail application No. 1-S/22 of 2014 on 31.12.2013 before the learned Sessions Judge, Shimla exercising the powers of Special Judge under the Act for grant of bail under Section 439 Cr.P.C., but the learned Special Judge dismissed the same on 24.1.2014. 4. It is further the case of the petitioner that thereafter another bail application No. 22-S/22 of 2014 was filed by the petitioner on 19.3.2014 before the learned Special Judge, Shimla for release of the petitioner on default bail as the Investigating Agency has failed to file the charge-sheet within the statutory period as defined under Section 167(2) of the Code. The learned Special Judge, Shimla in its order dated 11.4.2014 has rejected the prayer of the petitioner by holding that the petitioner is not entitled for the release as defined under Section 167 (2) of the Code. 5. The petitioner has claimed his release on statutory bail on the following grounds: “F. That the investigating agency has sought the opinion of Chemical Examiner and as per the report, the quantity of Codeine Phosphate in the Vials comes to 1.981 mg. per/ml. bottle, which does not fall under the commercial quantity. As such, rigor of Section 37 of the Narcotic Drugs and Psychotropic Substances Act has no application in the present case. G. That the petitioner in the present case was arrested by the police on 18.12.2013 and statutory period of 90 days has expired on 19.3.2014 and an application No. 22-S/22 of 2014 was filed by the petitioner by exercising his right to be released on default bail on the same day i.e. 19.3.2014, as the police has not filed the charge-sheet within the statutory period. Even as on today, the charge-sheet has not been laid, though investigation of the case is complete long back. However, learned Special Judge has rejected the prayer of petitioner by holding that Codeine quantity in the bottles falls in commercial quantity. The findings of learned Special Judge are contrary to law and are not sustainable. The report of Chemical Examiner contains that the quantity of Codeine Phosphate was found to be 1.981 mg. per/ml. in 100 ml. bottle. If total quantity of 229 Vials of Rexcof is calculated, the same comes to 45.664 mg., which does not fall under commercial quantity. The findings of learned Special Judge are contrary to law and are not sustainable. The report of Chemical Examiner contains that the quantity of Codeine Phosphate was found to be 1.981 mg. per/ml. in 100 ml. bottle. If total quantity of 229 Vials of Rexcof is calculated, the same comes to 45.664 mg., which does not fall under commercial quantity. The petitioner, as such, is entitled to be enlarged on default bail as defined under Section 167 (2) of the Code of Criminal Procedure. H. That the detention of the petitioner after 90 days is contrary to the provisions of Section 167(2) of the Code of Criminal Procedure and findings of learned Special Judge, Shimla are wrong, illegal and liable to be set-aside. The investigating agency has filed report in the court of learned Special Judge, Shimla, wherein it is specifically mentioned that each bottle of Rexcof found to contain Codeine Phosphate 1.981 mg.per/ml. in 100 ml. bottle. However, the learned Special Judge has wrongly rejected the prayer of petitioner.” 6. Notice of the application was served upon the State and looking into the seriousness of the matter, the learned Advocate General was requested to assist in the matter. 7. I have heard Mr. K.S.Thakur, learned counsel for the petitioner and Mr. Shrawan Dogra, learned Advocate General, assisted by Ms. Meenakshi Sharma, Addl. Advocate General, for the State. 8. The learned counsel for the petitioner has contended that if at all the petitioner is guilty of any offence then he can only be punished under Section 21 of the Act. Since the accusation against the petitioner are in relation to ‘manufactured drug’ i.e. ‘Codeine’. Section 21 of the Act reads as follows: “21. Advocate General, for the State. 8. The learned counsel for the petitioner has contended that if at all the petitioner is guilty of any offence then he can only be punished under Section 21 of the Act. Since the accusation against the petitioner are in relation to ‘manufactured drug’ i.e. ‘Codeine’. Section 21 of the Act 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, purchases, 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 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.” 9. The manufactured drug has been defined in Section 2 (xi) of the Act, which reads thus: “2 (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.” 10. According to the petitioner, it is only pure content of the drugs which would determine as to whether it is a small quantity, intermediate or commercial quantity and only the content/quantity of narcotic substance i.e. ‘codeine phosphate’ has to be calculated and not the entire quantity of vials. Therefore, in terms of the report of Chemical Examiner, the established quantity of codeine phosphate works out to about 45.664 mg of codeine, which is an intermediate and less than the commercial quantity of 1 kg prescribed for the said drug and therefore, he is entitled to statutory bail. For this purpose, he relied upon Ravi Kumar @ Ravi vs. State of Punjab Crl. Misc. No. M-35757 of 2012 decided on 16.1.2013 and Pawan Kumar and another vs. State of Punjab, CR.R. No. 165 of 2009 decided on 28.1.2010. 11. I have perused both judgments relied upon by the learned counsel for the petitioner. The judgment passed in Ravi Kumar’s case is totally unreasoned and, therefore, is of no avail to the petitioner. While in so far as the case of Pawan Kumar is concerned, the only reason given by the learned Single Judge of the Punjab & Haryana High Court to release the accused on bail is as follows: “With respect to parcel No.4 of Rexcof Syrup, it was stated that the same is commonly known as cough syrup. It is manufactured by M/s Cipla India Ltd. and has been established in therapeutic practice for the treatment to dry cough. It has been found that each 5 ml of liquid contains 9.8 mg of codeine phosphate, which is within the permissible limit of 100 mg. per dosage unit. “ 12. I am afraid that these judgments cannot be relied upon and be construed to be a binding precedent as these judgments are totally unreasoned. 13. The learned counsel for the petitioner then relied upon the judgment passed by the Hon’ble Full Bench of this Court in Crl. Appeal No.763 of 2002 decided on 24.9.2013, the relevant paras as have been relied upon reads thus: “31. It has, therefore, been held in this judgment that in view of the report, the entire stuff was not charas, but had the contents of Charas. After taking note of the definition of Charas in terms of Section 2 (iii) of the NDPS Act in this judgment, it is held further as under : “20. It has, therefore, been held in this judgment that in view of the report, the entire stuff was not charas, but had the contents of Charas. After taking note of the definition of Charas in terms of Section 2 (iii) of the NDPS Act in this judgment, it is held further as under : “20. In the instant case from the stuff recovered, one of sample parcels was sent for examination to CTL Kandaghat, report whereof does not show the presence of characteristic cystolithic hair nor it has been mentioned whether the resin found in the said sample was that of cannabis plant so as to bring it within the definition of charas referred to above. It also does not depict the presence of cannoniboils/ tetrahydrocannabinol. In other words the report of chemical examiner did not say any thing about the source of resin. Therefore, in our considered opinion, report of the analysis Ext. PW10/F is discrepant and does not conform to the definition of charas as such the conviction and sentence passed against the accused is liable to be set aside.” “44. Learned Single Judge of Bombay High Court (Nagpur Bench) in Madansingh Kamalsingh Rajput versus State of Maharashtra, 2010 (1) Drugs Cases (Narcotics) 584, after taking into consideration the scope of Section 293 Cr.P.C. has held as under:- “21. Therefore, in my view, neither can a report of an expert be thrown out of consideration, only because the expert is not summoned to prove it, nor can such a report be discarded only because it does not give details of the tests which have been carried out in laboratory and which have led the experts to conclusion certified by him, unless the accused (or even prosecutor) makes out a case for summoning an expert, or to require such expert to furnish details of the tests carried out by him. The Court may evaluate such steps and may disregard the report, if either the expert does not satisfactorily explain the tests carried out by him which led him to conclude that the substance analysed to be one certified by him, or if another substance too is shown to yield the same results on being subjected to same tests. The Court may evaluate such steps and may disregard the report, if either the expert does not satisfactorily explain the tests carried out by him which led him to conclude that the substance analysed to be one certified by him, or if another substance too is shown to yield the same results on being subjected to same tests. Therefore, the authorities on which the learned counsel for the appellant placed reliance and the judgments relied on in such authorities, cannot be held, in my humble opinion, to have laid down a proposition that a report from the Forensic Science Laboratory or Assistant Chemical Analyser to the Government cannot be read without summoning such expert, or if such report does not disclose details of the tests carried out unless such details or examination of such expert is sought by parties to the proceedings, by making out a case for so insisting, and not for the mere asking, so as not to turn Section 293 of the Code into a dead letter.” “52. Heroin, which is a manufactured drug, is distinct and different from Charas, cannot therefore be in crude form and rather only in purified form. Therefore, there cannot be any quarrel qua the law laid down in E Micheal Raj’s case that it is only the actual contents by weight of the narcotic drugs, relevant for the purpose of determining small quantity, intermediate or commercial quantity. When in Sunil’s case and the connected matters in the opinion of the expert, the entire mass was charas and there was no evidence that the same was mixture of some neutral substance, therefore, the entire bulk recovered in this case should have been taken as charas. In Dharampal’s case supra, there is no evidence that the remaining substance was neutral and as such was to be excluded from the bulk recovered from the accused.” 14. In Dharampal’s case supra, there is no evidence that the remaining substance was neutral and as such was to be excluded from the bulk recovered from the accused.” 14. The sum and substance of the arguments raised by learned counsel for the petitioner is that in case of seizure of narcotic 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, i.e. less than commercial quantity, then the petitioner is entitled to statutory bail under Section 167 (2) Cr.P.C. and since the prosecution had failed to file the final report within the statutory period of 90 days. 15. Learned Advocate General on the other hand contended that once the petitioner admits the applicability of Section 21, then in so far as the Narcotic Drugs and Psychotropic Substance is concerned, it is not pure drug content which will have to be seen but it would be the entire weight of the drugs recovered which will have to be taken into consideration for calculating its quantity in view of the notification No.S.O. 294 (E) dated 18.11.2009. 16. 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, whereby and wherein the small quantity and commercial quantity of each of the substance had been stipulated as follows: “”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.” ““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.” The said notification did not introduce a new psychotropic substance other than those mentioned in the schedule of the Act. Since intention of the notification appears to be only to prescribe small and commercial quantity of psychotropic substance by maintaining its statutory definition. However, by notification No. S.O. 294 (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). Since intention of the notification appears to be only to prescribe small and commercial quantity of psychotropic substance by maintaining its statutory definition. However, by notification No. S.O. 294 (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 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 salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.” 17. Thus, what is established from the perusal of notification of 2009 is that the pure content test to ascertain the exact quantity of narcotic drugs and psychotropic substance or manufactured drugs is not required nor can it be used for any advantage especially by the accused. Because now the whole contraband seized is required to be considered and not the quantity of drug or contraband reflected in the report of the Chemical Analyst. 18. In so far as the reliance placed by learned counsel for the petitioner on the judgment of the Full Bench in State of H.P. vs. Mehboon Khan, decided on 24.9.2013 is concerned, the same cannot be read and interpreted in a manner as is sought by the petitioner. In fact the reference to the Larger Bench was only to consider the correctness of the Division Bench Judgment which had held that it was the percentage of tetrahydrocannabinol (THC) which alone would determine the quantity of resin and not the entire stuff. In this background, the question has been answered and reference to the judgment in E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 has been made. The question of applicability of the amendment carried out in the notification No. S.O. 294 (E) dated 18.11.2009 was neither raised nor its applicability considered. Thus, no reliance whatsoever can be made upon reading stray paragraph of the judgment. 19. The question of applicability of the amendment carried out in the notification No. S.O. 294 (E) dated 18.11.2009 was neither raised nor its applicability considered. Thus, no reliance whatsoever can be made upon reading stray paragraph of the judgment. 19. It is settled law that judgment has to be read as a whole and it is neither desirable nor permissible to pick out a word or a sentence from the judgment, divorced from the context of the question under consideration and treat it to be the complete ‘law’ declared by the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of the Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by the Court, to support their reasonings. (See: Commissioner of Income Tax versus Sun Engineering Works (P) Ltd. (1992) 4 SCC 363 .). 20. It cannot be disputed that prior to the issuance of the notification there was a controversy regarding what would constitute small, intermediate or commercial quantity which was set at rest by the Hon’ble Supreme Court in E. Micheal Raj case (supra). The Hon’ble Supreme Court after analyzing the provisions of the Act and also the relevant entries made in the notification dated 19.10.2001 had held “when any narcotic drugs or psychotropic substance is found mixed with one or more neutral substance for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.” 21. Probably it was this view of the Hon’ble Supreme Court which resulted in the issuance of notification dated 18.11.2009. Probably it was this view of the Hon’ble Supreme Court which resulted in the issuance of notification dated 18.11.2009. Though, this Court is not going into the constitutional validity of this notification since it has not been raised, however, suffice is to say that it cannot be denied that the Central Government had the legislative mandate to issue such a notification as it has been given the power to specify by a notification in the Official Gazette the quantity representing the small quantity or commercial quantity in relation to each narcotic drugs and psychotropic substance. 22. The constitutional validity of the notification as observed earlier is not in question before this Court. However, to straighten the record, it may be observed that the same has already been upheld by the Delhi High Court in Abdul Mateen vs. Union of India, WP(Crl.) 1552 of 2010 decided on 6.11.2012. 23. As observed above, while determining whether the quantity small or commercial, the weight of the entire bulk contraband has to be taken into consideration and the pure content test cannot be applied. 24. A co-ordinate Bench (Justice Rajiv Sharma) of this Court in Jaswinder Singh vs. State of Himachal Pradesh 2013 (2) Shim. L.C. 942 has held as follows: “3. Mr. Karan Singh Kanwar has vehemently argued that the petitioner is innocent and has been falsely implicated. He has also argued that Proxyvon is not mentioned in the list of psychotropic substance in the Schedule prepared as per clause (xxiii) of Section 2 of the Act. 4. Mr. Pramod Thakur has strenuously argued that the substance recovered from the petitioner is narcotic drug. He has relied upon notifications issued by the Government of India No. S.O. 826 (E) dated 14.11.1985 and S.O. 40 (E) dated 29.1.1993 of manufactured narcotic drugs. Dextropropoxyphene has been defined at Sr. No. 87 of the notification. 5. It is true that Dextropropoxyphene (Proxyvon) does not find mention in the list of psychotropic substance as per Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985. 6. Dextropropoxyphene has been defined at Sr. No. 87 of the notification. 5. It is true that Dextropropoxyphene (Proxyvon) does not find mention in the list of psychotropic substance as per Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985. 6. “Manufactured drug” has been defined in clause (xi) of section 2 of the Act as under: “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.” 7. “Narcotic drug” has been defined in clause (xiv) of section 2 of the Act as under: “Narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods.” 8. The expression “psychotropic substance” has been defined in clause (xxiii) of section 2 of the Act as under: “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; 9. The Central Government has already issued notification, as noticed hereinabove and Dextropropoxyphene (Proxyvon) has been defined as manufactured narcotic drug. The Central Government has already issued notification, as noticed hereinabove and Dextropropoxyphene (Proxyvon) has been defined as manufactured narcotic drug. Section 21 provides that whoever, in contravention of any provision of the 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 manufactured drug or any preparation containing any manufactured drug shall be punishable, 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 and 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 and 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. 10. The Central Government has issued notification specifying small quantity and commercial quantity. Dextropropoxyphene (Proxyvon) finds mention at Sr. No.33 of the notification dated 19.10.2001. The small quantity is 20 grams and the commercial quantity is 500 grams. It is made clear that to determine whether the quantity is small or commercial, the weight of the entire bulk has to be taken into consideration. The Proxyvon (Dextropropoxyphene) falls within the ambit of manufactured narcotic drugs. It has been so notified vide notification Nos. No. 826 (E) dated 14.11.1985 and S.O. 40 (E) dated 29.1.1993. Small quantity and commercial quantity has been defined in Sr. No. 33 of the notification dated 19.10.2001. 11. The menace of the drugs has taken a dangerous dimension in the society. The spread of this menace must be curbed with iron hand. The petitioner, as noticed above, was also involved in the earlier case and was arrested and enlarged on bail. He has again committed offence under Section 21 of the Act within a period of seven months of release of bail.” 25. The spread of this menace must be curbed with iron hand. The petitioner, as noticed above, was also involved in the earlier case and was arrested and enlarged on bail. He has again committed offence under Section 21 of the Act within a period of seven months of release of bail.” 25. The society as well as the administration is caught totally, unaware about the C-Companies (cough syrup addicts), who are the new group of teenagers and children, roaming around us everywhere and this new fad is catching up very fast. One is curious, how the State is totally unaware magnitude of the problem and dangers lying ahead or is it that they have brushed the catastrophe under the carpet. Cough syrups have become a whole time recreational drug for these new kids on the block. No serious endeavour has been made to conduct a comprehensive survey or study to deal with these addicts. The prime cause for such addiction is its easy availability of these syrups, therefore, it is high time that the administration wakes up to tackle this problem before it goes out of hand. It is a matter of great concern that the administration is sleeping over the matter and has taken no steps to ensure the enforcement of Drugs and Cosmetics Act, 1940 whereby the drugs in the nature of cough syrups can be sold only on the prescription of a registered Pharmacist or a doctor. The addiction gives rise to serious several side effects like seizure (convulsions), problem with urination, confusion, agitation, hallucinations, unusual behaviour, feeling one may pass out, slow heart rate, weak pulse, shallow breathing, feelings of extreme and complete dependency on the syrup. It is high time this problem which may take shape of an epidemic is dealt with utmost dispatch or else ? 26. It is high time this problem which may take shape of an epidemic is dealt with utmost dispatch or else ? 26. Section 167 (2) of the Code reads as follows: “The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that – (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused isproduced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.” 27. Section 36A (4) of the Act reads as under: “In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”; Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” 28. Since the petitioner admittedly has been found to be in possession of 229 vials of Rexcof (cough syrup) of 100 ml quantity and the entire quantity is now required to be taken into consideration to determine the quantity i.e. small, intermediate or commercial, therefore, the case of the petitioner admittedly does not fall within the purview of Section 167 (2) of the Code and is covered by Section 36A (4) of the Act. Therefore, the present petition being pre-mature is accordingly dismissed.