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2015 DIGILAW 229 (HP)

Virender Thakur v. State of Himachal Pradesh

2015-03-23

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant application has been filed under Section 439 Cr.P.C. The bail applicant who as presently in judicial custody seeks his release therefrom in FIR No.280/2014 of 18.12.2014 lodged in Police Station, Dhalli, Shimla, H.P. The bail applicant was found in conscious and exclusive possession of 23 bottles of Rexcof. The weight of each bottle of Rexcof is 100 ML. The authority concerned by multiplying the total quantum of the mixture in each bottle with the number of bottles, inasmuch as by multiplying 100 ML x 23 computed and determined the content in it of the psychotropic/Narcotic substance, namely, codeine occurring at Serial No.28 of the table appended to the ND&PS Act to be hence, a commercial quantity, as such rendering the entire contents of each of the 23 bottles of the Rexcof to be falling within the ambit of and purview of “commercial quantity”. 2. The learned counsel appearing for the bail applicant contends that the definition of “manufacture” occurring in sub section (x) of Section 2, which is extracted hereinafter, “(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; (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; More specifically, when sub section (4) thereof with specificity excludes from the definition of “manufacture”, any making of preparation with or containing such drugs or substances which are manufactured in a pharmacy on prescription, as such, when the 23 bottles of Rexcof each weighing 100 ML, stand uncontrovertedly manufactured in a licensed pharmacy their recovery from the conscious and exclusive possession of the accused does not hence invite criminal culpability envisaged under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 nor hence the minimal quantity of codeine therein, when falling within the purview of small quantity or its pure content therein alone is to be reckoned for determining the factum of whether more than small or commercial quantity thereof is thereby constituted, dehors the total weight of the preparation/mixture in the bottles of Rexcof. In other words, he has submitted that unless the drug falls within the definition of “manufacture” the bottles of Rexcof while having come to be prepared in a pharmacy on prescription are not hence manufactured drugs, as such, any conscious and exclusive possession thereof at the instance of the bail applicant does not render him amenable to criminal liability as envisaged under the Narcotic Drugs and Psychotropic Substances Act, 1985. The above argument fails and staggers especially given the import and the intention of the legislature while defining the term “manufacture” occurring in sub section (x) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to only exclude the making of preparation with or containing such drug or narcotic substances when such preparation is manufactured at a pharmacy on prescription. In other words, the criminal liability or criminal culpability envisaged or contemplated under the provisions of ND&PS Act is unavailable for attraction only to a licensed pharmacy engaged in the activity aforesaid. It hence, only bars or interdicts any authority concerned to proceed to raid the premises of a licensed pharmacy engaged in the manufacture of a Schedule H drug. However, the exception to criminal liability carved out in the aforesaid section in favour of a licensed pharmacy preparing a Schedule H drug, obviously does not give any latitude to the learned counsel for the bail petitioner to contend that the bottles of Rexcof even when manufactured in a duly licensed pharmacy/pharmaceutical company subsequently come in the conscious and exclusive possession of the bail applicant do render him too to be unamenable to any criminal liability contemplated under the ND&PS Act, especially when he is unable to demonstrate that he was carrying any tenable prescription or was carrying it for scientific purposes. Consequently the above submission stands discountenanced. 3. The learned counsel for the bail petitioner has however, vigorously concerted to contend that the weight of the narcotic substances i.e. of codeine has been specifically enumerated in the label pasted on the bottle and the weight thereof alone ought to have been the determinant for fathoming whether it falls within the ambit of more than small or commercial quantity. The learned counsel for the bail petitioner has however, vigorously concerted to contend that the weight of the narcotic substances i.e. of codeine has been specifically enumerated in the label pasted on the bottle and the weight thereof alone ought to have been the determinant for fathoming whether it falls within the ambit of more than small or commercial quantity. However, in the face of their being an ouster to the aforesaid submission of the learned counsel for the petitioner in an elaborate discussion on the aforesaid facet in a detailed judgment rendered by this Court in Cr.MP(M) No.502 of 2014, titled Om Pal vs. State of Himachal Pradesh anvilled on an incisive consideration of the ratio of the Hon’ble Apex Court in E. Micheal Raj’s case and the notification issued by the Government of India in consonance thereof, the relevant portion whereof is extracted hereinafter: “(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 of 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 no just its pure drug content.”, Hence benumbs and sets at rest the submission of the learned counsel for the bail petitioner. Consequently the weight of the entire mixture is to be reckoned with for determining whether the Schedule H drug, namely, 23 bottles of Rexcof allegedly recovered from the conscious and exclusive possession of the bail applicant falls in the category of small or more than commercial quantity. 4. In aftermath, the weight of codeine, the pure substance in each of the bottles of Rexcof as depicted in the label pasted on the bottle would not pronounce upon the factum of it being the determinant for gauging the weight of the narcotic drug or the psychotropic substance, rather the entire weight of the mixture in the bottle has to be borne in mind for determining its weight. Consequently, when the authoritative pronouncements of this Court as also given the notification of the Government of India issued in consonance thereto, have been tenably borne in mind by the authority concerned while rendering an opinion that the entire weight of the mixture in the 23 bottles of Rexcof, as recovered from the alleged conscious and exclusive possession of the bail applicant is the reckonable factor for computing the weight of the Psychotropic/narcotic substance renders the determination by the authority concerned to be not suffering from any infirmity. In sequel when the quantum of psychotropic substance/narcotic substance, as was recovered from the conscious and exclusive possession of the bail petitioner, falls within the ambit and purview of “commercial quantity”, this Court in sequel is constrained to decline the facility of bail to the bail applicant. Accordingly, the application is dismissed. 5. However, it is made clear that the findings recorded herein above shall have no bearing on the merits of the case.