ORDER : 1. These petitions have been filed under Section 482 Cr.P.C. seeking a direction to respondent police to register a case for alleged offences, based on petitioners complaints and to investigate the case. 2. Heard learned counsel for petitioners and learned Additional Public Prosecutors. 3. A bare reading of complaints inform commission of cognizable offences. The concerned respondent police are directed to register cases thereon and proceed further in accordance with law. 4. These Criminal Original Petitions are disposed of with the above direction. 5. It is with some regret but an even more brooding sense of responsibility that a fault of any one of the brother/sister Judges would attach not to the individual in error but to this great Court of which we Judges are but cogwheels in the administration of justice till the date we have done our time and wane away, that I enter upon this task. The task is made more arduous in that in explaining my cause, I enter upon an exercise which I would not advocate. 6. I have reserved orders in the above petitions towards expressing views on the decision of this Court in Crl. O.P. Nos. 19197, 19198, 19343 and 19359 to 19363 of 2016 dated 27.09.2016 reported in 2016 (5) CTC 577 informing that petitions seeking directions towards registration of complaint were not maintainable and making out a case for reference thereon. The decision of this Court in Crl. O.P. No. 28352 of 2017 informing such petitions to be maintainable relieves the litigant much anguish, anxiety and saves them from the pillar to post exercise set out in decision reported in 2016 (5) CTC 577 and though I am unable to subscribe to the reiteration of a time table expressed in the order in Crl. O.P. No. 28352 of 2017 dated 10.07.2017, I would now leave the reference upon the earlier order to be made by one more able. 7. When Mr. Justice Markandey Katju observed that something was rotten with the Allahadbad High Court, it was not out of disrespect to his parent High Court. Rather, it was an expression of his anxiety and concern that no harm befall such august institution. It is with similar sentiment and in the hope that this Chartered High Court would continue to smell of roses that I ask that we hold a mirror to ourselves. 8. Rather, it was an expression of his anxiety and concern that no harm befall such august institution. It is with similar sentiment and in the hope that this Chartered High Court would continue to smell of roses that I ask that we hold a mirror to ourselves. 8. When it has been the practice of this Court, both before and after the decision of the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh and Others, 2013 (4) Crimes 243 (SC), to issue directions to register complaints, is it not to be expected that if a contra view as found in decision reported in 2016 (5) CTC 577 is held, the same would invite a reference and not a decision of a Co-ordinate Bench/Single Judge with the dictum: Note: The Registry is directed to place a copy of this Order before the Hon'ble Chief Justice for a direction to circulate this Order to all the Magistrates in Tamil Nadu and Puducherry. 9. The decision of the Division Bench of this Court in Sudalaimani vs. State, 2014 (4) CTC 593 , again authored by the same Judge ostensibly declares per incuriam the decision of the Supreme Court in Shajin vs. State, 2013 (2) CTC 593 but in effect the judgment of Division Bench of this Court in Mottai Thevar AIR 1952 Madras 586 which has held the field for well over 65 years, has been undone. It states thus: “27. We are aware that if a Division Bench dissents with the view of a Co-ordinate Division Bench, then the matter should be referred to a Full Bench for resolution. In this case, all the Division Benches have given the benefit of a Police confession obtained during the course of investigation to the Accused relying upon either Mottai Thevar's case or Aghnoo Nagesia's case. We are not disagreeing with the proposition of law laid down in Mottai Thevar's case or Aghnoo Nagesia's case. We are simply following them after noting that in the said two cases the Accused surrendered to the Police immediately after committing the offence and gave a Confession Statement. This singular aspect makes an ocean of difference while determining the legal position which was inadvertently lost sight of by the subsequent Division Benches in the thicket of their noble and laudable objective to grant benefits to the Accused. This singular aspect makes an ocean of difference while determining the legal position which was inadvertently lost sight of by the subsequent Division Benches in the thicket of their noble and laudable objective to grant benefits to the Accused. With great respect to them, in our humble opinion, these Judgments are per incuriam. 28. We may have to face a criticism that we have shut a ventilator that was available for the Accused to have their convictions altered to lesser offences based on their Police confessions. We would plead guilty to this charge gracefully rather than approve of a procedure that is against the law and Supreme Court ruling. 29. To sum up, if a confession is given to the Police Officer before the start of investigation, then it can be used in favour of the Accused as held in Mottai Thevar's case. If it is given after the commencement of the investigation, its use even in favour of the Accused is barred by Section 162 of the Code.” Again, a reference on the decision by a Co-ordinate Bench has been avoided. Following the decision reported in Sudalaimani's case would mean, for example, that one who commits murder upon a plan and affords a confession exculpatory in nature by design and before registration of a First Information Report would benefit therefrom and one, who in the heat of the moment and extreme anguish, resorts to violence resulting in death, would not if the confession was made by him after registration of the case. To explain the fallacy in Sudalaimani, we would refer to definition of fact in the Indian Evidence Act. Fact means and includes: (1) any thing, state of things, or relation of things, capable of being perceived by the senses. (2) any mental condition of which any person is conscious. If the confession of an accused discloses his conscious mental condition and it is deemed to fall within the definition of fact, would not the discovery of such fact also be covered by Section 27 of the Indian Evidence Act so as not to suffer the rigour of Section 25 thereof? If so, the discovery of such fact before or after commencement of investigation is insignificant. I am aware that the confession of accused generally is seen in relation to conduct as defined in Section 8 of the Indian Evidence Act. If so, the discovery of such fact before or after commencement of investigation is insignificant. I am aware that the confession of accused generally is seen in relation to conduct as defined in Section 8 of the Indian Evidence Act. But is it taboo to think that the same may invite consideration both under Sections 8 and 27 of the Indian Evidence Act? Would have not a reference on the issue aided larger consideration? 10. The judgment in Sudalaimani has come in for much criticism and in my view, rightly, both at the hands of brother Judges as also the bar [Refer Sudalaimani vs. State, 2014 (4) CTC 593 ] Snatching Benefit to the Accused 2014 (4) CTC 108-111 and Critical Note on the Judgment rendered in Sudalaimani vs. State, 2014 (4) CTC 113 . Such judgment reflects predetermination all over its face and quite surprisingly an article has been published by the Judge, who authored it under the head Making of Sudalaimani vs. State, explaining the decision and justifying the predetermination. Since when have Judges of this Court explained their judgments through articles in law journals? 11. In Mohamad Ali Jinna vs. The Intelligence Officer, 2017 (1) L.W. (Crl.) 543, it was held that only the actual quantity of the particular drug/psychotropic substance was to be taken into account for determination of whether possession was of a commercial quantity, when the drugs/substance was in dosage form (dosage as permissible in law). Again, the same Single Judge, takes it upon himself to inform such decision to be per incuriam in his order in Mohamed Ali and Another vs. The State, 2017 (1) L.W. (Crl.) 842. 12. The table drawn up in keeping with sub-clause (vii-a) and (xxiii-a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in item Nos. 1 to 238 informs the various narcotic drugs and psychotropic substances, the composition and also the quantum thereof which is to be seen as small or commercial quantity. Item No. 239 and a note under the table read as follows:- S. No. Name of Narcotic Drug and Psychotropic Substance (International non-propriety name (INN)) Other non-propriety name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm./kg.) 239 Any mixture or preparation that of with or without a neutral material, of any of the above drugs. Item No. 239 and a note under the table read as follows:- S. No. Name of Narcotic Drug and Psychotropic Substance (International non-propriety name (INN)) Other non-propriety name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm./kg.) 239 Any mixture or preparation that of with or without a neutral material, of any of the above drugs. * ** * Lesser of the Small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. ** Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. Note: (1) The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific chemical designation, the esters, ethers and salts of these drugs, including salts of esters, ethers and isomers; whenever existence of such substance is possible. (2) The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparation of substances of note 1 above. (3) ''Small Quantity'' and ''Commercial Quantity'' with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. (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 salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. In Mohamed Ali's case, learned Judge sees the words of any of the above drugs as the catch expression in S. No. 239 and informs thus: “20. At the risk of repetition, S. No. 239 of the Notification dated 19.10.2001 deals with a substance containing 2 or more species of narcotic drugs/psychotropic substances and will not apply to the presence of a single species of a narcotic drug/psychotropic substance.” Is not any of the above drugs in Item No. 239 seen to be as relating to Item Nos. 1 to 238 that precede it? 1 to 238 that precede it? Is it not to be understood that the English language would not permit of the use 'any of the above drug' (in singular)? Would not a reference to Note 4 and particularly the words entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form (underlying supplied) lead to the conclusion that Item No. 239 can also relate to a single drug? The Narcotic Drugs and Psychotropic Substances Act, 1985, defines preparation and psychotropic substance as follows: “Preparation, in relation to a narcotic drug or psychotropic substance means any one 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: “Psychotropic substances 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.” 13. In Mohamed Ali, learned Single Judge observes that definition of the word preparation gets telescoped and subsumed into the definition of the expression psychotropic substance. In other words, a preparation containing a psychotropic substance that is listed in the Schedule to the NDPS Act is per se a psychotropic substance. 14. The entire discussion in the decision in Mohamad Ali Jinna case was on the manner of computing the drug content of preparation of a drug/psychotropic substance in dosage form. Psychotropic substance can either be: (1) any substance natural or synthetic. (2) any natural material. (3) any salt or preparation of such substance or material included in the list of psychotropic substance specified in the schedule. Therefore, preparation is but one item which falls within the definition of psychotropic substance. Preparation has been culled out of the general and given a specific meaning. In Mohamad Ali Jinna, this Court, following the principle that a special definition prevails over a general one, has placed a reading and informed its opinion on the manner of calculating the quantum for determination whether possession is of commercial quantity or otherwise and in relation to a drug in dosage form and as permissible in law. 15. Learned Judge in Mohamed Ali discusses Paragraphs 10 to 12 in Mohd. Sahabuddin and Another vs. State of Assam, 2012 (13) SCC 491 which read as follows: “10. 15. Learned Judge in Mohamed Ali discusses Paragraphs 10 to 12 in Mohd. Sahabuddin and Another vs. State of Assam, 2012 (13) SCC 491 which read as follows: “10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and the each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants. (Underlining supplied) 11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less than 10 mg of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means contributing to cure of disease. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent. 12. As pointed out by us earlier, since the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule H drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the NDPS Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants failure to establish the specific conditions required to be satisfied under the abovereferred to notifications, the application of the exemption provided under the said notifications in order to consider the appellants application for bail by the courts below does not arise.” (Underlining supplied) 16. In Mohd. Sahabuddin, the component of offending drug in the medication in possession of the accused was above commercial quantity. In Mohamad Ali Jinna it was not. If regard be had to the underlining now supplied by us in paragraph Nos. 10 and 12, is the decision not to be understood as informing that where the component of the offending drug in the medication in possession of the accused is in commercial quantity, then and then alone, the onus lies on the accused to show that such possession was justified and when the component of the offending drug does not amount to commercial quantity, such need does not arise. Between the decisions in Mohamad Ali Jinna and Others vs. The Intelligence Officer, 2017 (1) L.W. (Crl.) 543 and Mohamed Ali and Another vs. The State, 2017 (1) L.W. (Crl.) 842 which informs a correct reading of the enactment or the decision of the Supreme Court touched upon? Should the same not form the basis of a reference or is a reference to be avoided by resort to the magic mantra per incuriam, again, by the very same Judge particularly given the limited understanding that is ours? While concern expressed in Mohamed Ali on the horror that abuse of drugs entails is understandable and even acceptable, the rambling rant on illicit laboratories manufacturing tablets in huge quantities and smuggling thereof through porous Indo-Pakistan border, is not if regard be had to the last line in Para 23 in Mohamad Ali Jinna and to the following effect: “Though unnecessary, this Court would state that reference to a drug/substnace in dosage form can only be with reference to a dosage form as permissible in law. It is to be noticed that the sentence starts with the prefix though unnecessary. I was most hesitant to offer the explanation in the last line in paragraph No. 23 of Mohamad Ali Jinna lest it offend readers/members of the Bar should they see the same as placing them at the kindergarten level. But now the realisation that what was considered unnecessary indeed was necessary since what is stated necessarily may not be understood in the manner necessary. Going back a little, on reading the Making of Sudalaimani vs. State, I was aghast at the use of the word upstarts, a derogatory term, in relation to detractors. But the usage umbrage under in Mohamed Ali, an usage not permitted of the English language, assures me that it was not ill meant. Reading and understanding totally are two different things. English, at the end of the day, is to us, a foreign language. Great men have walked the corridors of this Court. Judges of this Court held in great esteem and whose work is cherished with pride even today are too many to name. We would do well to remember that those who went before us were men of substance and in the least, were not men of straw, which we in comparison are. All that is taken umbrage to herein above is but the doings of just one of us. What is to happen if others are to follow suit? Would we then not be seen as Don Quixotes battling imaginary windmills? 17. The Deccan Chronicle of 27.06.2017 carries an article by Justice Santosh Hegde, Former Judge, Supreme Court of India, titled Judge Not, Lest Ye Be Judged. Excerpts: “.......All this may lend credence to the idea that the judiciary has given in to personal compulsions. More dangerously to the average citizen, this prejudice, bearing in mind its source, can easily be confused with the law. Does this mean a judge must remain free of human predilections? No. We all have our prejudices, without exception. It is terribly unfortunate, however, that these personal views are being publicly expressed by top-order court judges. All this does is make light of the gravity that should be synonymous with the judiciary.” “......Judges are not expected to unleash their personal views on the public and if they do, then those views should be well within the legal ambit. It is terribly unfortunate, however, that these personal views are being publicly expressed by top-order court judges. All this does is make light of the gravity that should be synonymous with the judiciary.” “......Judges are not expected to unleash their personal views on the public and if they do, then those views should be well within the legal ambit. Sentiment and personal opinions that contradict or undermine the law should be kept strictly in check.” “.....Has the judiciary diminished its own credibility? It is possible, when people with strong views and a tendency to allow their personal opinions to cloud legal judgment are appointed to superior courts.” “......Judges who use their position as a platform to express personal views can batter the reputation of the judiciary.” 18. Let us peer a little more closely at that mirror. What do we find? 19. We find Judges making references on decisions they are not in agreement with and then adorning the Larger Benches sitting upon the reference. If this is not bad enough, we find the judgment on the reference delivered by the one making the reference. [for example, 2012 (2) CTC 369 , 2017 (1) L.W. (Crl.) 485 and 2017 (1) L.W. (Crl.) 149]. The decisions might even be right, but is it proper? 20. It is to the credit of this august institution of ours that none of our First Among Equals, have played favourites. It is for the individual Judges making the reference to recuse themselves when by an administrative slip they are called to join the Bench answering the same. 21. In days gone by those who went about thumping their chests were looked upon with a little consternation and even with disdain. Nowadays, such are the people who are celebrated. While huge pendency of cases would justify a push for early disposal it would not justify a rush therefor as this institution can ill afford to sacrifice quality at the alter of quantity. Many a senior counsel has expressed misgivings over criminal appeals being dismissed at the stage of admission. Many inform that petitions seeking suspension of sentence pending appeal are not even taken up for consideration. This is disconcerting if one keeps in mind that right of one appeal is a constitutional right. Many a senior counsel has expressed misgivings over criminal appeals being dismissed at the stage of admission. Many inform that petitions seeking suspension of sentence pending appeal are not even taken up for consideration. This is disconcerting if one keeps in mind that right of one appeal is a constitutional right. Should it not concern us that many senior counsel inform of being of the view that it was time to hang up their gowns? When senior counsel express such views can Advocates to whom tomorrow belongs be blamed for suffering in silence and on consideration of the shelf-life of a Judge? Spineless subservience has never been and never can be the hallmark of an Advocate. We would quote, particularly for the benefit of younger lawyers, the following from the decision in Munster vs. Lamb, 11 Q.B.D. 588: “Of the three classes judge, witness, and counsel it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows; he is not called upon to consider, whether the facts with which he is dealing are true or false. What he has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public.” 22. We have no reason to think that if Advocates went about their arduous task courteously and without disrespect, Judges of this Court would, within reasonable limits, permit them to pursue their persuasions.