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Rajasthan High Court · body

2019 DIGILAW 2605 (RAJ)

Bhoop Shah v. State

2019-09-26

VIJAY BISHNOI

body2019
ORDER : Vijay Bishnoi, J. 1. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the material available on record. 2. The petitioner has been arrested in FIR No. 50/2018 of Police Station Sadar, District Hanumangarh for the offences punishable under Sections 8/22 of NDPS Act and Section 18(C)/27(B)(II) of Drugs and Cosmetics Act. He has preferred this third bail application under Section 439 Cr.P.C. 3. Earlier two bail applications preferred on behalf of the petitioner were dismissed by this Court vide order dated 19.01.2019 and 27.02.2019 and now this third bail application is filed on behalf of the petitioner while contending that as per the prosecution story, 200 vials of Onerex Cough Syrup and 1500 Carisoprodol tablets were recovered from the petitioner. It is submitted that prosecution is claiming that Onerex Cough Syrup recovered from the petitioner contains Codeine narcotic substance which is banned by the Central Government by a notification and as such, the petitioner is guilty of commission of offence punishable under Section 8/22 of NDPS Act and Sections 18(C) and 272-(B)(II) Drugs and Cosmetics Act. 4. Learned counsel for the petitioner has submitted that so far as the Codeine is concerned, the same was banned by the Central Government vide notification dated 10.03.2016, however, the said notification was quashed by Delhi High Court vide judgment dated 01.12.2016 and thereafter pursuant to the direction given by the Hon'ble Supreme Court on 15.12.2017, the matter regarding ban of certain drugs was referred to the Drug Technical Advisory Board, which had issued a notification on 07.09.2018, whereby the Codeine was again enlisted in the banned list. 5. It is submitted that as per the prosecution story, the Onerex Cough Syrup containing Codeine was recovered from the petitioner on 11.02.2018 and on that date, the said Codeine was not enlisted in the banned list as the notification for the same was issued by the Central Government on 07.09.2018 only. It is further submitted that when the said Codeine was not enlisted in the banned list on the date when the same was recovered from the petitioner, it is clear that no offence under the NDPS Act is made out against the petitioner. It is further submitted that when the said Codeine was not enlisted in the banned list on the date when the same was recovered from the petitioner, it is clear that no offence under the NDPS Act is made out against the petitioner. It is submitted that the notification dated 07.09.2018 issued by the Central Government banning Codeine has been challenged before the Delhi High Court by way of certain petitions which are pending consideration. It is submitted that taking into consideration the above facts and circumstances of the case, the petitioner is entitled to be enlarged on bail. 6. Per contra, learned Public Prosecutor has opposed the bail application and submitted that as a matter of fact, after rejection of the second bail application of the petitioner on 27.02.2019, no substantial change in the circumstances has taken place. 7. Having heard learned counsel for the parties, this Court is of the opinion that the arguments raised by the learned counsel for the petitioner today were very much available to him on the date when the second bail application of the petitioner was dismissed. 8. Be that as it may, it is not in dispute that as on date Codeine is enlisted in the banned list. So far as the question whether on the date when recovery of the Onerex Cough Syrup containing Codeine was affected from the petitioner, the same was not enlisted in the banned list or not is concerned the same can only be decided after taking into consideration the evidence produced by the parties concerned before the trial court. 9. Having regard to the totality of the facts and circumstances of the case and looking to the nature of accusation and gravity of the offence, without expressing any opinion on the merits of the case, I am not inclined to grant bail under Section 439 Cr.P.C. to the petitioner. 10. Accordingly, the third bail application preferred by the petitioner under Section 439 Cr.P.C. is rejected.