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2021 DIGILAW 315 (ORI)

Manoj Kumar Bhuyan And Other v. State Of Orissa

2021-07-15

SAVITRI RATHO

body2021
ORDER 1. These matters were heard through video conferencing mode. Justice Indira Bannerji in her dissenting opinion in the case of Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1 has observed as follows: ".... 2. The illicit production, distribution, sale and consumption of drugs and psychotropic substances, is a crime of multi-dimensional magnitude, that imposes a staggering burden on the society. In an Article "Narcotic Aggression and Operation Counter Attack" published in the Mainstream dated March 7, 1992, V.R. Krishna Iyer, J. said:- "Religion is opium of the people, but today opium is the religion of the people, and like God, is omnipresent, omnipotent and omniscient. Alas! Opium makes you slowly ill and eventually kills, makes you a new criminal to rob and buy the stuff, tempts you to smuggle at risk to become rich quick, makes you invisible trafficker of psychotropic substances and operator of a parallel international illicit currency and sub rosa evangelist mafia culture. Drug business makes you if not killed betimes, the possessor of pleasure, power and empire. What noxious menace is this most inescapable evil that benumbs the soul of student, teacher, doctor, politician, artists and professional, and corrupts innocent millions of youth and promising intellectuals everywhere " 3. In the words of Krishna Iyer, J., "the global scenario in its sombre macabre, devouring delinquency, is dominated by drug abuse and narcotic trade. Trafficking in drugs and psychotropic substances is not any local or regional crime confined only to India and third- world countries, but is a worldwide phenomenon. All nations including India, had huge drug abuse as a threat to the survival of human beings. " 4. Illicit drug trafficking is an organised crime, highly sophisticated and complex. This illicit traffic, cleverly carried out by hardened criminals with dexterity and skill, not only violates national drug laws and international conventions, but also involves many other criminal activities, including racketeering, conspiracy, bribery and corruption of public officials, tax evasion, banking law violations, illegal money transfers, import/export violations, crimes of violence and terrorism. 5. Narcotics are often supplied for money and also in exchange for weapons. There are numerous drug trafficking mafia yielding, immense power in various regions of the world, including India. The far-reaching consequences of illicit drug trade, even threatens the integrity and stability of governments and renders law enforcement action vulnerable. 6. 5. Narcotics are often supplied for money and also in exchange for weapons. There are numerous drug trafficking mafia yielding, immense power in various regions of the world, including India. The far-reaching consequences of illicit drug trade, even threatens the integrity and stability of governments and renders law enforcement action vulnerable. 6. Considering the huge profits derived by drug barons from rampant consumption of opium and other narcotic drugs, tycoons of the drug cartels, who have international links, go to any extent, to exploit and manipulate unhealthy economic conditions, as well as corruption and weaknesses in the administration, to push drugs into the society, in complete disregard of the health, morality and well- being of the people.'".... Here is a case, where a case under Section 21 (c) and 29 of the NDPS Act was registered against the four petitioners as 3500 bottles of Eskuf cough syrup allegedly containing codeine were recovered from them, which they allegedly confessed was being taken for drugging purpose. In view of the large quantity of the cough syrup seized, it was the duty of the prosecution to conclude the investigation without leaving any loose ends or lacuna. But although almost one year has elapsed since the case was registered and charge sheet is stated to be filed, neither the chemical analysis report nor any materials in support of the allegation that the petitioners were indulging in sale of the cough syrup for drugging purpose other than recording a confession of two lines that they are guilty, has been produced before this Court. I have heard Mr. Aditya Kumar Mohapatra, learned counsel for the petitioner- Manoj Kumar Bhuyan in BLAPL No. 6438 of 2020, Mr. Lalitendu Mishra, learned counsel for the petitioner-Debasis Roypitam in BLAPL No.6706 of 2020, Mr. V. Mohapatra, learned counsel for the petitioner Jyotish Kumar Kanungo in BLAPL No. 6520 of 2020 and Mr. Binaya Kumar Mohanty, learned counsel for petitioner-Mrutyunjay Sahoo in BLAPL No.6624 of 2020 and Mr. G.N. Rout, learned Additional Standing Counsel for the State of Orissa in all the four cases. These are applications under Section 439 of Cr.P.C. for grant of bail to the petitioners in connection with Baseli Sahi P.S. Case No.213 of 2020 corresponding to Special G.R. Case No. 104 of 2020 pending in the Court of the learned Special Judge, Puri for commission of offences punishable under Section 21 (c)/29 of the N.D.P.S. Act. These are applications under Section 439 of Cr.P.C. for grant of bail to the petitioners in connection with Baseli Sahi P.S. Case No.213 of 2020 corresponding to Special G.R. Case No. 104 of 2020 pending in the Court of the learned Special Judge, Puri for commission of offences punishable under Section 21 (c)/29 of the N.D.P.S. Act. The allegations in brief are that on 17.08.2020 at about 9.45 A.M., while the informant- S.I. of Baseli Sahi Police Station along with his staff was doing MV checking/naka duty at Mangalaghat Chhak under Baseili Sahi P.S., they stopped two Maruti Suzuki Swift Dzire car bearing Registration No.OD-02-U-7006 and OD-02-AG-1094 moving towards Puri. Accused Mrutunjay Sahoo was driving the car bearing Registration No.OD-02-AG-1094 in which the accused Debashis Raypritam was sitting whereas accused Manoj Kumar Bhuyan was driving the car and accused Jyotish Kumar Kanungo was sitting in the car bearing Registration No.OD-02-U-7006. Some jerry bags were found loaded in the cars and on being questioned the accused persons stated that they were frequently transporting and selling cough syrup for drugging purpose in Puri, Khurda and Nayagarh area. In the presence of two independent witnesses, the cars were searched five bags each kept in the middle space and behind the dickey were found in sealed condition. In the presence of the independent witnesses and Executive Magistrate, the jerry bags were opened and 3500 Eskuf Syrup bottles of 100ml each, having composition of Codeine Phosphate & Chlorpheniramine Maleate, were recovered and seized. 1750 bottles of cough syrup and Maruti Suzuki Swift D Zire car bearing Registration No.OD-02-U-7006 were seized vide from Manoj Kumar Bhuyan and Jyotish Kumar Kanungo vide one seizure list and 1750 bottles of cough syrup and Maruti Suzuki Swift D Zire car bearing Registration No.OD-02-AG-1094 were seized vide another seizure list from Debasish Roypitam and Mrutyunjay Sahoo. On being questioned the accused persons stated huge quantity of Eskuf compositions of codeine phosphate and chlorpheniramine maleate syrup are stored in House No.6, Ground floor, Binayak Enclave, Kolthia, Khandagiri, pursuant to which the informant along with the Executive Magistrate searched the house and seized 5000 x 100 ml bottles of Eskuf cough syrup vide another seizure list. FIR was registered and the seized articles were deposited in the Police Malkhana on that day. On the next day, the accused persons and the seized articles were produced in Court. FIR was registered and the seized articles were deposited in the Police Malkhana on that day. On the next day, the accused persons and the seized articles were produced in Court. Twenty samples of the cough syrup were forwarded to the Director of State Forensic Science Laboratory (in short "SFSL") the next day, i.e 18.08.2020. Charge sheet dated 30.10.2020 -has been filed against the petitioners for the commission of offences under Section 21(c)/ 29 of the NDPS Act. It is necessary to note that when BLAPL No. 6438 of 2020 and BLAPL No. 6706 of 2020 were reserved for orders, the learned Additional Standing Counsel had been directed to submit the case diary and had been granted time to obtain the chemical examination report. He has submitted the case diary in two parts on 14.04.2021. One part of case diary has been sent to the Office of the Advocate General ,by the IIC Baseli Sahi Police Station vide letter dated 30.09.2020 and contains. CD. No 1 to III and entries up to 21.08.2020 only. Vide letter dated 20.10.2020 another part of the case diary containing CD No. IV to VIII alongwith the final form has been sent by the IIC basely Sahi Police Station. There is a mention in the case diary on 01.09.2020 that the petitioners do not have any criminal antecedents .There is no mention of receipt of the chemical analysis report in the case diaries. After BLAPL No 6520 of 2020 and BLAPL No.6624 of 2020 were heard and reserved for orders, and the case diary was perused, the copy of the chemical examination report was not found in the case diary, for which all the four cases were listed together on 21.06.2021 under the heading "To be mentioned". The matters could not be taken up on that day due to bad internet connectivity and were listed the next day i.e on 22.06.2021 for "Orders" and further hearing taken up. On that day Mr. G.N .Rout, learned Additional Standing Counsel clarified that the chemical examination report had not been filed as it had not been received from the State Forensic Science Laboratory. Further hearing was taken up and the hearing in the cases was closed on that day. Till date, the same has not been filed/ submitted for perusal of this Court. G.N .Rout, learned Additional Standing Counsel clarified that the chemical examination report had not been filed as it had not been received from the State Forensic Science Laboratory. Further hearing was taken up and the hearing in the cases was closed on that day. Till date, the same has not been filed/ submitted for perusal of this Court. I have duly considered the submissions of the learned counsel for the parties and gone through the case diary. I have also perused the impugned order of the learned Special Judge, the written notes of submission and gone through the decisions relied on by the learned counsels for the petitioners and the learned Additional Standing Counsel. Perusal of the case diary reveals that on 17.08.2020 at 9.00 p.m., the informant -Biplab Kumar Behera, S.I. of Police Baseli Sahi Police Station drew up plain paper FIR and Baseli Sahi P.S Case No.213 was drawn up and S.I. S.K Behera was directed to take up investigation and charge of investigation and custody of the seized articles, bulk packets of Eskuf cough syrup , accused persons and documents of the case were handed over to S.I Sri S.K Behera for further investigation and he received charge of the investigation and of their (strangely) at 7.15 p.m. seized twenty numbers of Eskuf cough syrup containing 8500 bottles in sealing condition and kept them in the police station malkana on at 7.15 pm and thereafter examined two other and the accused persons. The following identical entry in respect of each of the accused persons is available in the case diary:- "Examined the marginally noted accused person. On examination, he confessed his guilty and no cited defense". No separate statement of the accused persons is available in the case diary. Mr. Aditya Kumar Mohapatra, learned counsel for the petitioner Manoj Kumar Bhuyan has submitted that the petitioner is the proprietor of M/s. Minu Enterprises and he has been issued whole seller licence in Form 20-B, 21-B and 20-G in respect of Drugs other that Schedule C and C( I ) and X drugs, which includes "Schedule H" drugs, Schedule C and C( I ) drugs; and Schedule X drugs respectively which were valid perpetually till they were suspended or cancelled and which authorise him to sell , stock or exhibit or offer for sale or distribute wholesale drugs. The cough syrups seized in this case fall within the ambit of Scheduled H Drug which are covered by these licences and have been procured under valid documents - tax invoices and way bills. On 11.08.2020 number of orders had been placed for Eskuf Cough syrup bottles with manufactures and the same was received on 13.08.2020 at Bhubaneswar and were being taken for distribution and supply to licensed medicine shops and retailers in Puri. As per conditions of the licence granted to him, he is authorised to sell, stock, exhibit or offer for sale, distribute wholesale drugs. Relying on the definition of the word "distribute" in Blacks Law Dictionary 6th edition, with respect to distribution of a dangerous drug, and the decision reported in AIR 1962 Bombay 21 : State of U.P. vs. Nathumal Dhanumal , he has submitted that transportation of the cough syrup was covered under his licence. The copy of the forwarding letter of the Dy Drugs Controller and the licences have been filed as Annexure 2, copies of the way bills as Annexure-3 Series and copies of invoices as Annexure-4 Series and list of retention products as Annexure-5 series. Although these documents were produced before the police, but they did not accept the same and arrested the petitioners stating that they could not produce any documents in support of possession of the Cough syrup and confessed their guilt. He has further submitted that the learned Court below has recorded its satisfaction that the seized Cough syrup was procured under valid documents but on the ground that there were no documents for its transportation, erroneously proceeded to consider the case as one under the NDPS Act and rejected the prayer for bail holding that the bar under Section-37 of the NDPS Act would be attracted. It was further submitted that the same could at best be construed as a violation of the provisions of the Drugs and Cosmetics Act and there is no allegation by anybody that he has ever sold it in the open market to other persons. It was further submitted that the same could at best be construed as a violation of the provisions of the Drugs and Cosmetics Act and there is no allegation by anybody that he has ever sold it in the open market to other persons. The content of codeine phosphate in the cough syrup was less than 100 mgs per dosage unit and less than 2.5 % in undivided preparations and as it was meant for supply to licenced medicine shops it is a Schedule H drug under the Drugs and Cosmetics Act and not a manufactured drug or substance under Sec -2 (xi)(b) of the NDPS Act. He has relied on the Memo dated 26.10.2005 of the Director General, Health Services where it has been mentioned that in view of Entry No 35 of Notification Number S.O. 826(E) dated 14th November 1985 under the NDPS ACT and Rules, codeine and ethyl morphine and their salts and all dilutions and preparations within the limit prescribed in the Entry and established in therapeutic practice, will not fall under the provisions of the NDPS Act and Rules of 1985 but under Schedule H drugs of the Drugs and Cosmetics Rules and are governed by the said Rules. Referring to the case of Mohd. Sahabuddin vs. State of Assam : (2012) 13 SCC 491, he has submitted that in that case, the Hon'ble Supreme Court rejected the prayer for bail of the driver and the cleaner of the truck who had surreptitiously concealed the cough syrup under household articles in the truck and could not produce any documents in support of their possession and the chemical analysis report in that case indicated that codeine phosphate beyond the prescribed quantity was detected in the cough syrup. In the present case, the petitioner had a valid licence, tax invoices, and way bills in support of procurement of the cough syrup and chemical analysis report has not been produced to show that the cough syrup contained codeine beyond the prescribed quantity for which no case under the NDPS Act is made out against them and Section 37 of the NDPS Act will not be attracted in this case. His further submission is that the petitioner who suffers from various cardiac ailments had undergone open heart bypass surgery in 2018, had been granted interim bail for six weeks pursuant to order passed in LA. His further submission is that the petitioner who suffers from various cardiac ailments had undergone open heart bypass surgery in 2018, had been granted interim bail for six weeks pursuant to order passed in LA. No. 1094 of 2020 for his treatment and as per the affidavit filed by his father, he has surrendered voluntarily on 08.03.2021 as LA. No. 135 of 2021 filed for extension of time could not be taken up. Thereafter he is suffering in custody due to lack of proper medical facilities and in constant dread of contracting Covid-19 due to overcrowding in the jail. He has also submitted that the petitioner has no criminal antecedents and charge sheet has been filed by the police hastily in the case without considering the valid licences, tax invoices and purchase documents in his possession pertaining to the seized cough syrup and without waiting for the chemical analysis report, which may have made out a case under the NDPS Act if the codeine content was found to be more than the permissible quantity. Apart from the decision in State of Nathumal Damumal (supra) and Mohd. Shahubbdin (supra), he has relied on the following decisions in support of his prayer for bail: 1. Amrik Singh vs. State of Punjab : 1996 CrLJ 3329 . 2. Deep Kumar vs. State of Punjab : 1997 (2) Crimes 732 (P&H). 3. Rajeev Kumar vs State of Punjab : 1998 CrlLJ 1460. 4. State of Uttaranachal vs. Rajesh Kumar Gupta : (2007) 1 SCC 355 . 5. Sandeep Kumar vs. State of Punjab: CRM M 14264 of 2013. 6. Union of india vs. sanjeev vs. Deshpande (2014) 13 SCC 1 . 7. Ashok Kumar vs. Union of India : (2015) 2 ALJ 193. 8. Niranjan Basti vs. State of Orissa : BLAPL No. 8326 of 2020 decided on 23.03.2021. Mr. V. Mohapatra learned counsel for the petitioner- Jyotish Kumar Kanungo has submitted that states that he was travelling in the car as an employee of M/s. Minu Enterprises owned by the co accused Manoj Kumar Bhuyan and nothing incriminating has been seized from him. He further states that as the co accused was a licenced distributor of the cough syrup, there was no illegality in transporting the cough syrup and the learned Court below has erroneously rejected his prayer for bail. He further states that the petitioner has no criminal antecedents. He further states that as the co accused was a licenced distributor of the cough syrup, there was no illegality in transporting the cough syrup and the learned Court below has erroneously rejected his prayer for bail. He further states that the petitioner has no criminal antecedents. Learned Counsel for petitioner Debasis Roypitam has submitted that he has a B Pharma certificate from the Odisha Pharma Council and is an employee of co accused Manoj Kumar Bhuyan and the latter had valid drug licenses, tax invoice and way bills for possession for procurement and possession of the cough syrup and even though these documents were available, the police ignored the same and registered the FIR in order to harass them. He further states that he has no criminal antecedents and that he had no knowledge or control over the quantity or quality of goods. In the note of submission submitted on behalf of the petitioner, it has been urged that Eskuf cough syrup which has been seized is covered under the drugs and Cosmetics Act and as per Rule 65 and 97 of the Drugs and Cosmetics Rules, it is lawfully permissible to store, transport and sell it as a "Schedule H" drug on the prescription of a medical practitioner and therefore no offence under the NDPS Act is attracted. He also relies on the case of Mohd. Sahabuddin (supra). It is the submission of both petitioners Manoj Kumar Bhuyan and Debasis Roypitam that as 1750 bottles of cough syrup have been seized from each vehicle and as per the licence of the manufacturer, 4mg of Codeine is there in each 5ml dose and each bottle consists of 100ml of cough syrup , hence the total codeine concentrate is 700gms (100/5 xlOmg 3500). The commercial quantity of codeine being lkg as per the schedule in the NDPS Act, a case under Section 21(c) /29 of the NDPS Act is not made out against the petitioner and hence Sec- 37 of the NDPS Act will not be attracted as petitioner Manoj Kumar Bhuyan had the licence to deal with Schedule C, C(I) and X drugs which include the cough syrup which is a Schedule H drug and violation of its terms will attract penalty (fine) under the Drugs and Cosmetics Act. Learned Counsel for petitioner Mrutyunjay Sahoo has submitted that the petitioner is in judicial custody since 18.08.2020 and that his mother Snehalata Sahoo is the owner of the vehicle bearing Regd. No.OD-02AG-1094 and the petitioner is the driver of that vehicle. He further submits that the petitioner has no criminal antecedents. He states that the car had been hired by co accused Manoj Kumar Bhuyan and he was unaware as to what was in the jerry bags. Even otherwise, as the co-accused had the licence to store and distribute cough syrup, no case under the NDPS Act is made out and the learned Court below has illegally rejected his prayer for bail. Mr. G.N. Rout, learned Addl. Standing Counsel for the Opp. Party - State of Odisha has opposed the prayers for bail stating that as the cough syrup was not meant for therapeutic purpose, as per the notification of the Central Govt and the decision of the Hon'ble Apex Court, the entire quantity i.e 3500 bottles of cough syrup has to be taken into account, for which a case under Section -21 (c) of the NDPS Act is clearly made out against the petitioners and they cannot be granted bail unless the requirements in section 37 of the NDPS ACT are satisfied. In his written note of submission, he relies on the GOI Notification S.O. 826 (E) dated 14.11.1985 which states that Codeine and Ethyl Morphine and their salts, all dilutions and preparations "except those compounded with one or more other ingredients and containing not more than lOOmgs of the drug per dosage unit and with a concentration not more than 2.5 % in undivided preparations and which have been established in therapeutic practice , is a narcotic drug (Annexure A/1 to his note) and that as per GOI Notification vide S.O.826 (B) "Methyl morphine (commonly known as codeine) is a manufactured drug. He relies on Notification of the Central Govt to submit that the contravention involves commercial quantity as requirement for therapeutic practice is not satisfied, for which the entire 100 ml content of cough syrup would fall within the penal provisions of NDPS Act as per para 12 of the decision of the Apex court in the case of Mohd. Sahabuddin (supra). Sahabuddin (supra). In view of the huge quantity of cough syrup seized , and failure of the accused to produce documents in support of transportation of the syrup and their confession that it was meant to sold as drugs, the entire quantity of cough syrup has to be taken into account for which a case under Section 27 (c) of the NDPS Act for possession of "commercial quantity" of codeine - a manufactured drug is made out and in view of the prohibition laid down under Section 37 of the N.D.P.S. Act, the prayers for bail should be rejected. He however does not dispute the fact that the petitioners have no criminal antecedents and copies of the documents annexed to the bail application in BLAPL No.643 8 of 2020 reveal that accused Manoj Kumar Bhuyan has valid drug licences sell, stock or exhibit or offer for sale or distribute wholesale drugs, and tax invoices and way bills in support of procurement of the cough syrup and that chemical analysis report in respect of the cough syrup has not been received till date. Amrik Singh (supra) was a case under Section - 482 Crl.P.C for quashing proceedings registered under Section - 21/61/85 of the NDPS Act filed by a holder of a drug licence and carrying on business as a retail chemist. Proceedings were quashed on the ground that Phensedyl is excepted under Item 35 of the Notification and mere apprehension that this drug is being misused will not bring it within the mischief of Section- 21 of the NDPS Act. Sandeep Kumar (supra) was a case under section - 482Cr.P.C for quashing proceedings under Section-22 of the NDPS Act filed by a registered pharmacist who was the proprietor of a Medicine shop from whom 800 bottles of Rexcof had been recovered. Sandeep Kumar (supra) was a case under section - 482Cr.P.C for quashing proceedings under Section-22 of the NDPS Act filed by a registered pharmacist who was the proprietor of a Medicine shop from whom 800 bottles of Rexcof had been recovered. Referring to the report of the Committee constituted by the State Government to see whether such cases are covered under the NDPS Act or Drugs and Cosmetics Act and its decision in Jagjit Singh vs. State of Punjab, CRM-M-5632 of 2010 (O&M) decided on 16.07.2012, and the letter dated 26.10.2005 written by the DGCI, to all State Drugs Controllers regarding sale of cough syrups containing codeine phosphate, held that even though the cough syrup contained Codeine Phosphate and Chlorpheniramine Maleate being covered under serial no 35 of the Notification No. SO-826(E) dated 14.11.1985 do not attract the punitive provisions of the NDPS Act especially when the petitioner therein is a holder of licence and has purchased the medicines through valid bill and quashed the proceedings. In the case of Ashok Kumar (supra), the proceedings in a case registered under Section- 8, 21, 25, 29 of the NDPS Act were challenged in an application under Section-482 of the Code of Criminal Procedure. The court held that Phensedyl Cough Syrup falls within the exception provided under the NDPS Act and therefore its possession with licenced stockists should not invite the penalties under the NDPS Act in the facts and circumstances of the case is required to be considered as a drug under the Drugs and Cosmetics Act and no offence under Section 8/21 read with Section - 29 NDPS Act is made out even if the allegations are accepted and quashed the proceedings. Deep Kumar (supra) was again an application under Section-482 Cr.P.C. for quashing the FIR registered under Section 21 of the NDPS Act by the partners of a firm who are carrying on business of chemist and druggists having a valid drug licence and having applied for renewal and they are the authorised stockists of a number of companies dealing in wholesale medicines to be supplied to retailers. The Court considered the question whether the drugs seized fall within the definition of "manufactured drug" or "psychotropic substance" under the NDPS Act with reference to Notification No. SO 826 (E) dated 14.11.1985 and considering the quantity of codeine sulphate apart from others substances, held that it did not fall within the ambitof manufactured drugs and no offence under Section 21 and 22 of the NDPS Act was made out and it was for the Drugs Inspector to initiate action in accordance with the Drugs Act or Rules and quashed the FIR. In the case of Rajeev Kumar (supra), the proceedings in a case registered under Section-22 of the NDPS Act were challenged in an application under Section-482 of the Code of Criminal Procedure by the proprietor of a Medicine shop carrying on business as of wholesale chemists under a valid drugs licence authorising to sell, stock , exhibit (or offer) for sale or distribute by retail the categories of drugs specified in Schedule C and C(I) excluding those specified in Schedule X to the Drugs and cosmetics Rules, 1945 and to operate a pharmacy. The Punjab and Haryana High Court quashed the FIR and consequent proceedings, holding interlia that Phensedyl liquid contained Codeine Sulphate with the permissible limits, hence it falls within the excepted category and that the plea of the prosecution that the preparation in question is being used for intoxication purposes is not enough for prosecution of the petitioner and that none of the drugs allegedly seized from possession of the petitioner fall within the mischief of "narcotic drugs and psychotropic substances" as defined in the Act and are "drugs or medicines" as defined in the Drugs and Cosmetics Act 1940 and if at all there is contravention complaint by the Drugs Inspector to the Court and not FIR and not prosecution by the police. In the case of Rajesh Kumar Gupta (supra) the Hon'ble Supreme Court, considered the case of an Ayurvedacharya from whose premises, 70 Kgs of pure phenobarbitone was recovered and he was proceeded against for commission of offences under Section-8 read with Section -22 of the NDPS Act. In the case of Rajesh Kumar Gupta (supra) the Hon'ble Supreme Court, considered the case of an Ayurvedacharya from whose premises, 70 Kgs of pure phenobarbitone was recovered and he was proceeded against for commission of offences under Section-8 read with Section -22 of the NDPS Act. The Hon'ble Court held that Section-37 of the 1985 Act would prima facie have no application in view of the exception contained in Ssection-8 thereof read with the Rules relying on Rajinder Gupta vs. State: 123 (2005) DLT 55 and Pradeep Dhond vs. Intelligence Officer : Criminal Application No. 6787 of 2005 decided on 07.02.2006 by the Bombay High Court. This Court in BLAPL No. 8326 of 2020 (supra) has allowed the prayer of the accused as the codeine phosphate in the seized cough syrup came to 128 grams which is lesser than commercial quantity. At this juncture, it would be apposite to refer to few of the decisions of the Hon'ble Apex Court which are relevant for consideration of these bail applications. The Apex Court in its decision in Union of India vs. Sanjeev vs. Deshpande overruled it own judgment in State of Uttaranchal vs. Rajesh Kumar Gupta, (supra). It has interlia held: ...."80. Application of the Drugs and Cosmetics Act, 1940 not barred- The provisions of this Act or the rules made thereunder shall be in addition to, and not inderogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder. ", From a bare reading of the provision , it is apparent that a person can be proceeded against under the provisions of the Drugs and Cosmetics Act, 1940 and rules framed thereunder as well as for commission of an offence under the NDPSAct, 1985, so the above decisions are not of much use to the petitioners because , if it is found that the petitioners have violated any of the provisions of the NDPS Act, they cannot take the plea that only the provisions of the Drugs and Cosmetics Act will apply to them..... 35. In view of our conclusion, the complete analysis of the implications of Section 80 of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. 35. In view of our conclusion, the complete analysis of the implications of Section 80 of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. Of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act. "... It has been decided by the Hon'ble Apex Court in Hira Singh vs. Union of India reported as 2020 SCC Online SC 382 that in case of seizure of narcotics drugs or psychotropic substances mixed with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotics Drugs or Psychotropic Substances. One of the questions before the Hon'ble Supreme Court was as to whether while determining the small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substance(s), the quantity of neutral substance(s) is not to be taken into consideration or it is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. After a detailed reference to the various provisions of the NDPS Act and the notifications issued in that regard by the Government of India, the Hon'ble Supreme Court has observed as under :- "8.4. Even considering the definition of "manufacture", "manufactured drug" and the "preparation" conjointly, the total weight of such "manufactured drug" or "preparation ", including the neutral material is required to be considered while determining small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the objects and purpose of NDPS Act would be achieved. Any other intention to defeat the object and purpose of enactment of NDPS Act viz. to Act is deterrent". If it is interpreted in such a manner, then and then only, the objects and purpose of NDPS Act would be achieved. Any other intention to defeat the object and purpose of enactment of NDPS Act viz. to Act is deterrent". The contention of the learned counsels for the petitioners that the provisions of the NDPS Act will not be applicable to them is therefore fallacious and the cases of various High Courts on that point will not be of any help to them in view of the law laid down by the Hon'ble Apex Court in the case of Sanjeev vs. Deshpande (supra) and Hira Singh (supra). The decision of the Hon'ble Supreme Court in the case of Tofan Singh (supra), is also relevant in the facts of the case. In the said case, a three judge Bench had been called upon to answer the following questions: "1. Whether an officer "empowered under Section 42 of the NDPS Act" and/or "the officer empowered under Section 53 of the NDPS Act" are "Police Officers" and therefore statements recorded by such officers would be hit by Section 25 of the Evidence Act; and 2. What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act available to and exercisable by an officer under section 42 thereof, and whether power under Section 67 is a power to record confession capable of being used as substantive evidence to convict an accused" The Court answered the reference as follows:- ..... "155. We answer the reference by stating: (i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers " within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPSAct. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPSAct"...... Therefore the alleged confessions of guilt by the petitioners will not be of any help to the prosecution. In the case of Mohd. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPSAct"...... Therefore the alleged confessions of guilt by the petitioners will not be of any help to the prosecution. In the case of Mohd. Sahabuddin (supra), the Hon'ble Supreme Court rejected the prayer for bail of the driver and the cleaner of the truck who had surreptitiously concealed a huge quantity of cough syrup under household articles in the truck, holding interalia as follows:- ...."For transporting such a huge quantity of pharmaceutical products, the driver of the vehicle could not produce any valid documents. Further the chemical analysis of the contents of the cough syrup disclosed that it contained codeine phosphate beyond the prescribed quantity and, therefore, the articles were seized" .... ...."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" ..... "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 N.D.P.S. Act calling for appropriate punishment to be inflicted upon the appellants.. "..... 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 N.D.P.S. Act calling for appropriate punishment to be inflicted upon the appellants.. "..... But in the present case, while one of the petitioners (petitioner in BLAPL No.6438 of 2020) has filed copies licences under the drugs and licences rules, tax invoices and way bills relating to the cough syrup in support of procurement and possession of the cough syrup, the prosecution has not produced the chemical analysis report in support of its allegation that the cough syrup contained codeine let alone codeine beyond the prescribed limit. It is no longer res integra that fulfillment of the requirements as enumerated in Section 37 are a pre-requisite before granting bail to an accused who is alleged to have committed offences under the NDPS Act involving commercial quantity. One of the decisions on this aspect is the decision of the Hon'ble Supreme Court , is the Full Bench decision of the Hon'ble Supreme Court, rendered in the case of Satpal Singh vs. State of Punjab,: (2018) 13 SCC 813 . In the present case as I am of the opinion that in the absence of the chemical analysis report , it cannot be stated that the codeine content in the seized cough syrup is beyond the prescribed limit as contained in Exception 35 , the requirements of Section 37 of the NDPS Act are not required to be satisfied before granting bail. On a consideration of the facts of the case , the statutory provisions, the relevant notifications of the central Govt and the communication of DGCI and the decisions of the Hon'ble Supreme Court, I am of the considered view that: i) "Narcotic drug" has been described in Section -(xiv) of the Act and includes all manufactured drugs. On a consideration of the facts of the case , the statutory provisions, the relevant notifications of the central Govt and the communication of DGCI and the decisions of the Hon'ble Supreme Court, I am of the considered view that: i) "Narcotic drug" has been described in Section -(xiv) of the Act and includes all manufactured drugs. "Manufactured drugs" have been described in Section 2(xi) of the Act and 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 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 be a manufactured drug;" ii) Cough syrups containing codeine upto the prescribed limit (as per Entry No. 35 of the Notification) will not come within the definition of "manufactured drug" provided the drug is for therapeutic purpose or medicinal use. iii) Once it is found that the cough syrup is not for therapeutic purpose or medicinal use, or the percentage of codeine is more than the prescribed limit as mentioned in Exception No 35, it has to be considered to be a "manufactured drug" for which an offence under Section - 21 of the NDPS Act will be attracted, iv) A person can be proceeded against simultaneously for commission of offences under the NDPS Act as well as for violation of the provisions of the Drugs and Cosmetics Act and Rules under the Drugs and Cosmetics Act. v) Once the cough syrup is considered as a manufactured drug, attracting the provisions of section 21 of the NDPS Act, in order to ascertain whether the offence involves, "small quantity", " more than small quantity but less than commercial quantity" or "commercial quantity", the entire mixture / substance has to be taken into account. vi) If the quantity is a manufactured drug including commercial quantity, then Section - 21 (c) of the NDPS Act will be attracted and the requirements of Section - 37 of the NDPS Act have to be satisfied, for allowing the prayer for bail. vi) If the quantity is a manufactured drug including commercial quantity, then Section - 21 (c) of the NDPS Act will be attracted and the requirements of Section - 37 of the NDPS Act have to be satisfied, for allowing the prayer for bail. In the present case, the following facts emerge: i) Petitioner Manoj Kumar Bhuyan has valid licences under the Drugs and Controls Act and Rules, which authorise him to sell, stock or exhibit or offer for sale or distribute wholesale drugs and it the case of the petitioners that the cough syrup is covered under the licences and was meant for supply to medicine shops and licensed retailers. ii) Petitioners Jyotish Kumar Kanungo and Debasish Roypitam are his employees while Mrutunjay Sahoo is the driver of one of the vehicles from which part of the cough syrup was recovered. iii) Even though almost one year has elapsed since the date of occurrence and sending of samples to the SFSL, the chemical analysis report has not been produced inspite of sufficient opportunity being granted to the prosecution. In absence of the chemical analysis report, the presence let alone the quantity/percentage of codiene in the cough syrup cannot be ascertained. iv) Charge sheet has been filed under Section - 21(c) / 29 of the NDPS Act but no material has been produced by the prosecution before this Court to show that the drugs were meant for any purpose other than therapeutic or medicinal purpose except for the two line identical confessions recorded in the case diary, which cannot be relied upon as per decision of the Hon'ble Apex Court in the case of Tofan Singh (supra). v) The applications for bail are pending since more than six months. vi) There is no allegation that the petitioners have any criminal antecedents. In the above facts and circumstances in the absence of the chemical examination report, in my considered opinion, a prima facie case under Section-21 (c) of the NDPS Act is not made out against the petitioners. Hence satisfaction of the requirements of Section-37 of the NDPS Act are not necessary before granting bail. In the above facts and circumstances in the absence of the chemical examination report, in my considered opinion, a prima facie case under Section-21 (c) of the NDPS Act is not made out against the petitioners. Hence satisfaction of the requirements of Section-37 of the NDPS Act are not necessary before granting bail. In view of the aforesaid discussion, position of law and considering the submissions of the learned counsels, nature of materials available against the petitioners and their period of detention in custody and the alarming situation prevailing in the jails due to overcrowding during continued prevalence of the Covid-19, I am inclined to allow the prayer for bail of the petitioners but however granting liberty to the State of Odisha to apply for recall/modification of this order in the chemical examination report so warrants. Let the petitioners-Manoj Kumar Bhuyan, Debasis Roypitam, Jyotish Kumar Kanungo and Mrutyunjay Sahoo be released on bail on such terms and conditions as deemed just and proper by the learned Court in seisin of the case including the following conditions: i) The petitioners will not indulge in any criminal activity while on bail. ii) The petitioners will not tamper with evidence or try to influence prosecution witnesses. iii) The petitioners will appear at the Baseli Sahi Police Station once every alternate Sunday between 2.00 p.m. to 5.00 p.m. iv) The petitioners will appear in court on each date the case is fixed for trial. v) The petitioners will not leave the State of Odisha without prior permission of the learned trial Court. Violation of any condition will entail in cancellation of bail. Copy of the order be sent to the I.I.C. Baseli Sahi Police Station. Liberty is granted to the Opp. Party-State of Odisha to apply for recall/modification of this order in case the chemical analysis report so warrants. It is made clear that the observations in this order have been made for the purpose of deciding the bail application on basis of the materials produced before this Court and shall not, be taken as an expression of opinion on the merits of the case. Therefore, the trial court should proceed with the trial without being influenced by any of the findings or observations made in this order. The bail applications are accordingly allowed with the aforesaid observations. Therefore, the trial court should proceed with the trial without being influenced by any of the findings or observations made in this order. The bail applications are accordingly allowed with the aforesaid observations. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4798, dated 15th April, 2021.