Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 739 (RAJ)

Prakash Kumar S/o Madan Lal v. Union of India

2024-05-06

FARJAND ALI

body2024
ORDER : 1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein-below: S. No. Particulars of the Case 1. FIR Number 03/2023 2. Concerned Police Station CBN New Delhi 3. District New Delhi 4. Offences alleged in the FIR Under Sections 8/21, 22, 28, 29, 30 & 35 of the NDPS Act 5. Offences added, if any ----- 6. Date of passing of impugned order 19.01.2024 2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. 3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 4. I have considered the submissions made by both the parties and have perused the material available on record. 5. The petitioner is behind the bars in this case for the allegation that when the preventive forces of Central Bureau of Narcotics made a sudden inspection of Dwarkadhish Medical Store, which was being operated by the petitioner; certain quantity of medicinal drug were recovered from the medical store and the bills were not shown to the authorities. 6. As a matter of fact, the petitioner is having a valid and effective drug license and running the medical store as per the rules and regulations. The bills of all the medicines available in the shop were later submitted to the agency and to this Court as well. PW.1 – Seizure Officer Pradeep Kumar has been examined. The petitioner is behind the bars since 12.03.2023 but only one witness has been examined till date. 7. It is the case of the prosecution that certain quantity of contraband Tablet Buprenorphine was recovered from the Medical Store run by the petitioner. As a matter of fact, sale of Tablet Buprenorphine by a licenced medical store is not expressly barred or prohibited under the Statute. 7. It is the case of the prosecution that certain quantity of contraband Tablet Buprenorphine was recovered from the Medical Store run by the petitioner. As a matter of fact, sale of Tablet Buprenorphine by a licenced medical store is not expressly barred or prohibited under the Statute. The Directorate General of Health Services, Central Drug Standard Control Organization, Government Of India had approved Sublingual tables of Buprenorphine 2mg, 0.4 mg on the condition that the same shall be supplied only to the designated De-addiction centres set up by the Government of India funded by the Ministry of Health and Ministry of Social Justice and Empowerment, hospitals with De-addiction facilities. No rule and regulation has been framed in this regard, however, a letter dated 23.03.2019 addressed to All State/Union Territories Drug Controllers revealing that upon the request of association of Psychiatrists, the proposal for deletion of the condition was deliberated upon. The relevant part of the letter referred above is being reproduced herein-below: In place of: “The preparation shall be supplied only to the designated De-addiction centres set up by the Governemnt of India funded by the Ministry of Health and Ministry of Social Justice & Empowerment and Hospitals with De-addiction facilities and a list of the centres to whom supply of the drug is made should be made to the office of Drugs Controller General (I) periodically indicating the qunatity supplied to each centres.” Read as: “The preparation shall be supplied to Psychiatric clinics and hospitals in addition to the designated De-addiction centres set up by the Government of India funded by the Ministry of Health and Ministry of Social Justice & Empowerment and Hospitals with De-addiction facilities and a list of the centres to whom supply of the drug is made should be made to the office of Drugs Controller General (I) periodically indicating the quantity supplied to each centres.” In view of above, you are requested to stipulate the above condition while granting licensed to the manufacturers of the said products. You are also requested to direct the existing manufactures of th said products to comply with above conditions. Yours faithfully Sd/- (Dr. S. Eswara Reddy) Drugs Controller General (India)” 8. what is emanating from the above that as such there is no statutory bar and there is no rule or regulation prohibiting sale of Buprenorphine at a licensed medical store. You are also requested to direct the existing manufactures of th said products to comply with above conditions. Yours faithfully Sd/- (Dr. S. Eswara Reddy) Drugs Controller General (India)” 8. what is emanating from the above that as such there is no statutory bar and there is no rule or regulation prohibiting sale of Buprenorphine at a licensed medical store. The letter dated 23.3.2019, if taken an order of the Drug Controller Of India, even then it is revealing that the preparation shall be allowed to be supplied to psychiatric clinics and hospitals as well as at the De-addiction Centres. It has been pleaded that the area within which the medical store is situated is having number of drug addicts and De-addiction Centres are also operating there. Some psychiatric and doctors of government hospital used to prescribe the above medicine in routine. In support of their contention affidavit of Dr. Jagdish Vishnoi Divisional Chief Medical Officer Sarnau (Jalore) and Dr Mohan Lal Medical Officer, APHC Keriyar submitted before this Court along with their identity and certification. A perusal of the affidavits revealing that the doctors of that area used to prescribe the above mentioned medicine for the cure and recovery of patients of drug addict. The affidavit expressly has a mention that the doctors referred above had instructed rather made a request to the medical store of the petitioner to make available the tablet Buprenorphine for easy facility of the patients. It is pleaded that at one hand they have valid and effective drug license to keep the medicine along with bills and vouchers, and on the other hand, there is no statuary bar to keep the above tablet at the medical store and further that local Medical Officer Dr. Jagdish and Dr. Mohan Lal had instructed the petitioner firm to keep available the tablet Buprenorphine with his medical store, so as to facilitate the patients of drug addicts, and therefore, certain quantity of tablet Buprenorphine was there in the medical store. 9. There is one other aspect of the matter that the prosecution has failed to record the statement of any witness or consumer to say that the tablet Buprenorphine was sold to them by the petitioner without the prescription of psychiatric even it is revealing that there is no evidence of selling the tablets. 9. There is one other aspect of the matter that the prosecution has failed to record the statement of any witness or consumer to say that the tablet Buprenorphine was sold to them by the petitioner without the prescription of psychiatric even it is revealing that there is no evidence of selling the tablets. Apparently, the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied wit in respect of search and seizure of the tablets. 10. As far as the question of fetter contained under Section 37 of NDPS Act is concerned this court is aptly guided by a recent ruling titled Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No. 915 of 2023 order dated 28.03.2023, Hon'ble the Supreme Court has discussed Section 37 of the NDPS Act in detail and has allowed the accused in that matter to be released on bail while holding that the impediment contained under Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial. 11. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No. 4169/2023, Hon'ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21. 12. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, more than two years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C. although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner. 13. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.