Criminal Misc.No.M-654 of 2010 1 v. State of Punjab

regular bail in a case registered against him, vide FIR No.146 dated 9.7.2009, on accusation of having committed the offence punishable under sections 21 and 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as “the NDPS Act”) by the police of Police Station Malerkotla, District Sangrur, invoking the provisions of section 439 Cr.PC.

2. Notice of the petition was issued to the State and learned State counsel has seriously opposed the concession of bail to the petitioner.

3. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present petition.

4. Ex facie, the argument of the learned counsel that since the drugs/narcotic substance recovered from the possession of the petitioner do not constitute the commercial quantity under NDPS Act and fall within the schedule of Criminal Misc.No.M-654 of 2010 2 the Drugs and Cosmetics Act, 1940, so, he is entitled to regular bail, is neither tenable nor the observations of Hon'ble Apex Court in cases State of Uttaranchal v. Rajesh Kumar Gupta 2006 (4) R.C.R. (Criminal) 974 and D.Ramakrishnan v. Intelligence Officer Narcotic Control Bureau 2009 (4) RCR (Criminal) 315, are at all applicable to the facts of the present case, wherein it was not disputed that the medicines seized from the clinic of the accused come within the purview of Schedules G and H of the Drugs and Cosmetics Act. On the peculiar facts and circumstances of those cases, it was observed that none of the medicines recovered find placed in Schedule-I and the provisions of section 8 of the N.D.P.S.Act would have no application whatsoever.

5. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner at this stage. In the instant case, it is not a matter of dispute that as per the recovery memo, the following articles were recovered from the possession of the petitioner:-

1. One plastic drum containing intoxicating liquid 188.40 liter and two sample parcels of 180 ml. each.

2. One dabba plastic containing 2 kgs. intoxicating powder and two sample parcels of 25 grams each.

3. One parcel of thaila plastic containing intoxicating tablets marks ALNOK total 1,49,980 tablets and two sample parcels of 10 tablets each.

4. One parcel of thaila plastic containing intoxicating Parvon Spas Capsules total 2380 capsules and two sample parcels of 10 capsules each.

5. One parcel of thaila plastic containing intoxicating tablets marka ALPRAZOM-050 total 4,80,800 tablets and two sample parcels of 100 tablets each.

6. One parcel of thaila plastic containing intoxicating tablets marka Momolit total 29,800 tablets and two sample parcels of 100 tablets each.

7. One parcel of thaila plastic containing intoxicating injections marka ALWIN total 958 injections and two sample parcels of 1 injection each. Criminal Misc.No.M-654 of 2010 3

8. One parcel of thaila plastic containing intoxicating injections marka FORTWIN total 2856 injections and two sample parcels of 12 injections each.

9. One parcel of thaila plastic containing intoxicating tablets marka Lomotil total 85,800 tablets and two sample parcels of 100 tablets each.

10.One parcel of thaila plastic containing intoxicating injections marka AVIL total 328 injections and two sample parcels of 1 injection each.

11.One parcel of thaila plastic containing intoxicating injections marka PENTALAB total 24990 injections and two sample parcels of 5 injections each.

12.Fourteen parcels of gunny bag containing intoxicating small bottles marka REXCOF total 6718 and two sample parcels of 1 small bottle each.

13.Six parcels of thaila plastic containing intoxicating Pyeeon-Spas Capsule total 1,20,000 and one parcel of plastic bucket containing intoxicating capsules of PYEEON-SPAS total 12180 and two sample parcels of 10 capsules etc.

6. Meaning thereby, the major portion of quantity of intoxicating liquid/drugs and intoxicating powder was recovered from the possession of the petitioner and squarely falls within the ambit of narcotic drugs punishable under NDPS Act. Even as per the report of Chemical Examiner, the intoxicating drugs recovered from the possession of the petitioner constitute narcotic drugs punishable under NDPS Act.

7. Sequelly, the charge has already been framed against the petitioner by Judge, Special Court, Sangrur, vide order dated 27.5.2010 in the following manner and the case is fixed for evidence of the prosecution:- “That you on 09.07.09, at about after 06.30 A.M., in your residential house situated at Malerkotla, were found in possession of one drum containing 188 liter and 400 ml of liquored codeine-phosphate, one plastic box containing 2 kg. 500 gms. of intoxicate powder Alprazolam, 1,50000 Criminal Misc.No.M-654 of 2010 4 tablets of Alnok, one plastic box containing 2400 capsules of Parvon-spas, 4,81,000 tablets of Alprazon, 30,000 tablets of Momotil, 960 injections of Alwin, 2880 injection of Fortwin, 86,000 tablets of Lomotil, 330 injection of Avil, 25,000 injections of Pentalav, 6720 bottles of syrup Rexcof, 1,32,200 capsules of Pyeevon-spas without any valid permit or licence, details and chemical compounds of which have been mentioned in FSL Punjab, Chandigarh report and District Drug Inspector, Sangrur report and that you thereby committed an offence punishable Under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and within my cognizance.”

8. This is not the end of the matter. The affidavit dated 17.5.2010 filed by Sukhdev Singh Virk, Deputy Superintendent of Police, Sub Division, Malerkotla would reveal that the petitioner is also involved in other cases registered against him, vide FIR No.202 dated 9.10.2005 at Police Station City Malerkotla; FIR No.141 dated 13.11.2008 at Police Station Sadar Malerkotla and FIR No.20 dated 16.1.2009 at Police Station City Malerkotla on accusation of having committed the offence punishable under section 22 of the NDPS Act, in which, he has already been charge sheeted and is facing the trials. That means, as the petitioner is a habitual offender and repeatedly committed the offence under NDPS Act, therefore, he is not otherwise entitled to regular bail.

9. Thus, seen from any angle, as is evident from the record that the heavy/commercial quantity of contraband was recovered from the possession of the petitioner, therefore, he is not entitled to bail, in view of statutory bar as contemplated under section 37 of the NDPS Act in the obtaining circumstances of the case.

10. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the case, the instant petition is hereby dismissed. However, since the Criminal Misc.No.M-654 of 2010 5 petitioner has already been charge sheeted and the case is slated for evidence of the prosecution, so, needless to say that the trial Judge will expedite and conclude the trial, preferably within one year from the date of receipt of a copy of this order.

10.9.2010 (Mehinder Singh Sullar) AS Judge