Criminal Misc.No.M-9948 of 2010 v. Mr. Sherry K. Singla and Mr.Akshay Jain, Advocates

The petitioner seeks regular bail in case FIR No.43 dated

06.03.2010 registered against him for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act – for short) at Police Station Rampura, District Bathinda. The FIR in the case has been registered on the basis of memo sent by ASI Mohinderjit Singh, Police Station Rampura on 06.03.2010. It is submitted that ASI Mohinderjit Singh alongwith other police officials were patrolling and checking suspicious persons and also vehicles. They were present near Civil Hospital, Rampura and Head Constable Fauji Ram received secret information that Ashok Kumar (petitioner) had stored Criminal Misc.No.M-9948 of 2010 2 substantial quantity of intoxicating tablets, capsules, Rescof, Corex etc. which he had brought from outside and was selling them in his house. He had no licence or permit. It was further informed that if a raid was conducted in his house then huge quantity of intoxicating tablets, capsules, intoxicating bottles can be recovered. The said information was passed on by Head Constable Fauji Ram to ASI Mohinderjit Singh. The secret informer was considered reliable. Therefore, it was observed that Ashok Kumar (petitioner) by keeping in his possession intoxicating tablets, capsules, intoxicating bottles had committed an offence punishable under Section 22 of the NDPS Act. Accordingly, a memo was recorded against Ashok Kumar (petitioner) and through Constable Sukhdev Singh was sent to the police station for registration of FIR. The number of the FIR, after registration was asked to be intimated. ASI Mohinderjit Singh proceeded to conduct the raid. In the raid that was conducted, 684 Vials of Rexcof syrup, 92 vials of Corex syrup and 1250 Carisoma tablets were recovered from the house of the petitioner. Learned counsel for the petitioner has submitted that the recovered medicines are manufactured allopathic drugs and the provisions of NDPS Act would not apply in case the petitioner is indeed held to be in possession of the same. It is submitted that at the most an offence under the provisions of the Drugs and Cosmetic Act, 1940 can be said to be made out. The offence under Section 22 of the NDPS Act, it is submitted, is not made out. It is also submitted that Rexcof and Corex syrup contain “Codeine Phosphate” and the wrappers on the bottle of the same show that in 10 mg per 5 ml. of Codeine (phosphate) is contained. In other words each bottle of the syrup contains 200 mg of codeine phosphate which is permissible in Criminal Misc.No.M-9948 of 2010 3 view of the exception contained in notification No.826 (E) dated

14.11.1985, issued by the Central Government under the NDPS Act. Therefore, it is submitted that the recovered medicines do not constitute any offence. Learned counsel for the State has opposed the petition. It is submitted that the petitioner does not have any licence to store or keep in his possession the recovered articles. The recovery has been effected from his house and he is unable to explain as to for what purpose he had kept the same. Therefore, the offence, as alleged is clearly made out and the petitioner is not entitled to the concession of regular bail. I have given my thoughtful consideration to the contention of the learned counsel for the parties. As has already been noticed, 684 Vials of Rexcof syrup, 92 vials of Corex syrup and 1250 tablets of Carisoma were recovered. The petitioner was arrested with the case property on 06.03.2010 and since then he is in custody. The question whether the recovered articles fall under the NDPS Act, is to be considered and gone into by the investigating authorities or by the learned trial Court as the case may be after examining and ascertaining the facts and circumstances of the case. The notification No.826 (E) (Notification No.11 dated 14.11.1985) referred to by the learned counsel for the petitioner has been issued by the Central Government in exercise of the powers conferred by sub-clause (b) of Clause (xi) of Section 2 of the NDPS Act. It has been declared by the Central Government that the narcotic substances and the preparations as mentioned in the said notification to be “manufactured drug”. Section 2(xi) defines “manufactured drug” to mean:- Criminal Misc.No.M-9948 of 2010 4 “(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other 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 to be a manufactured drug;” At serial No.35, of the aforesaid Notification dated 14.11.1985, the following drug has been mentioned, which would mean to be a “manufactured drug”:- “Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more then 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice.” According to the learned counsel for the petitioner the drug containing Codeine are “manufactured drugs”. A reference has also been made to the wrappers of the Rexcof and Corex bottles. It is mentioned on the wrapper of the Rexcof bottle that each 5 ml contains 10 mg codeine, Criminal Misc.No.M-9948 of 2010 5 therefore, 100 ml contains 200 mg. of Codeine. 684 bottles of Rexcof were recovered and 684 x 200 would work out to 136800 mg or 136.8 grams of Codeine. On the wrapper of Corex bottle, it is mentioned that each 5 ml contains 10mg Codeine, therefore, 100 mg would contain 200 mg of Codeine. 92 bottles of Corex syrup were recovered and the Codeine recovered from the same works out to 200 x 92 i.e. 18400 mg. or 18.4 grams. The total quantity of Codeine which has been recovered, therefore, is 136.8 + 18.4 = 155.2 grams. The small quantity of Codeine (3-0- Methylmorphine), as per item No.28 of the notification dated 16.07.1996 specifying small quantity and commercial quantity is as mentioned 10 grams for small quantity and is one kg. for commercial quantity. Therefore, the percentage of the recovered Codeine is more than small quantity but less than commercial quantity. Insofar as, the recovery of 1250 Carisoma tablets are concerned, the same, it is stated, is a Schedule-H drug under the Drugs and Cosmetics Act, 1940. Carisoma tablets contain Carisoprodol. Rule 65 of the Drugs and Cosmetics Rules, 1945 (‘Rules’ – for short) provides for conditions of licence. It is envisaged therein that licence in Forms-20, 20- A, 20-B, 20-F, 20-G, 21 and 21-B shall be subject to the conditions stated therein and to the other general conditions as mentioned in Rule 65. Amongst the general conditions which are mentioned in sub-rule (3) (i) of Rule 65 are that the supply of any drug other than those mentioned in Schedule X on a prescription of Registered Medical Practitioner shall be recorded at the time of supply in the prescription register specially maintained for the purpose and the serial number of the entry in the register Criminal Misc.No.M-9948 of 2010 6 shall be entered on the prescription. Clause (ii) of Rule 65(3)(1) of third proviso of the same, however, envisages that it shall not be necessary to record the details as mentioned above in the said rule in the register or in the cash or credit memo particulars in respect of any drug other than specified in Schedule-C or Schedule-H if it is supplied in the original unopened container of the manufacturer. The effect of Rule 65 is that drugs which are mentioned in Schedule-H are to be entered and recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of the entry in the register is to be entered on the prescription. Besides, Rule 97 of the Rules relates to labeling of medicines. It is envisaged therein that the container of a medicine for internal use shall if it contains a substance specified in Schedule-H be labeled with the symbol Rx and conspicuously displaced on the left top corner of the label and be also labeled with the following words:- “Schedule H drug – Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only’;” Therefore, the petitioner appears to have violated the provisions of the Drugs and Cosmetics Act and the Rules framed there under for which he may be proceed against which, however, is the domain of the prosecution and is not to be gone into by this Court for the purpose of consideration for the grant of bail. The petitioner, therefore, has been in possession of drugs which are more than “small quantity” but less than “commercial quantity”. Besides, prima facie he has violated the provisions of the Drugs and Cosmetics Act and the Rules framed there under. The case against the petitioner as to for what offence is he to be charge-sheeted is to be Criminal Misc.No.M-9948 of 2010 7 considered and examined by the investigating/prosecuting agency. This Court is not to go into this aspect at this stage. It is not a case where the petitioner can be said to be in possession of commercial quantity of narcotic drugs or psychotropic substance. Besides, the petitioner has been in custody since 6.3.2010 and the case against him is to be established. Therefore, in the facts and circumstances, it would be just and expedient if the petitioner is granted the concession of bail. Accordingly, the criminal miscellaneous petition is allowed and the petitioner on his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Bathinda shall be admitted to bail.

28.05.2010 mamta-II/hsp (S.S.SARON) JUDGE