2021-TIOL-1377-HC-DEL-NDPS

Mohd Ahsan Vs Customs

NDPS - Petitioner seeks grant of regular bail in Complaint Case registered at Police Station Customs (IGI Airport, Delhi) under Section 21(c) and 23 (c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 - 55 bottles each of Phensedyl were recovered from two packets - Samples which were drawn were sent to the laboratory and vide report dated 01.10.2019 all the samples were opined positive for Codeine Phosphate - Investigation reveals that each bottle is weighing 100 grams and each of the bottle had Codeine concentration of 0.17% which translates to about 18.7 grams of concentrated codeine in total 110 bottles - Petitioner filed an application for bail before the Special Judge (NDPS) and it was contended that each bottle contained only 0.17% of Codeine concentration and cannot be called as commercial quantity - Special Judge vide order dated 15.03.2021 held that the petitioner was having 11,000 ml of cough syrup and, therefore, held that it was a commercial quantity and since the petitioner has committed an offence involving commercial quantity, the bail application was rejected - The petitioner has, therefore, filed the instant bail application.

Held:

+ Short question which arises is as to whether the rigour of Section 37 of the NDPS Act which regulates the grant of bail for offence involving commercial quantity of drugs is attracted or not. [para 9]

+ As per entry 28 of the list to the notification dated 19th October 2001, as amended on 18.11.2009, small quantity of Codeine is defined as 10 grams, and a commercial quantity of Codeine is 1000 grams. The question for consideration is whether for the purposes of the NDPS Act, 1985 a commercial quantity of Codeine has been recovered from the petitioner. [para 10]

+ Supreme Court in the case of E.Michael Raj v. Intelligence Officer, Narcotic Bureau = 2008-TIOL-44-SC-NDPS held that only the portion of illicit substance, in the entire mixture for deciding whether the recovery is of commercial quantity of the narcotic drug or psychotropic substance, would be considered. The weight of the neutral substance, in any mixture containing a narcotic substance would be ignored was to be excluded. [para 11]

+ After the judgment of the Supreme Court in E. Michael Raj (supra) Note 4 was inserted in the S.O. 1055 (E) dated 19th October, 2001 and prima facie this note seems to suggest that the weight of the neutral material must also be taken into account while determining whether a person is in possession of a commercial quantity of a narcotic substance. [para 11, 12]

+ The three Judge Bench of the Supreme Court in Hira Singh v. Union of India = 2020-TIOL-84-SC-NDPS-LB has observed that the decision of Supreme Court in the case of E. Micheal Raj (supra) is not a good law; that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances 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 Narcotic Drugs or Psychotropic Substances. [para 13]

+ In the facts of Iqbal Singh ( APPLN.645/2020 decided on 31.07.2020 ), the petitioner therein was found with 55 bottles of Codeine based cough syrup, which must be equal to roughly 5.5 kg in weight. The amount of pure Codeine present in those bottles was a little less than 10 grams, which is below the upper limit for small quantity. This Court held that the petitioner therein therefore only had a small quantity of Codeine. The decision of the Supreme Court in Hira Singh (supra) was cited and considered by this Court in Iqbal Singh (supra) and was distinguished. This Court held that in the context of Codeine used in cough syrup i.e. formulations which have a miniscule percentage/quantity of an offending substance cannot be treated at par with other illicit substances like heroin. [para 14]

+ Codeine is a Schedule H-1 Drug, under the Drugs and Cosmetics Act, 1940, and is not to be sold without a valid prescription. Any Codeine based cough syrup ideally should not be available without a prescription. The reality however is different. This Court can take judicial notice of the fact that any person desirous of obtaining a Codeine based cough syrup can do so without much difficulty. [para 17]

+ If the argument of the prosecution based on Hira Singh (supra) is accepted, any person who purchases or obtains a bottle of cough syrup without a valid prescription from a doctor would be in possession of an intermediate quantity of Codeine as he would be in possession of 100 grams of a manufactured drug and would face punishment under Section 21(b) of the NDPS Act. A dealer of ganja caught with a quantity less than 20 kilograms, would face the same punishment as a person possessing a single bottle of Codeine based cough syrup. [para 18]

+ A person who is in habit of dealing in ganja and is caught with slightly less than 1 kg of ganja (which obviously cannot be for self-use) will face significantly lesser punishment. [para 19]

+ Even if the person is using a codeine cough syrup for illicit reasons, of obtaining a 'high', possessing a single bottle of codeine cough syrup will ensure that such user is treated on par with a person who possesses even 19 kilograms of ganja. Hypothetically, a family where there are a number of people having chronic cough problem procures 10 bottles of cough syrup before embarking on a trip to ensure adequate supply of the cough syrup, would be deemed to be in possession of a commercial quantity of Codeine, and would face a minimum of 10 years imprisonment. This obviously was not and could not be the intention of the legislature or the true meaning of the judgment of the Supreme Court in Hira Singh's case. [para 20]

+ Para 8.4 and para 10(II) of the judgment of the Supreme Court in Hira Singh v. Union of India = 2020-TIOL-84-SC-NDPS-LB does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of narcotic drugs or psychotropic substance out of a neutral substance. The judgment of Iqbal Singh (supra) is, therefore, contrary to a plain reading of the judgment of the Supreme Court. Since cases of this nature are common there is a strong possibility that different Single Judge Benches of this Court may take different opinions while deciding as to whether the rigour of Section 37 would be attracted or not in such cases. It would, therefore, be in the interest of justice that an authoritative and final pronouncement is made by a larger Bench of this Court.

+ Following questions are required to be considered by a larger Bench viz. Whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between; Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?; Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available? [para 22]

+ Since the question is referred to a larger Bench, Court is inclined to grant the petitioner interim bail for 90 days on the petitioner furnishing a personal bond in the sum of Rs.35,000/- with surety in the like amount to the satisfaction of the Trial Court subject to conditions. [para 23]

- Matter referred to Larger Bench: DELHI HIGH COURT