Crl. Misc. not M-14819 of 2012 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Misc. not M-14819 of 2013 (O&M) Date of decision :
09. 05.2013 Shashi Mahla ...Petitioner Versus State of Punjab ..Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. Himanshu Puri, Advocate, for the petitioner. **** Mehinder Singh Sullar, J.(Oral) As is evident from the record, that first petition for regular bail bearing CRM-M No.3498 of 2013, filed by the petitioner was dismissed (as withdrawn), vide order dated 01.02.2013, by this Court.
2. not the petitioner has directed the instant second petition for regular bail in a case registered against him, vide FIR No.96 dated 04.09.2012, on accusation of having committed an offence punishable under Section 22 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the NDPS Act'), by the police of Police Station Sadar Kapurthala, invoking the provisions of Section 439 Cr.P.C.
3. The prosecution claimed that on 04.09.2012, the petitioner- accused was apprehended and in the wake of search of his bag, 200 grams intoxicant/contraband powder (Alprazolam) was recovered from his (petitioner) possession, without any permit or license.
4. After completing all the statutory procedure, the police has taken into the possession the intoxicant powder, vide recovery memos. On Crl. Misc. not M-14819 of 2012 (O&M) -2- the basis of aforesaid recovery of commercial quantity of intoxicant powder, the present case was registered against the petitioner-accused, in the manner described here-in-above.
5. Having heard the learned counsel for the petitioner, having gone through the record, with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in this petition in this context.
6. Ex facie, the arguments of learned counsel that the petitioner has been falsely implicated by the police in this case and since the manufactured drugs (Alprazolam) was recovered from possession of the petitioner, so, no offence under NDPS Act is made out and he is entitled to regular bail, are neither tenable not the observation of Hon'ble Apex Court in case State of Uttaranchal Vs. Rajesh Kumar Gupta, 2006 (4) RCR (Criminal) 974, are at all applicable to the facts of the present case, wherein it was observed that the accused (therein) was an Ayurvedacharya. Advertisements were, allegedly, being issued by him in various newspapers claiming that medicines used by him were prepared from herbal plants collected from the bank of Ganges and by application thereof patients suffering from epilepsy can be cured. The State, however, on the allegation that in his medicine, he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, raided the premises of the accused and recovered 70 Kgs. pure phenobarbitone.
7. The High Court opined that ordinarily applications for bail are required to be considered having regard to Section 37 of the NDPS Act. It, however, noticed that as the recovered drugs not being listed in the 1st Crl. Misc. not M-14819 of 2012 (O&M) -3- Schedule appended to NDPS Act/Rules, therefore, the accused cannot be said to have been committed any offence punishable u/s 8 read with section 22 of the NDPS Act and was released on bail. In the wake of appeal filed by the State of Uttaranchal, the question raised before the Hon'ble Apex Court was as to whether the provisions of section 37 of the NDPS Act were attracted or not. On the peculiar facts & in the special circumstances of that case, it was ruled as under (para 35) :- “Respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses out morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly in view of the fact that he has been in custody for a period of more than two yeas now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India.”
8. Likewise, the orders in CRM-M No.4913 of 2013 titled Harjinder Singh @ Soni Vs. State of Punjab and in CRM-M No.34013 of 2011 titled Vijay Kumar @ Banti Vs. State of Punjab, passed by a Co- Ordinate Benches of this Court, would not advance the cause of the petitioner, in any manner, wherein it was observed that if the manufactured drugs did not fall in the schedule, so, the accused cannot be prosecuted under the NDPS Act.
9. There can hardly be any dispute with regard to the aforesaid observations but the same would not come to the rescue of the petitioner, in the instant controversy.
10. What cannot possibly be disputed here is that the indicated intoxicant powder (Alprazolam), recovered from the possession of the petitioner, is duly described and squarely fall, within the ambit of amended table/schedule, appended with the NDPS Act and the relevant rules framed Crl. Misc. not M-14819 of 2012 (O&M) -4- thereunder. Therefore, it cannot possibly be saith that no offence under Section of the indicated Act is made out against the petitioner, at this stage, as contrary urged on his behalf.
11. not only that, the questions as to whether exact quantity (total mass) of the contraband recovered from offender or percentage of Narcotic drugs/Psychotropic Substances contained in it is to be taken into consideration in relation to manufactured drugs and preparations and whether the possession of such manufactured intoxicant/contraband (Alprazolam), falls within the ambit of the schedule of NDPS or not are no more res integra and well settled.
12. An identical question came to be decided by this Court in case Parmanand vs. State of Haryana and others (P&B), 2013(1) RCR (Criminal) 375. Having interpreted the relevant provisions & rules of the NDPS Act, the Cosmetics & Drugs Act and the previous judgment of this Court in case Vinot Kumar Vs. State of Punjab, 2013(1) RCR (Criminal) 428, it was ruled that the total mass of the contraband seized shall be considered for the purpose of determining the commercial commodity and the possession of such manufactured Narcotic Drugs and Psychotropic Substances, contravene the provisions of, and is punishable under the NDPS Act, Rules and Order, 1993. Therefore, the indicated ratio of law is “mutatis mutandis”. is applicable to the facts of the present case and is complete answer to the problem in hand.
13. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner.
14. In the light of aforesaid reasons, thus seen from any angle and without commenting further anything on merits, lest it may prejudice the Crl. Misc. not M-14819 of 2012 (O&M) -5- case of either side during the course of the trial of the main case, as there is no merit, therefore, the instant petition for regular bail filed by the petitioner is hereby dismissed as such in the obtaining circumstances of the case.
15. Needless to mention that nothing observed, here-in-above, would reflect on the merits of the main case, in any manner during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition for regular bail. May 09, 2013 (Mehinder Singh Sullar) naresh.k Judge