K.A. Abdul Gafoor, J.
1. In all these cases, the applicants the accused in Crime Nos. 164, 182 and 214 of 2003 of Mattanchery Police Station or Thoppumpady Police Station, as the case may be, registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as 'the Act') had been found possessing 'Tidigesic', a preparation of Buprenorphine, in excess of the commercial quantity made mention of against item No. 169 in S.O.1055 (E) dated 19th October 2001 issued by the Union of India, as empowered under Section 2 (vii a) and (xxiii a). One among the applicants was found to be in possession of 64 ampules of the said substance; another one possessing 120 ampules and the remaining one possessing 15 ampules. The learned Sessions Judge, Ernakulam, as no Special Court is constituted under the Act for the said area, considered their applications and declined to grant bail. Thereupon, bail applications have been filed before this Court. When the applications came up for consideration before a learned Single Judge, the matter has been referred for consideration of the following points by a Bench:--
(1) Whether the offences which are punishable with imprisonment for a term of not more than three years are bailable or non-bailable?
(2) Is the Magistrate competent to extent the remand beyond fifteen days? Is he competent to order release of a person accused of any offence under N.D.P.S. Act?
(3) If the Magistrate is not competent to extend the remand beyond fifteen days what is the procedure to be followed by the Magistrate? Should he forward the accused to the Special Court?
(4) What is the procedure to be followed by the Special Court in such cases?
2. Before answering these questions, we have to find out first whether the substance involved in each of these cases conies within the small quantity made mention of in the said notification. If it does come within the small quantity, necessarily, the maximum punishment that can be awarded will be imprisonment for six months, or with fine, which may .extend to ten thousand rupees, or with both, under Section 22(a), in which case, it will be a bailable offence, and, consequently, they will be entitled to bail as of right. On the other hand, if it comes beyond the small quantity, necessarily, bail can be granted only after consideration of the aspects in terms of Section 37(1)(b) of the Act. Therefore, we will, first of all, consider whether the substance found in the possession of each of the applicants comes within the small quantity prescribed or not.
3. The contention of Counsel for the applicants is that admittedly by the prosecution, the substance involved is 'Tldigesic', a solution of Buprenorphine. Each ampule of 'Tidigesic' contains only 0.3 mg. of Buprenorphine. There is no dispute about this quantitative analysis. Even if the highest of the lot, viz., 120 ampules, involved in Bail Application No. 1660 of 2003 is concerned, the actual quantity of 'Buprenorphine' involved will be less than one gram, which is specified as small quantity in the notification mentioned above. Therefore, the contention is that there arises no question of any of the applicants being punished with imprisonment for more than six months, even if the prosecution establishes their case, because, as per the said notification, a person possessing one gram of 'Buprenorphine' will be termed as possessing only small quantity.
4. Though, in terms of Section 37(1)(a) of the Act, every offence punishable under the Act shall be cognizable, only those offences punishable under Sections 19, 24 and 27A and those involving commercial quantity are made non-bailable under Clause (b) thereof. In other words, offences involving small quantity is bailable. So, they are entitled to be enlarged on bail, they submit.
5. Counsel for the applicants further contended that merely because the solution altogether weighed more than one gram, as the psychotropic substance contained in the solution weighed only below one gram, it cannot be taken that they were in possession of more than the small quantity specified in the notification. In support of this, the applicants have relied on the decision of the Supreme Court in Hussain v. State of Kerala, 2000 (3) KLT 805 (SC), wherein six ampules of Tidigesic' was not found to be more than small quantity. The same ratio has to be applied to these cases as well, it is contended. They also attempted to persuade us to hold that the respective quantity involved in these cases come within small quantity, relying on a decision of this Court reported in Pious v. State of Kerala, 2002 (3) KLT 101, which is doubted by the learned Single Judge, who referred the matter for our consideration. It is contended that, going by the weight of the ingredient, which is termed as the psychotropic substance, the said decision does not require reconsideration, but it is to be followed. Therefore the applicants are entitled to be enlarged on bail.
6. Mr. P.N. Prakash, appearing for the Narcotic Control Bureau, Southern Zone, stationed at Chennai, submitted that what is a psychotropic substance is to be considered not with reference to each of the items mentioned either in the Schedule to the Act, or in the notification mentioned above, but with reference to the definition of the term contained in Section 2(xxiii) and that by reason of the said definition, not only the substance made mentioned of in the Schedule to the Act, but the entire solution or preparation, as the case may be, also shall come within the definition of psychotropic substance. Viewed in that angle, the quantity made mention of in the above said notification, specifying small quantity or commercial quantity, shall be the quantity of the preparation of a substance and not the quantity of the specific ingredient in the preparation concerned. Hence, Counsel submitted that the total weight of the substance involved in each of these cases weighed more than one gram. The least of the quantities in these three cases is 15 ampules. The total weight is more than one gram. The applicants were thus in possession of more quantity than the small quantity specified in the notification. In such case, the offence will be one punishable with imprisonment, which may extend to ten years, under Clause (b) or to twenty years under Clause (c) of Section 22 of the Act, depending on the quantity involved, and are, therefore, triable by the Special Court and not by a Magistrate. Trial by Magistrate will arise only for offences punishable with imprisonment for a term of less than three years, going by Section 36A(1) of the Act.
7. It is further contended that the purpose of the Act itself is to avert possession of such psychotropic substances, which are harmful to the society and hence, the Act has to be interpreted only in such a manner to avert the menace occasioned out of these substances to the possible maximum event. In this regard, the decision of the Supreme Court reported in Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 881, and in Balram Kumawat v. Union of India, 2003 (6) Supreme 284, are relied on.
8. The learned Public Prosecutor appearing for the State has also submitted that the issue has to be viewed in a social perspective. He relied on the decision reported in Babua Alias Tazmul Hossain v. State of Orissa, (2001) SCC (Crl.) 351.
9. Now, we will examine these contentions and find out whether the substance involved in each of these cases comes within small quantity or not.
10. The definition of psychotropic substance contained in Section 2(xxiii) reads as follows:
''psychotropic substance' means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the schedule;'
Going by this definition, apart from natural substance as mentioned in the Schedule to the Act, 'preparation of such substance' is also a psychotropic substance. Therefore, the weight shall be with reference to the substance, as defined, whether it be natural substance or a preparation thereof. Section 2(xx) of the Act defines the term 'preparation' as follows:
''preparation', in relation to a narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances;'
11. The Schedule to the Act contains a list of psychotropic substances. Item No. 92 thereof is 'Buprenorphine'. Admittedly by the petitioners, each of the ampules contained in 0.3 mg. of 'Buprenorphine' dissolved in water. So, it is a solution of 'Buprenorphine'. When it is a solution, going by the definition, the entire solution, being a 'preparation of psychotropic substance', is by itself a psychotropic substance as defined in Section 2(xxiii) of the Act.
12. The notification S.O.1055(E), dated 19th October, 2001, issued in terms of Clauses (vii a) and (xxiii a) of Section 2 of the Act, stipulates what is small quantity or commercial quantity of each of such substance. The said notification does not introduce a new psychotropic substance other than those mentioned in the Schedule to the Act. The intention of the notification is only to prescribe small quantity and commercial quantity of psychotropic substances, the statutory definition of which remains as such. Item No. 169 in the notification is 'Buprenorphine'. The small quantity is one gram and commercial quantity is twenty grams.
13. Whether the stipulation of these quantities is with reference to the natural or pure ingredient of 'Buprenorphine' or the entire content of the preparation of 'Buprenorphine', is the issue involved. Going by the definition of 'psychotropic substance', independent of the pure or natural ingredient, the preparation of the substance is also a 'psychotropic substance' as found above. Necessarily, therefore, the substance involved in each of these cases, viz. a solution of Buprenorphine will come to more than the small quantity of such psychotropic substance, which includes a solution, being a preparation thereof. Even the least of the quantities involved in these three cases will thus come beyond one gram. So, the appellants were having in their possession, as per the case of the prosecution, such substance in excess of the small quantity, in which case, the punishment, if the allegations are proved, shall be imprisonment for a term which may extent to ten years under Clause (b) or even to twenty years under Clause (c) of Section 22 of the Act, depending upon the quantity involved.
14. The decision reported in Hussain's case (supra) has no application to the facts of this case. It was a case relating to an appeal against conviction for the offence under Section 21 of the Act, whereas the case on hand is under Section 22(c) of the Act. At the first instance, in Hussain's case, the attempt was to charge under Section 20 of the Act which deals with offences relating to cannabis plant and cannabis. Admittedly by the prosecution, the substance involved in that case was not cannabis, but was only 'Buprenorphine'. Therefore, the Trial Court, if the words of the Supreme Court, 'slipped down into Section 21, which relates to contravention of the law in respect of 'manufactured drugs and preparation''. As the substance involved in that case was 'Buprenorphine', necessarily, it was not a manufactured drug or preparation thereof, because as per the Schedule to the Act, 'Buprenorphine' is only a psychotropic substance, to which Section 21 is not attracted. Therefore, the charge was not proved in that case. Moreover, there was evidence adduced through a medical practitioner, D.W.1, to the effect that 'Buprenorphine' was prescribed for the accused in that case for use as a medical formulation. It was in such circumstances that the conviction was set aside in that case. Hence; that decision cannot be applied to the fact-frame of these cases, so far disclosed.
15. The definition of psychotropic substance, as extracted above, takes in not only the substance in its pure and natural form, but the entire preparation or solution containing the psychotropic substance as well. Thus, when the offence involved possession of more than one gram of 'Tidigesic', a preparation of 'Buprenorphine', prima facie it is revealed that it is a case of possession of more than the small quantity. If it is a case of possession of a psychotropic substance more than the small quantity, necessarily, it will not be a bailable offence going by the provisions of Section 4(2) Cr.P.C., as, to the extent of bailability, the provisions of Section 37 of the Act will prevail over the provisions contained in the Code of Criminal Procedure, 1973.
16. When it is a non-bailable offence, the aspects as contained in Section 37(1)(b) of the Act has to be considered. Bail can be granted only if the Public Prosecutor does not oppose or if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Nothing has been brought to our notice that such a contention has been urged before the Special Court. The mere assertion that the alleged psychotropic substance was not recovered from the possession of the applicants is not a guarantee that there is no likelihood of recurrence of commission of offence by the applicants. If there are more materials available with them, to substantiate their contentions based on Section 37(1)(b) of the Act, they are free to move the Sessions Court again, for grant of bail, afresh.
17. The further contention of the applicants is with reference to Section 167 Cr.P.C. It is contended by them that all of them have already undergone judicial custody for more than 90 days and hence, they are entitled to be enlarged on bail as of right. Counsel for the applicants relied on the decision reported in Berlin Joseph v. State, 1992 (1) KLT 514, in this regard. But, we notice, as pointed out by the Public Prosecutor appearing for the State, a recent amendment to Section 36A of the Act by Act 9 of 2001. Sub-section (4) thereof makes it clear that 'ninety days' appearing in Section 167(2) Cr.P.C. shall be read as 'one hundred and eighty days' for the purpose of cases arising under the Act. The decision relied on by Counsel for the applicants was rendered by this Court in a situation arising before the said amendment. Therefore, we have to read Section 167(2) Cr.P.C. in conjunction with Section 36A of the Act as it stands now. Having read the provisions of law so, the accused persons are entitled to get bail, as of right, only when a period of 180 days is over the subject to the proviso to Sub-section 4 of Section 36A of the Act.
18. We are not closing our eyes to the objects and reasons of the said amendment to the Act. Of course, prior to the 2001 amendment, punishments for offences under the Act was uniform in nature, irrespective of the trivialness of the quantity involved. It is finding the arbitrariness involved in the penal clause that the Legislature has brought in amendment to award lesser punishment for offences involving trivial quantities. That does not mean that the very purpose of the enactment and its international importance shall be ignored. That is what the Supreme Court has cautioned in the decision in Babua Alias Tazmul Hossain v. State of Orissa, (2001) SCC (Crl.) 351. Paragraph 3 thereof reads as follows:
'3. In view of Section 37(1) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegation made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence, the other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Sections 27(1)(b) having been upheld, we cannot take any other view'.
19. Therefore the contention centred around objects and reasons of a statute also does not merit consideration. Moreover it need be looked into only when there is doubt with regard to the statutory provisions.
20. Whether a person is entitled to the immunity provided in Section 64A of the Act, being a person undergoing treatment for de-addiction, is a matter to be specifically urged and proved by production of sufficient evidence by the person concerned. In this case, no such pleading or evidence is brought to our notice. Moreover, such immunity applies in cases involving possession of small quantity. In this case, we have already found that the quantity involved is larger than small quantity. Hence, Section 64A does not have any application in this case.
21. Whether the applicants are entitled for conditional bail on the ground that the investigation is over is a mater to be considered by the Sessions Court, as and when moved, taking into account the law on the point, the circumstances of the case and the issue involved.
22. Based on our finding that the quantity involved in these cases is larger than small quantity, we will now answer the reference and we do so as follows:
(1) Going by Section 36A of the Act, all offences under the Act, punishable with imprisonment for a period of more than three years shall be triable only by the Special Court. An offence under the Act, involving small quantity, is punishable as per Section 20(c) with rigorous imprisonment for a term which may extent upto six months only. The last entry in Part II of the First Schedule to the Code of Criminal Procedure, 1973, provides that offences under laws other than Indian Penal Code, punishable with imprisonment for less than three years or with fine shall be 'Non-cognizable' and 'Bailable' to be tried by 'Any Magistrate'. The offence under the Act is made triable by a Special Court, in terms of Section 36A(1)(a) of the Act, if it is 'punishable with imprisonment for a term of more than three years'. Of course, all offence under the Act are cognizable going by Section 37(1)(a) of the Act. Except to that extent, for trial of the offences, the provisions in the Code of Criminal Procedure, 1973, shall be applied going by Section 4(2) of that Code. So, the offences under the Act, which are punishable with imprisonment for a term not exceeding three years, are bailable offences.
(2) When an offence is one to be tried by a Special Court, being one which may attract imprisonment for more than three years, the Magistrate cannot have any jurisdiction to touch it other than on the first occasion, to remand the accused forwarded to him for a period not exceeding fifteen days in the case of Judicial Magistrate or seven days in the case of Executive Magistrate. It need not be at one stretch; but 'in the whole'. He cannot remand a person for more than the aforesaid period. During the 'period of detention authorised' by him or on its expiry, he has to make over the case to the Special Court having jurisdiction to try the case. Therefore, there arises no question of extension of the remand period beyond fifteen days or seven days, as the case may be, by a Magistrate in a case charged under the Act triable by the Special Court. But, in a case involving an offence charged under the Act, punishable with imprisonment for a period of less than three years, necessarily, going by Section 4(2) Cr.P.C. and the Schedule to the Code of Criminal Procedure, 1973, the Magistrate can deal with it as if it is a case relating to a bailable offence. In such cases also, there arises no question of extension of remand period as posed in question No. 2.
Going by the proviso to Section 36A(1)(b) of the Act, even if the Magistrate considers that detention of the accused person is unnecessary either when he is forwarded to him or upon or at any time before the expiry of the period of detention authorised by him, he shall order such person to be forwarded to the Special Court having jurisdiction. Therefore, in cases involving offences punishable with imprisonment for a term exceeding three years, triable by a Special Court, the Magistrate is not competent to release such accused.
(3) In view of the answer to question No. 2, regarding competency of the Magistrate to extend the period of remand, there arise no question of any other procedure to be followed by a Magistrate than as contemplated in the proviso to Section 36A(1)(b) to forward the accused person to the Special Court.
(4) The procedure to be followed by Special Court shall be as contained in Classes (c) and (d) of Section 36A(1) and Sub-section (4) thereof.
These bail applications are accordingly closed.