TaxTMI 
TaxTMI 
2021 (5) TMI 698
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd upon reaching there, he waited for the applicant. After a while, co-accused Sanju @ Sandeep Tiwari was seen coming on a red colour motorcycle bearing registration no. MH04 M6610 hanging a bag on the back. He apprehended him with the help of other members of the police force. While searching his bag, he found 65 bottles of Welcyrex cough syrup of 100 ml each manufactured by Plenteous company containing 10 mg. (Codeine Phosphate) in each 5 ml dose that were being transported illegally by him. On interrogation he informed the police that he had purchased that cough-syrup from the applicant so police also arrested the applicant Pappu Gupta. 3. Learned counsel for the applicant submitted that 65 bottles of Welcyrex Cough Syrup containing Narcotic Drug (Codeine Phosphate) allegedly been seized from the possession of the co-accused Sanju @ Sandeep Tiwari falls within the category of "Essential Narcotic Drugs" as defined under Section 2 (viiia) of the NDPS Act not under the "manufactured drug" or psychotropic substance. He further submitted that Section 2 (viiia) of the NDPS Act has been inserted by the Amendment Act no.16 of 2014 which has created a new category of narcotic drug i.e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ail. 8. Learned counsel for the State opposed the prayer and submitted that syrup containing narcotic drug was within the permissible limit even then Section 8 of the Act of 1985 provides that no person can possess narcotic drug or psychotropic substance except for medical or scientific purpose or in the manner and to the extent provided by the provisions of the Act or Rules or order made thereunder. Nothing is shown before this Court to prove the fact that the seized contraband was possessed or transported for any therapeutic purposes. No documents whatsoever are produced by the applicant and co-accused Sanju @ Sandeep Tiwari. So, it is apparent that the co-accused Sanju @ Sandeep Tiwari took 65 bottles of cough syrup 100 ml each, total 6500 ml cough syrup containing Codeine (a narcotic drug) for illegal sale and the applicant was also involved in the crime. So looking to the provisions of Section 37 of the Act, he should not be released on bail. In this regard, learned counsel placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Mohd. Sahabuddin & Anr. Vs. State of Assam reported in (2012) 13 SCC 491. 9. This Court has gone through the record and ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....chotropic Substance". 13. "Manufactured Drug" is defined under Section 2(xi) and reads as under : "(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 a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;" 14. "Narcotic Drug" is defined under Section 2(xiv) of the Act, which reads as under : "Narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs" 15. "Psychotropic Substance" is defined under Section 2(xxiii) and reads as under : "Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such su....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... If it is kept for therapeutic practice. 20. Further, Section 8 of the NDPS Act, articulates that no person shall produce, possess, sell, purchase, transport and consume any narcotic drug or psychotropic substance, except for medical or scientific purposes. For the purpose of the medical and scientific use the Act/rules, imposes requirements, standards, terms and conditions by way of license, permit, or authorization. 21. Sections 17, 18, 21 and 22 of the NDPS Act prescribed the punishment for the violation of provisions of Section 8 of the Act. Section 17 prescribes the punishment inter alia for possession of "prepared opium"; Section 18 prescribes the punishment inter alia for possession of "opium", Section 21 deals with the punishment inter alia for possession of "manufactured drugs" and Section 22 prescribes the punishment inter alia for possession of Psychotropic substance. So if the drug 'Welcyrex Cough Syrup containing Manufactured Drugs (Codeine Phosphate) is kept or transported other than medical or scientific purpose, in violation of the provisions of any rule, the provisions of section 8 of the Act of 1885 would be attracted. 22. However by way of amendment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in therapeutic practice 2000 Milligrammes 3. Dihydroxy Codeinone (commonly known as Oxy-codone and Dihydroxycodeinone), its salts (such as Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs 250 Milligrammes 4. Dihydrocodeinone (commonly known as Hydrocodone), its salts (such as Dicodide, Codinovo, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester, and preparation, admixture, extracts or other substances containing any of these drugs 320 Milligrammes 5. 1-phenethyl-4-N-propionylanilino-piperidine (the international-non-proprietary name of which is Fentanyl) and its salts and preparations, admixture, extracts or oth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....10 of the Act: Provided that there shall be no limit to the possession of essential narcotic drug by the Government Opium Factories.] (9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules. 25. From the bare perusal of above mentioned provisions of the NDPS Act, Notifications Dated 14.11.1985 and 5th May 2015 and the provisions of rule 53A, it is clear that a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would neither be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S.Act nor Essential Narcotic Drugs under clause (viiia) of Section 2 of the N.D.P.S.Act. Subject to If it is kept for therapeutic practice. 26. However, the Government of India has issued a notification No. S.O.2941(E) dated 18/11/2009 in this regard. As per note 4 appended at the end of this notification, it is made clear that for the purpose of determining the quantity, the gross weight of the drug recovered and not the pure content of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rved :- "10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants. 11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less than 10 mg of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14-11-1985 and 29-1-1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under Section 8(c), of dealing in narcotic drugs and psychotropic substances). 31. The Act does not contemplate framing of rules for prohibiting the various activities of dealing in narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates the framing of Rules for permitting and regulating any activity of dealing in narcotic drugs or psychotropic substances." Hon'ble Apex Court in the case of State of Punjab Vs Rakesh Kumar (2019) SCC 466 also reiterates the same view. 32. The facts of the case Binod Kumar @ Binod Kumar Bhagat Vs. State of Bihar, (2018) 14 SCC 199 (supra) Corex cough syrup was seized by the police from the godown of Azad Transport Company Pvt. Ltd and the appellant was the employee (Manager) of Azad Transport Company Pvt. Ltd. The said company was engaged in the business of transportation of goods. The consignee was of Alsafa Surgical, Araria. The appellant was assigned with the duty of godown management. and the prosecution alleges that it was recovered from the appellant. So the apex court granted bail to the appellant. While in the instant case Police seized 66 bottles (100 ml. each) of Welcyrex....