Madhya Pradesh High Court: Rajeev Kumar Dubey, J., denied bail to the applicant who was arrested for the offence punishable under Sections 8, 21, 22 of the NDPS Act & Section 5/13 of M.P. Drug Control Act.

The prosecution had submitted that on the information of informant police stopped motor cycle which was being driven by applicant Rajkamal Namdev and co-accused Vikas Gupta was pillion rider and seized 30 bottles of Onerex Cough syrup (100 ml. each) containing codeine phosphate (Narcotic Substance) from their joint possession, which was illegally being carried by them on that bike.

Counsel for the applicant, Mr Vijay Chandra Rai submitted that the applicant has not committed any offence and had falsely been implicated in the offence.

Counsel for the respondent /State, Mr Sunil Gupta submitted that they were not having documents to keep the seized contents in their possession, so looking to the provisions of Section 37 of the NDPS Act, he should not be released on bail.

The Court relied on the Supreme Court judgment in Mohd. Sahabuddin v. State of Assam, (2012) 13 SCC 491. The Court further stated that the Supreme Court in State of Punjab v. Rakesh Kumar, (2019) 2 SCC 466 had relied on in an earlier judgment of Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 where it was held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances).

It was made clear that if anyone was found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.

Central government notification dated 18-11-2009 stated that the percentage of a narcotic drug and psychotropic substance shall be inseparable and the whole contraband seized has to be taken into consideration that whether the same falls within the small quantity or commercial quantity or an intermediate quantity which was upheld in Harjit Singh v. State of Punjab, (2011) 4 SCC 441.

The Court also relied on Heera Singh v. Union of India, 2020 SCC Online SC 382 where it was held 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.

The Court rejected the bail application stating that police seized 30 bottles (100 ml. each) of Onerex Cough syrup containing Codeine Phosphate (manufactured drugs) from the joint possession of applicant & Co-accused so provisions of Section 37 of the N.D.P.S. Act will come into force.[Rajkamal Namdev v. State of M.P., MCRC-25233 of 2021, decided on 02-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

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