Parmanand vs State Of Haryana & Ors.

on 2 November, 2012

Punjab-Haryana High Court Punjab-Haryana High Court Parmanand vs State Of Haryana & Ors. on 2 November, 2012 CRM No. M-33959 of 2012 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-33959 of 2012 (O&M) Date of Decision:-2.11.2012 Parmanand ...Petitioner Versus State of Haryana & Ors. ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.P.S.Hundal, Senior Advocate with Mr.Manu Loona, Advocate for the petitioner. Mehinder Singh Sullar, J. (Oral) Tersely, the facts & material, culminating in the commencement, relevant for disposal of instant petition for regular bail and emanating from the record, are that, on 11.7.2012, in the wake of secret information, complainant Mrs. Vijay Rani, Drug Control Officer (for brevity "the complainant") and M.K.Bhadu, SMO, formed a raiding party and conducted the search of the premises of Sharma Medical Agency, Dabwali and recovered 15000 Microlet tablets, 20000 Lomotil tablets, 480 bottles of Rexcof syrup, 400 Lupigesic injections, 550 Unizoncine injections, 900 Zocin injections, 1200 Spasmocip capsules, 1000 ZZZ tablets, 5000 tablets of Zepose 10 Mg, 3500 tablets of Zepose 5 Mg., 3150 tablets of Decalm 10 Mg., 700 tablets of Decalm 5 Mg., 3300 capsules of Spasmocip Plus, 32400 tablets of Rest 0.5, 6800 capsules of Parvon Spas, 1100 tablets of Anxipam, 390 capsules of Dexovon, 94000 tablets of Antipam 2 Mg., 6000 tablets of Spasmo Plus, CRM No. M-33959 of 2012 (O&M) 2 1000 Unizocine Injections (1 ml), 6912 capsules of Spasmo Proxyon, 720 capsules of Spasmo, 2700 capsules of Spasmo Cip Plus, 200 Unizocine injections, 100 capsules of Provon Fort, 96 Fortvin injections, 44000 Momolit tablets, 35400 Prozolam 0.5 Mg., 21780 Provon Spas capsules, 10000 Pheuolit tablets, 5600 Tranax, 8800 Alto 0.5 Mg. tablets, 7200 Spazpmoci Plus capsules, 2000 Parvodex capsules, 144000 Alto 0.5 Mg. tablets, 2160 Proxyvon capsules, 2304 Parvon capsules, 78000 Altipam 2 tablets, 25000 bottles of Corex syrup, 25000 Fhenoltil tablets, 90400 Alto 0.5 tablets, 5000 Luzapalm tablets, 2880 bottles of Rexcaf cough syrup (602 ml), 480 bottles of Rexcaf cough syrup (100 ml), 3840 bottles of Rexcaf cough syrup (100 ml), 330 bottles of Kilcaf (100 ml) and 5 bottles of Kilcaf (10 ml) from the possession of the petitioner without any valid permit or licence under the Narcotic Drugs & Psychotropic Substances Act, 1985 and rules framed thereunder (hereinafter to be referred as "the NDPS Act & relevant rules"). 2. Sequelly, the complainant claimed that she demanded, but the petitioner failed to submit the valid permit, licence under the NDPS Act, relevant stock register and sale record etc. in this respect. After completion of all
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Parmanand vs State Of Haryana & Ors. on 2 November, 2012

the statutory/codal formalities of taking samples etc., the samples & remaining drugs were sealed into separate parcels and taken into possession vide recovery memos in the presence of witnesses. 3. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that huge commercial quantity of pointed Narcotic Drugs & Psychotropic Substance was recovered from the possession of petitioner and his other co-accused CRM No. M-33959 of 2012 (O&M) 3 without any valid permit or licence and relevant record. It was claimed that the composition of salts contained in the Narcotic Drugs & Psychotropic Substances recovered from the accused, fall within the Table/Schedule appended to the NDPS Act and the relevant rules framed thereunder. In the background of these allegations and recovery of narcotic drugs, the present criminal case was registered against the petitioner & his other co-accused Ajay Kumar, by virtue of FIR No.288 dated 11.7.2012, on accusation of having committed the offences punishable under Sections 21 and 22 of the NDPS Act by the police of Police Station City Mandi Dabwali, District Sirsa. 4. Having exercised and remained unsuccessful of his right of bail before the Sessions Judge, now the petitioner-accused has directed the present petition for regular bail in the indicated criminal case, invoking the provisions of section 439 Cr.PC. 5. Having heard the learned counsel for the petitioner at quite some length, having gone through the relevant codal provisions & record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context. 6. Ex facie, the arguments of learned counsel that petitioner has been falsely implicated in this case, his firm was authorized to possess the recovered manufactured drugs and since the recovery of commercial quantity of drugs is not duly proved, so, he is entitled to concession of regular bail, are neither tenable nor the observations of Hon'ble Apex Court in case State of Uttaranchal v. Rajesh Kumar Gupta 2006(4) RCR (Criminal) 974 are at all applicable to the facts of the present case, CRM No. M-33959 of 2012 (O&M) 4 wherein, the accused 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 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 CRM No. M-33959 of 2012 (O&M) 5 136 of the Constitution of India." 8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, since the composition of salts contained in the Narcotic Drugs & Psychotropic Substances recovered from the accused fall within the ambit of Table/Schedule appended with the NDPS Act and the relevant rules framed thereunder, so, the same would not come to the rescue of petitioner in the instant controversy.
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Parmanand vs State Of Haryana & Ors. on 2 November, 2012

9. As is evident from the record that the indicated huge commercial quantity of Narcotic Drugs & Psychotropic Substances were recovered from the possession of the accused, without any valid permit or licence under the NDPS Act, in the manner depicted here-in-above. 10. At the very outset, possibly, no one can lose sight of the fact that the NDPS Act was legislated to amend the existing laws relating to Narcotic Drugs & Psychotropic Substances and to control the menace of drug abuse, which was adversely affecting the social fabric of the society, containing specific provisions and special procedure. In order to carry out the purpose, aim and object of the NDPS Act, the Central Government has framed the relevant rules & orders. It is now well-settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning. If such meaning is clear and unambiguous. The effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted CRM No. M-33959 of 2012 (O&M) 6 accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise. 11. Above being the position on record, now the short & significant question, though very important, that arises for determination in this petition, is as to whether any offence punishable under sections 8, 21 and 22 of the NDPS Act is made out against the accused or not? 12. Having regard to the lengthy contentions of learned counsel for petitioner, to me, the answer must obviously be in the affirmative in this relevant connection. 13. As is clear, Chapter III of the NDPS Act deals with prohibition, control and regulation of narcotic drugs & psychotropic substance. Section 8 (c) postulates that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made CRM No. M-33959 of 2012 (O&M) 7 thereunder and in a case where any such provision imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization. 14. Sequelly, Sections 9 & 9-A empower the Central Government and Section 10 empowers the State Governments to permit, control and regulate the Narcotic Drugs & Psychotropic Substances. Sections 21 & 22 posit that whoever in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports or uses any manufactured drug or any preparation containing any manufactured drugs or any psychotropic substances, shall be punished therein. 15. The word "manufacture" has been defined in clause (x) of Section 2, whereas according to clause (xi), the manufactured drugs mean, all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate and 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. Clause (xx) defines "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. According to clause (xxiii) "psychotropic substance" means any substance, natural or synthetic, or
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Parmanand vs State Of Haryana & Ors. on 2 November, 2012

any natural material or any salt or CRM No. M-33959 of 2012 (O&M) 8 preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. 16. Likewise, Rule 64 of the relevant rules escalates that no person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule 1. Rule 66 envisages that no person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules. However, there is an exemption of possession with regard to the research, institution or a hospital or dispensary mentioned therein. 17. Similarly, Order 3 of the NDPS (Regulation of Controlled Substances) Order, 1993 provides that every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintained daily accounts of his activities in Form 1 or Form 2, prescribed under the NDPS Act, which will be preserved for a period of two years from the date of last entry in the register and shall report to the Director General of Narcotics Control Bureau in this relevant connection. 18. A conjoint and meaningful reading of the indicated provisions would reveal that no person shall possess, sell, purchase, transport or warehouse, use, consume any narcotic drugs or psychotropic substance without any permit, licence or authorization by the competent authority under the NDPS Act, Rule 66 & Regulation u/s 10. Moreover, he has to comply with the terms and CRM No. M-33959 of 2012 (O&M) 9 conditions, as contemplated under Order 3 of the NDPS Order, 1993 as well. Meaning thereby, a person has to obtain a valid permit, licence and authorization under the NDPS Act & relevant rules to possess, sell, purchase or otherwise deal with the Narcotic Drugs and Psychotropic Substances and he has also to maintain the record accordingly, notwithstanding, he may be having any licence under the Drugs Control Act. 19. Therefore, if the crux of the pointed relevant legal provisions of the NDPS Act, as discussed here-in-above, is put together, then, to my mind, the conclusion is inescapable & irresistible that the possession, sale & purchase etc. of Narcotic Drugs and Psychotropic Substances falling within the domain of Table/Schedule appended thereto, in violation of the provisions of the NDPS Act, rules & order framed thereunder, is not only patently illegal, but is punishable as well under sections 8, 21 and 22 of NDPS Act, relevant rules & order. In this manner, the petitioner-accused cannot escape his penal liability in this relevant connection. At the same time, the mere fact that the firm of the petitioner-accused was having a licence under the Drugs & Cosmetics Act, would not automatically authorize him to possess such Narcotic Drugs & Psychotropic Substances, ipso-facto, is not a ground, much less cogent, to exonerate him from such violation and will not operate a bar to prosecute him in the instant case, as contemplated under Section 80 of the NDPS Act. In case, the contentions raised on behalf of petitioner-accused are accepted as such, then, to me, the very purpose, aims & objects of the NDPS Act, would pale into insignificance and thereby inculcate & perpetuate CRM No. M-33959 of 2012 (O&M) 10 injustice to the public at large. 20. Thus, taking into consideration the recovery of heavy commercial quantity of the Narcotic Drugs & Psychotropic Substances from the possession of the petitioner-accused, to my mind, prima facie, the case for the commission of indicated offence under the NDPS Act is made out against him. Therefore, the contrary arguments of learned counsel for petitioner-accused "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances. 21. There is another aspect of the matter, which can be viewed from entirely a different angle. From the lengthy contentions of learned counsel for petitioner, the following two questions arise for determination:(i) Whether exact quantity (total mass) of the contraband recovered from offender or percentage of Narcotic drugs/ Psychotropic Substances seized is to be taken into consideration in relation to manufactured drugs and preparations? If so its effect.
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Parmanand vs State Of Haryana & Ors. on 2 November, 2012

(ii)Whether Manufacturers, Chemists, Wholesale license holders under the Drugs and Cosmetics Act, 1940 possessing controlled substances and manufactured drugs/ prescription drugs are also required to comply with the statutory provisions of the NDPS Act, Rules and Order 1993 for their possession? If so its effect. 22. What cannot possibly be disputed here is that the identical questions came to be decided by a Coordinate Bench of this Court (Paramjeet Singh, J.) in main Crl.Misc. No.M-9327 of 2012 titled as "Vinod Kumar Vs. State of Punjab" along with 20 other connected cases, decided on 1.6.2012. After considering the relevant provisions, rules framed under the NDPS Act, the Drugs & Cosmetics Act, 1940 and various judgments, it was ruled as under:CRM No. M-33959 of 2012 (O&M) 11 Re: Question No.(i) i) As the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No.239 of the notification dated 19.10.2001 issued in S.O.No.1055(E) of the Central Government. It is absolutely necessary to conduct Pure Content Test to ascertain the exact quantity of the Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Pure Content Test, the whole contraband seized shall not be considered as such. However, in all the cases registered on or after 17.11.2009, there is no necessity to conduct pure content test to ascertain the exact quantity of Narcotic Drugs, Psychotropic Substances and Manufactured Drugs. The whole contraband seized shall be considered as such even if it comes within the definition of Entry No. 239. ii) In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No.239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need for Purity Test and in such cases, the entire quantity of Narcotic Drug/Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction and sentence will be imposed accordingly. 23. As regards the question No.2 is concerned, it was held that the manufacturers of manufactured drugs or prescription drugs, chemists, wholesale license holders under the Drugs and Cosmetics Act are required to comply with the provisions of NDPS Act, Rules and Order, 1993 for the possession of narcotic drugs, psychotropic and controlled substances. 24. Not only that, the same view was again reiterated by this Court in Crl.Misc.No.M-28114 of 2012 titled as "Jagtar Singh Vs. State of Punjab", decided on 12.9.2012. Therefore, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts CRM No. M-33959 of 2012 (O&M) 12 of the present case and is the complete answer to the problem in hand. 25. Faced with the grave situation, the next argument of learned counsel that the petitioner has been falsely implicated, is not only devoid of merit but misplaced as well. As discussed here-in-above, in the wake of secret information, the complainant and the SMO, formed a raiding party and recovered the Narcotic Drugs & Psychotropic Substances in commercial quantity from the possession of the petitioner and his co- accused. It is highly improbable to believe rather on the contrary, that no motive could possibly be attributed as to why the complainant (Drugs Control Officer) and the SMO, would falsely implicate the accused and plant such a huge quantity of the Narcotic Drugs & Psychotropic Substances on them. 26. As strange as it may appear, but strictly speaking, the tendency and frequency of selling the Narcotic Drugs & Psychotropic Substances by the accused persons, in order to earn easy money, has been tremendously increasing day by day, which is spoiling and adversely affecting the basic economic, social & moral fabric of our society in this part of the country, which needs to be curbed with heavy hands.

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Parmanand vs State Of Haryana & Ors. on 2 November, 2012

27. This is not the end of the matter. Moreover, it is not a matter of dispute that the petition for regular bail filed by Ajay Kumar, co- accused of petitioner, in which, similar arguments were raised by the same very counsel, was dismissed by this Court, by virtue of order dated 15.10.2012, rendered in CRM No.M-32610 of 2012 titled as "Ajay Kumar Vs. State of Haryana & others". So, the petitioner is also not entitled to the benefit of regular bail. CRM No. M-33959 of 2012 (O&M) 13 28. In the light of aforesaid reasons, thus seen from any angle and without commenting further anything on merits, lest it may prejudice the 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. 29. 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. 2.11.2012 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter? Yes/No

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