High Court allowed bail to an accused facing NDPS and Drugs and Cosmetics charges for possession of cough syrup containing codeine. Court held prior IPC convictions are not bar and distinguished quantity from commercial limits.
Released on bail Rs.50,000 bond with sureties and conditions to appear twice monthly and not tamper with evidence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 445 OF 2022
Perveen Firoz Shaikh .. . Applicant
V/s.
The State of Maharashtra ... Respondent
Mr. Silvin Y. Kale, Advocate for the applicant.
Smt. Pallavi Dabholkar, APP for State-respondent.
CORAM : SANDEEP K. SHINDE J.
DATE : WEDNESDAY, 4TH MAY, 2022.
P.C. :
rejected on 18 th February, 2022.
2. Heard learned Counsel for the parties.
No.59 of 2019 registered with Bhiwandi City Police Station for
the offences punishable under Sections 328, 273, 276, 411,
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379 read with Section 34 of the Indian Penal Code, 1860 (‘ IPC’
for short) along with Sections 18 (c), 27(B)(2), 27(D) of the Drugs and Cosmetics Act, 1940 along with Sections 8 and 22 of the Narcotics and Psychotropic Substances Act, 1985 ( ‘NDPS’
Act for short) and under Section 77 of the Child Labour Act, 2005.
1] 120 bottles each containing 100 ml rexus active cough syrup worth around 14,400/-;
2] 30 stripes of alko-laplrazolam tablets worth Rs.810/- ;
On being asked about any documentation/licence for the possession of the said medicine in a huge quantity, the applicant could not produce any valid documents to that effect.
4 . Chemical analysis of the contents of the cough syrup
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disclosed that it contained Codeine Phosphate I.P. 10 MG and Chlorpheniramine Maleate IP 4 MG in each 5 ML contents of cough syrup. Thus, in each bottle of cough syrup of 100 ML, 200 MG Codeine was found and detected.
5 . The learned counsel for the applicant submitted that the small quantity in relation to Codeine (Non-proprietary name) is 10 gms and commercial quantity is 1 kg and, therefore, the total quantity of Codeine in all 190 bottles was less than the commercial quantity prescribed under the NDPS Act. It is further submitted that the medicine Rexus active cough syrup is a Scheduled Drug and in view of the Notifcation dated 14 th November, 1985 issued by the Central Government under the NDPS Act, it was declared that certain preparations are exempted from the purview of ‘Manufactured Drugs’ provided, the preparation contained in the narcotic drug was limited to the extent permitted under the notifcation. It is further submitted in respect of Codeine, Entry No.35 of the said notifcation reads as under:
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“Methyl morphine (commonly known as ‘Codeine’) 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 percent in undivided preparations and which have been established in therapeutic practice.”
Therefore, it is his submission that since the said cough syrup preparation containing Codeine falls below the prescribed quantity under the said Notifcation referred to above, it shall, therefore, fall under Schedule ‘H’ of the Drugs & Cosmetics Rules and shall only be governed by the said Rules. Additionally, it is submitted that since the applicant could not produce a valid licence and/or purchase bills for the drugs recovered from the applicant on the date of recovery, she could be prosecuted only under the applicable provisions of Drugs and Cosmetics Act, 1940 and Rule, 1945. In short, it is submitted that the recovery of Rexus Active Cough Syrup bottles, even though it contained Codeine Phosphate and Chlorpheniramine Maleate being covered at Sr.No.35 of
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Notifcation S.O. 826(E) under the NDPS Act, dated 14 th
November, 1985, would not attract punitive provisions of the NDPS Act, 1985.
submitted that, out of fve, four co-accused have been released on bail. The trial is not likely to commence in the near future. The applicant is woman. She is in custody since more than three years. She has permanent residence at Bhiwandi and by imposing suitable conditions, her presence for the trial can be secured. Mr. Kale, submitted that, co-accused-Ruksana Shaikh from whose possession 70 bottles of 100 ml of Rexus Active Cough Syrup were recovered, has been released on bail by this Court in Bail Application No. 3477/2019. Mr. Kale, therefore besides other grounds, seeks enlargement of the applicant on bail on the principles of parity.
ground that, the applicant has criminal antecedents, inas
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much as, three crimes were registered against her, namely; Crime No.314/2007 under Sections 452, 427, 323 read with Section 34 of the Indian Penal Code, Crime No.39/2014 for the offences punishable under Sections 307, 114 read with Section 34 of the Indian Penal Code and Crime No. 14/2018 read with Sections 324, 323, 504 read with Section 34 of the Indian Penal Code. Learned Prosecutor, therefore submitted, possibility of applicant indulging into repeat crimes of similar nature cannot be ruled out and therefore she may not be released on bail.
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within the permissible limit stipulated under the Notifcation dated 14 th November, 1985, however, there was no evidence to prima-facie establish that, cough syrup stored was exclusively meant for its usage for curing a disease.
10. Ruksana Shaikh-co-accused from whom 70 bottles of Rexus Active Cough Syrup were recovered, has been released on bail. The only distinguishing factor insofar as the applicant is concerned, is she has criminal antecedents. However, the crimes registered against her, were not the offences punishable under the NDPS Act. Therefore, merely because, she had criminal antecedents relating to the offences under the Indian Penal Code, that would not be a good ground to deny bail. Even otherwise, she is in custody for more than three years and by imposing conditions, her presence for the trial can be secured. For all these reasons, the applicant is directed to be released on bail. Thus, the following order :
ORDER
(i)The applicant arrested in C.R.No.I-59/2019 registered with
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Bhivandi City Police Station, shall be released on bail on executing P.R. Bond in the sum of Rs.50,000/- (Rs. Fifty Thousand only), with one or more sureties in the like sum.
(ii)The applicant shall report to the Investigating Offcer, twice a month, i.e. frst and fourth Monday of each month between 11:00 to 1:00 p.m. till the charge is framed.
(iii)The applicant shall furnish her permanent residential address and contact number to the Investigating Offcer within a week from her release from the jail.
(iv)The applicant shall not tamper with the evidence or attempt to infuence or contact the complainant, witnesses or any person concerned with the case.
7. The application is accordingly allowed and disposed of.
8. It is made clear that, observations made hereinabove, shall be construed as expression of opinion, for the purpose of granting bail only and the same shall not, in any way, infuence the trial in other proceedings.
Digitally signed by NEETA NEETA SHAILESH SHAILESH SAWANT SAWANT Date: 2022.05.06 14:21:23 +0530
(SANDEEP K. SHINDE, J.)
Rane
3 issues framed by the court
Whether criminal antecedents for IPC offences are a valid ground to deny bail in an NDPS charge case.
Whether the quantity of recovered contraband attracts the NDPS Act or the Drugs and Cosmetics Act.
Whether parity principles justify granting bail when accused has prior criminal record but other co-accused are released.
4 provisions across 4 enactments
Perveen Firoz Shaikh
The State of Maharashtra
SANDEEP K. SHINDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court