The Madras High Court granted bail to petitioners charged with possessing intoxication drugs (Tapendatol) and facing under Section 328 IPC. Bail conditions included residential surveillance and reporting to police.
Petitioners released on bail on execution of separate bond for Rs. 25,000 with two sureties and specific reporting conditions.
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.
Crl.O.P.Nos.20605 & 20647 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2022
CORAM
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.Nos.20605 & 20647 of 2022
Rajkavin ... Petitioner in Crl.O.P.No.20605 of 2022 Vijay ... Petitioner in Crl.O.P.No.20647 of 2022 Vs.
State represented by, The Inspector of Police, Chithode Police Station, Erode District. Crime No.372 of 2022 ... Respondent in both Crl.O.P.Nos.
COMMON PRAYER: Criminal Original Petitions filed under Section 439 of Cr.P.C., pleased to grant bail to the petitioners in Crime No.372 of 2022
pending investigation on the file of the respondent police.
In both Crl.O.P.Nos.,
For Petitioners : Mr.J.Ranjithkumar For Respondent : Mr.C.E.Pratap Government Advocate (Crl. Side)
Crl.O.P.Nos.20605 & 20647 of 2022
COMMON ORDER
The petitioners, who were arrested and remanded to judicial
custody on 09.08.2022 for the offence punishable under Section 328 of IPC
in Crime No.372 of 2022 on the file of respondent police, seek bail.
hours, on receiving the secret information, the Sub-Inspector of Police and his team went to the place of occurrence and found the petitioners and the other accused were in possession of intoxication drug namely, Tapendatol 100mg tablets one sheet containing 10 tablets for illegal sale, knowing that it will cause injuries to human health and the accused were arrested and their confession statement has also been recorded. Based on their confession statement of the accused, the respondent has seized 10 Tapendatol tablets each weighing 100mg from each accused and the case has been registered in Crime No.372 of 2022 for the offence under Section 328 of IPC on the same day. Hence, the case.
petitioners are innocent and they have been falsely implicated in this case.
Crl.O.P.Nos.20605 & 20647 of 2022
He would further submit that the Tapendatol tablets seized by the respondent is not the narcotic substance and he would also submit that there is no bad antecedents against the petitioners and hence, he seek to enlarge the petitioners on bail.
"6) I submit that during the course of investigation,
I have sent the requisition letter regarding the above case in order to obtain legal opinion for section alteration belongs to the NDPS Act to the Additional Director of Prosecution, Erode District on 13.09.2022 and he had opined as follows,
"Moreover, the tablets Tapentadol is not a
NARCO SUBSTANCE in order to invoke the provisions of NDPS Act in the event of any violations. The tablet Tapentadol is not brought under the NDPS Act in as much as it is not notified in the Schedule. Therefore it is not desirable to take action, against the accused under any of the penal provision of the NDPS Act. Bringing the accused under the purview of NDPS Act, the present situation is not warranted.
Crl.O.P.Nos.20605 & 20647 of 2022
The accused can only be dealt with u/s.328 IPC and not under NDPS Act. The NDPS Act is exclusively intended for the drugs notified in the Schedule of the Act. The medicine Tapentadol does not come under any category in the NDPS Act. There I am of the considered opinion that the action u/s. 328 IPC would be sufficient to meet ends of justice."
7 ) I submit that in view of the above opinion there is no necessity to alter the offences under NDPS Act, since Tapentadol is not covered under the schedule to section 2 of NDPS Act."
Crl.O.P.Nos.20605 & 20647 of 2022
Five thousand only) each with two sureties ( out of which, one surety should be either father or mother of the petitioners and should produce document to show his/her means) , each for a like sum to the satisfaction of
the learned Judicial Magistrate-III, Erode and on further conditions that:
[a] the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity;
[b] the petitioners shall stay at Ramanathapuram and report before the Inspector of Police, Ramanathapuram Town Police Station, Ramanathapuram every day at 10.30 a.m., and 5.30pm., until further orders;
[c] the petitioners shall not abscond either during investigation or trial;
[d] the petitioners shall not tamper with evidence or witness either during investigation or trial;
[e] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioners in accordance with law as if the conditions have been imposed and the
Crl.O.P.Nos.20605 & 20647 of 2022
petitioners released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];
[f] If the accused thereafter abscond, a fresh FIR can be registered under Section 229A IPC.
20.09.2022
ham
Crl.O.P.Nos.20605 & 20647 of 2022
To
Crl.O.P.Nos.20605 & 20647 of 2022
A.D.JAGADISH CHANDIRA,J.
ham
Crl.O.P.Nos.20605 & 20647 of 2022
20.09.2022
2 issues framed by the court
Whether bail should be granted to the petitioners charged with possession of intoxication drugs for illegal sale.
Whether the offence should be booked under Section 328 of IPC or the NDPS Act.
Colour shows how this judgement treated each authority
P.K.Shaji vs. State of KeralaExplained¶49
P.K.Shaji vs. State of Kerala [(2005) AIR SCW 5560] · Who else cites this
2 provisions across 2 enactments
Rajkavin
Vijay
State represented by The Inspector of Police, Chithode Police Station, Erode District
A.D.JAGADISH CHANDIRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
A.D.JAGADISH CHANDIRA
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