New Delhi, Jun 25 (ILNS) The Delhi High Court, while allowing bail to a person accused of taking 110 bottles of Phensedyl narcotic drug along with him while travelling to Saudi Arabia, today referred the issue to a large Bench, to decide on whether to consider the entire mixture or solution as drugs is applicable on manufactured drug containing miniscule percentage of narcotic drug or not.
A Single-Judge Bench of Justice Subramonium Prasad raised the following issue, “Whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized – small, commercial or in between?”
The bail application has been filed on the ground that petitioner was illiterate and does not know either Hindi or English and was carrying cough syrup. It was further stated that when the pack was searched, it was in pre-opened condition and not opened before the petitioner and he suggested that the pack could have been tampered with.
The bail application filed before the Special Judge (NDPS) has been rejected on the ground that the petitioner was having 11,000 ml of cough syrup and therefore held that it was a commercial quantity and since the petitioner has committed an offence involving commercial quantity.
However, the petitioner contended that each bottle contained only 0.17 percent of Codeine concentration and cannot be called as commercial quantity.
The High Court, while referring to a Delhi HC judgement in Iqbal Singh, observed that the Court has created a distinction between illicit substances, which are sold in mixtures containing neutral substances or which may have the effect of enhancing the effect of the offending substance or facilitate its abuse and a non-offending substance or preparation with bifacial qualities, which may have the miniscule quantities of a substance, which are also used for medicinal purposes and are available in medical shops across country.
In contrary to this, the Bench, while referring to the judgement of Supreme Court in the case of Hira Singh vs Union of India, noted that if the argument of prosecution based on judgement is accepted then any person who purchases or obtains a bottle of cough syrup without a valid prescription from a doctor would be in possession of an intermediate quantity of Codeine as he would be in possession of 100 grams of a manufactured drug and would face punishment under Section 21 (b) of the NDPS Act.
The Court further noted that Codeine is a Schedule H-1 Drug, under the Drugs and Cosmetics Act, 1940 and is not to be sold without a valid prescription. The reality however is different. This Court can take judicial notice of the fact that any person desirous of obtaining a Codeine based cough syrup can do so without much difficulty, the Bench added.
It raised the following issues for the consideration of the larger bench,
“a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?
b) whether Note 4 of the SO 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra, Pt II, Section 3 (ii) dated 19th October 2001, as amended on November 18, 2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?
c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra, Pt II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?”
Whereas, while referring the questions to a larger bench, the court allowed interim bail to the petitioner for 90 days upon furnishing a personal bond of Rs 35,000 with surety in like amount. ILNS/