Full Judgment Text
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CASE NO.:
Appeal (crl.) 672 of 2006
PETITIONER:
State of Uttaranchal
RESPONDENT:
Rajesh Kumar Gupta
DATE OF JUDGMENT: 10/11/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
The respondent herein is an Ayurvedacharya. He operates from two
clinics known as : (1) Neeaj Clinic Pvt. Ltd. (NCPL) and (2) Dr. B.S. Gupta
Medical Charitable Society (BSGMCS). Advertisements were, allegedly,
being issued by him in various newspapers claiming that medicines used by
him were prepared from herbal plants collected from the Banks 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 said
clinics. 70 kgs. pure phenobarbitone were recovered. It is alleged that
through NCPL 336.88 kgs., 524 kgs., 537.32 kgs. and 117 kgs. of drugs
(phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004
and 2004-2005 (April to July) respectively and through BSGMCS 398.65
kgs., 406.88 kgs., 519.95 kgs. and 235.12 kgs. of drugs (phenobarbitone)
were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005
(April to July) respectively.
The drugs allegedly used to be dispatched by post also. Appellant
was arrested on 13.8.2004 and since then he is in jail custody. Charges were
framed against him under Section 8 read with Section 22 of the Narcotic
Drugs & Psychotropic Substances Act, 1985 (’1985 Act’, for short) and
Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. An
application for bail was moved by him before the Special Judge. It was
dismissed. He filed an application for bail, however, before the High Court
on 30.7.2005, which has been granted. Special Leave Petition was filed
thereagainst and by an order dated 14.11.2005, the bail application was
revived. The High Court was requested to dispose of the same
expeditiously. By reason of the impugned order dated 2.12.2005 the said
bail application has been allowed. The State is, thus, before us.
In its order the High Court noticed that ordinarily applications for bail
are required to be considered having regard to Section 37 of the 1985 Act.
It, however, opined that the drugs in question not being listed in the 1st
Schedule appended to Narcotic Drugs and Psychotropic Substances Rules,
1985 (’the Rules’, for short), the respondent cannot be said to have
committed any offence under Section 8 read with Section 22 of 1985 Act.
Mr. A. Sharan, learned Additional Solicitor General appearing on
behalf of the State submitted that the High Court committed a serious error
in opining that the offence under Section 22 having not been referred to in
Section 37 of 1985 Act, the rigours thereof have no application. The learned
Additional Solicitor General urged that although in terms of Section 8 of
1985 Act, an exception has been made as regards use of the psychotropic
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substances for medicinal or scientific use, such use must be bona fide and in
terms of the Rules framed under the 1985 Act.
Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the
respondent, on the other hand, contended that the drugs alleged to have been
seized from the Neeraj Clinic being Schedule H drugs as envisaged in Drugs
and Cosmetics Act and the same having been used for medicinal purposes
and being not the drugs provided for in the rules framed under the 1985 Act,
prima facie no offence can be said to have been committed under the 1985
Act. Our attention in this behalf has been drawn to a decision of a learned
Single Judge of the Delhi High Court in Rajinder Gupta vs. The State
reported in 123 (2005) DLT 55.
The 1985 Act was enacted with a view to consolidate and amend the
law relating to narcotic drugs, to make stringent provisions for control and
regulation of operations relating to narcotic drugs and psychotropic
substances, to provide for the forfeiture of property derived from, or used in
illicit traffic in narcotic drugs and psychotropic substances, to implement the
provisions of the International Convention on Narcotic Drugs and
Psychotropic Substances and for matters connected therewith.
Section 2 (viia) defines "commercial quantity" to mean any quantity
greater than the quantity specified by the Central Government by
notification in the Official Gazette. "Small quantity" has been defined in
Section 2(xxiiia) to mean any quantity lesser than the quantity specified by
the Central Government by notification in the Official Gazette.
Section 8 provides for prohibition in respect of certain operations,
stating :
"8. Prohibition of certain operations.--No person shall\026
(a) cultivate any coca plant or gather any
portion of coca plant; or
(b) cultivate the opium poppy or any cannabis
plant; or
(c) 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 thereunder and in a
case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in
accordance with the terms and conditions of such licence,
permit or authorisation:
Provided that, and subject to the other provisions
of this Act and the rules made thereunder, the prohibition
against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use,
consumption, purchase, sale, transport, warehousing,
import inter-State and export inter-State of ganja for any
purpose other than medical and scientific purpose shall
take effect only from the date which the Central
Government may, by notification in the Official Gazette,
specify in this behalf:
Provided further that nothing in this section shall
apply to the export of poppy straw for decorative
purposes."
Section 37 of the 1985 Act reads as under:
"37. Offences to be cognizable and non-bailable.\027
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(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),\027
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 2 or section 27A and
also for offences involving commercial quantity shall be
released on bail or on his own bond unless\027
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973
(2 of 1974), or any other law for the time being in force
on granting of bail."
The Central Government is empowered to permit, control and regulate
cultivation or gathering of any portion of coca plant or the production,
possession, sale, purchase, transport import inter-State, export inter-State,
use or consumption of coca leaves, etc. in terms of Section 9 of the 1985
Act. Section 10 empowers the State Government to permit, control and
regulate in regard to matters specified therein. Section 22 provides for a
penal provision for three categories of cases in regard to contravention
involving small quantity, contravention involving quantity lesser than
commercial quantity but greater than small quantity and contravention
involving commercial quantity.
The Central Government is conferred with the power under Section 9
read with Section 76 to fame rules, pursuant whereto rules have been
framed, known as Narcotic Drugs and Psychotropic Substances Rules, 1985
(hereinafter referred as ’the Rules’). Chapter VI of the Rules deals with
import, export and transshipment of narcotic drugs and psychotropic
substances.
Rule 53 of the Rules reads thus :
"53. General prohibition.\026 Subject to the other
provisions of this Chapter, the import into and export out
of India of the narcotic drugs and psychotropic
substances specified in Schedule I is prohibited :
Provided that nothing in this rule shall apply in
case the drug substance is imported into or exported out
of India subject to an import certificate or export
authorisation issued under the provision of this Chapter
and for the purpose mentioned in Chapter VII-A."
Rule 64 provides for general prohibition, stating :
"64. General Prohibition.- 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 I."
Rule 65 provides for manufacture of psychotropic substances with
certain restrictions imposed therefor. Sub-Rule (3) of Rule 65 permits
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manufacture of psychotropic substances by a licensee in regard to the
quantity mentioned therein. The proviso appended thereto reads as follows :
"Provided that nothing contained in this rule shall
apply in case the psychotropic substances specified in
Schedule I are manufactured, possessed, transported,
imported inter-State, exported inter-State, sold,
purchased, consumed or used subject to other provisions
of this Chapter which applies to psychotropic substances
which are not included in Schedule I and for the purposes
mentioned in Chapter VII-A :
Provided further that the authority in charge of the
drug control in a State referred to in sub-rule (2) of rule
65 shall consult the Narcotics Commissioner before
issuing a licence under rule 65 in respect of psychotropic
substances included in Schedule I and Schedule III."
Rule 66 of the Rules reads thus :
"66. Possession, etc., of psychotropic
substances.\026 (1) No person shall possess any
psychotropic substance for any of the purposes covered
by the 1945 Rules, unless he is lawfully authorised to
possess such substance for any of the said purposes under
these Rules.
(2) Notwithstanding anything contained in sub-rule
(1), any research institution or a hospital or dispensary
maintained or supported by Government or local body or
by charity or voluntary subscription, which is not
authorised to possess any psychotropic substance under
the 1945 Rules, or any person who is not so authorised
under the 1945 Rules, may possess a reasonable quantity
of such substance as may be necessary for their genuine
scientific requirements or genuine medical requirements,
or both for such period as is deemed necessary by the
said research institution or, as the case may be, the said
hospital or dispensary or person:
Provided that where such psychotropic substance
is in possession of an individual for his personal medical
use the quantity thereof shall not exceed one hundred
dosage units at a time.
(3) The research institution, hospital and
dispensary referred to in sub-rule (2) shall maintain
proper accounts and records in relation to the purchase
and consumption of the psychotropic substance in their
possession."
Rule 67 provides for transport of psychotropic substances. It reads as
under :
"67-A. Special provisions regarding
manufacture, possession, transport, import-export,
purchase and consumption of narcotic drugs and
psychotropic substances for medical and scientific
purposes.\026 Notwithstanding anything contained in the
foregoing provisions of these rules \026
(a) a narcotic drug and psychotropic substance may be
used for \026
(i) scientific requirement including analytical
requirements of any Government laboratory
or any research institution in India or abroad;
(ii) very limited medical requirements of a
foreigner by a duly authorised person of a
hospital or any other establishment of the
Government especially approved by that
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Government;
(iii) the purpose of de-addiction of drug addicts by
Government or local body or by an approved
charity or voluntary organisation or by such
other institution as may be approved by the
Central Government.
(b) persons performing medical or scientific functions
shall keep records concerning the acquisition of the
substance and the details of their use in Form 7 of
these rules and such records are to be preserved for
at least two years after their (sic);
(c) a narcotic drug and psychotropic substance may be
supplied or dispensed for use to a foreigner pursuant
to medical prescription only from the authorised
licensed pharmacists or other authorised retail
distributors designated by authorities responsible for
public health."
The High Court as noticed hereinbefore proceeded on the basis that
offences under Section 8 or Section 22 do not come within the purview of
Section 37 of the Act. Our attention was drawn to Section 22 of the 1985
Act to contend that offences in relation to commercial quantity having
specifically been mentioned in Section 37 of the 1985 Act, the same shall
also be applicable. We would proceed on the assumption that Section 37
embraces within its fold an offence contemplated under Section 22 of the
1985 Act also so far as it, inter alia, relates to possession of commercial
quantity of contraband.
Chapter III of the 1985 Act, however, provides for prohibition, control
and regulation. Section 8 provides for prohibition of certain operations in
terms whereof no person shall make any cultivation of the plants mentioned
in Clauses (a) and (b) thereof or, inter alia, 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. The said provision contains an exception which
takes within its fold all the classes of cases preceding thereto. Use of the
contraband for medical or scientific purposes is, therefore, excluded from
the purview of the operation thereof. However, such exception carves out
under the 1985 Act specifically refers to the manner and to the extent
provided by the provisions of the 1985 Act or the rules or orders made
thereunder.
It has not been brought to our notice that the 1985 Act provides for the
manner and extent of possession of the contraband. The Rules framed under
Section 8 of the 1985 Act read with Section 76 thereof, however, provides
for both the manner and the extent, inter alia, of production, manufacture,
possession, sale, purchase, transport, etc. of the contraband. Chapter VI of
the 1985 Rules provides for import, export and transshipment of narcotic
drugs and psychotropic substances. Rule 53 contains general prohibition in
terms whereof the import and export out of India of the narcotic drugs and
psychotropic substances specified in Schedule-I appended thereto is
prohibited. Such prohibitions, however, is subject to the other provisions of
the said Chapter. Rule 63 to which our attention has been drawn specifically
prohibits import and export of consignments through a post office box but
keeping in view the general provisions contained in Rule 53 the same must
be held to apply only to those drugs and psychotropic substances which are
mentioned in Schedule-I of the Rules and not under the 1985 Act. Similarly,
Chapter VII provides for psychotropic substances. Rule 64 provides for
general prohibition. Rules 53 and 64, thus, contain a genus and other
provisions following the same under the said Chapter are species thereof.
This we say in view of the fact that whereas Rule 64 provides for general
prohibition in respect of sale, purchase, consume or use of the psychotropic
substances specified in Schedule-I, Rule 65 prohibits manufacture of
psychotropic substances; whereas Rule 66 prohibits possession, etc. of
psychotropic substances and Rule 67 prohibits transport thereof. Rule 67-A
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provides for special provisions for medical and scientific purposes.
The general provisions contained in both Rules 53 and 64, therefore,
refer only to the drugs and psychotropic substances specified in Schedule-I.
It is neither in doubt nor in dispute that whereas the Schedule appended to
the 1985 Act contains the names of a large number of psychotropic
substances, Schedule-I of the Rules prescribes only 35 drugs and
psychotropic substances.
Respondent admittedly possesses an Ayurveda Shastri degree. It is
stated that by reason of a notification issued by the State of Uttar Pradesh
dated 24.2.2003, the practitioners of Ayurvedic system of medicines are
authorised to prescribe allopathic medicines also. Respondent runs a clinic
commonly known as ’Neeraj Clinic’. He is said to be assisted by eight other
medical practitioners being Allopathic and Ayurvedic doctors. It is also not
in dispute that only seven medicines were seized and they are mentioned in
Schedules G and H of the Drugs and Cosmetics Act. In this regard, we may
notice the following chart:
S.No.
Medicine seized
Schedule H
Drugs &
Cosmetics
Act
The
Schedule
1985 Act
Schedule I
1985
Rules
1.
Epilan C.
Phenobarbitone
Yes
Entry 69
-
2.
Phensobar \026 50
Yes
-
-
3.
Chlorodiazepoxide
Yes
Entry 36
-
4.
Carbin
Yes
-
-
5.
Wefere
(ayurvedic)
-
-
-
6.
Phenso (Schedule
\026 G)
-
-
-
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7.
Epibar \026 30
Yes
-
-
It is not in dispute that the medicines seized from the said clinic come
within the purview of Schedules G and H of the Drugs and Cosmetics Act.
It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone
and Chlorodiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act
respectively, whereas none of them finds place in the Schedule I appended to
the 1985 Rules. If the said drugs do not find place in Schedule I appended to
the Rules, the provisions of Section 8 of the 1985 Act would have no
application whatsoever. Section 8 of the 1985 Act contains a prohibitory
clause, violation whereof leads to penal offences thereunder.
In view of the fact that all the drugs being Item Nos. 1,2,3,4,6 & 7
being allopathic drugs mentioned in Schedules G and H of the Drugs and
Cosmetics Act indisputably are used for medicinal purposes. Once the drugs
are said to be used for medicinal purposes, it cannot be denied that they are
acknowledged to be the drugs which would come within the purview of
description of the expression "medicinal purposes".
The exceptions contained in Section 8 of the 1985 Act must be judged
on the touchstone of :
(i) whether drugs are used for medicinal purposes.
(ii) whether they come within the purview of the regulatory
provisions contained in Chapters VI and VII of the 1985 Rules.
Chapter VII-A of the 1985 Rules which was introduced by a
notification dated 25.6.1997 with effect from 27.6.1997 provides for special
provisions regarding manufacture, possession, transport, import-export,
purchase and consumption of narcotic drugs and psychotropic substances for
medical and scientific purposes.
It, therefore, permits use of narcotic drugs and psychotropic
substances for the purposes mentioned therein. Rule 67-A does not abrogate
the provisions of Rule 53 or Rule 64 provided for in Chapters VI and VII of
the 1985 Rules. They are in addition to the said provisions. It, however,
contains some more restrictions. We are only concerned with Clause (b) of
Rule 67-A, in terms whereof the records concerning the acquisition of the
substance and the details of their use in Form 7 of those Rules are to be
mentioned.
Violation of Clause (c) of Rule 67-A does not appear to have been
alleged against Respondent. It was, however, stated at the Bar that
Respondent has complied with the said provisions and, in fact, along with
his bail application requisite documents have been furnished. Rule 67-A
expressly permits use of certain drugs for limited medical requirements of a
foreigner. It, however, appears that the sentence contained in Sub-Rule (b)
of Rule 67-A is not complete.
Section 37 of the 1985 Act must be construed in a pragmatic manner.
It cannot be construed in such a way so as to negate the right of party to
obtain bail which is otherwise a valuable right for all practical purposes.
We may notice that in Dadu alias Tulsidas vs. State of Maharashtra
[(2000) 8 SCC 437], this Court struck down Section 37 of the 1985 Act in
terms whereof power to suspend sentence by an appellate court was taken
away. This Court, however, opined that Section 37 of the 1985 Act would
be applicable. On the aforementioned backdrop we may analyse the
requirements of the provisions contained in Section 37 of the 1985 Act.
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In Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra &
Anr. [(2005) 5 SCC 294], the law has been stated in the following terms:
"The wording of Section 21(4), in our opinion,
does not lead to the conclusion that the court must arrive
at a positive finding that the applicant for bail has not
committed an offence under the Act. If such a
construction is placed, the court intending to grant bail
must arrive at a finding that the applicant has not
committed such an offence. In such an event, it will be
impossible for the prosecution to obtain a judgment of
conviction of the applicant. Such cannot be the intention
of the legislature. Section 21(4) of MCOCA, therefore,
must be construed reasonably. It must be so construed
that the court is able to maintain a delicate balance
between a judgment of acquittal and conviction and an
order granting bail much before commencement of trial.
Similarly, the court will be required to record a finding as
to the possibility of his committing a crime after grant of
bail. However, such an offence in futuro must be an
offence under the Act and not any other offence. Since it
is difficult to predict the future conduct of an accused, the
court must necessarily consider this aspect of the matter
having regard to the antecedents of the accused, his
propensities and the nature and manner in which he is
alleged to have committed the offence.
It is, furthermore, trite that for the purpose of
considering an application for grant of bail, although
detailed reasons are not necessary to be assigned, the
order granting bail must demonstrate application of mind
at least in serious cases as to why the applicant has been
granted or denied the privilege of bail.
The duty of the court at this stage is not to weigh
the evidence meticulously but to arrive at a finding on the
basis of broad probabilities. However, while dealing with
a special statute like MCOCA having regard to the
provisions contained in sub-section (4) of Section 21 of
the Act, the court may have to probe into the matter
deeper so as to enable it to arrive at a finding that the
materials collected against the accused during the
investigation may not justify a judgment of conviction.
The findings recorded by the court while granting or
refusing bail undoubtedly would be tentative in nature,
which may not have any bearing on the merit of the case
and the trial court would, thus, be free to decide the case
on the basis of evidence adduced at the trial, without in
any manner being prejudiced thereby."
The law to the same effect has been laid down in Babanrao
Tukaram Ranjabe vs. State of Maharashtra [JT 2006 (11) SC 33].
Reliance has been placed by the learned Additional Solicitor General
of India on Collector of Customs, New Delhi vs. Ahmadalieva Nodira
[(2004) 3 SCC 549] wherein this Court stated:
"7. The limitations on granting of bail come in
only when the question of granting bail arises on merits.
Apart from the grant of opportunity to the Public
Prosecutor, the other twin conditions which really have
relevance so far as the present accused-respondent is
concerned, are: the satisfaction of the court that there are
reasonable grounds for believing that the accused is not
guilty of the alleged offence and that he is not likely to
commit any offence while on bail. The conditions are
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cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has
to be based on reasonable grounds. The expression
"reasonable grounds" means something more than prima
facie grounds. It contemplates substantial probable
causes for believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated in
the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case at hand the High Court seems to have
completely overlooked the underlying object of Section
37."
This Court, thus, therein was required to consider the merit of the
prosecution case against the accused therein and on consideration thereof
opined that the rigours of Section 37 of the Act are applicable.
This Court, however, in the said decision was not concerned with the
construction of Section 8 of the 1985 Act. It does not and did not lay down
a law that although the provisions of the 1985 Act shall prima facie not
apply, no bail can be granted.
In Sajan Abraham vs. State of Kerala [(2004) 4 SCC 441], this
court held :
"Learned counsel for the State submitted that
unless the appellant held a permit granted under Rule 66
of the NDPS Rules, he cannot claim benefit under the
provisions of that rule. We find no substance in the
argument because having regard to the provisions of
Section 9 of the NDPS Act under which the Rules have
been framed, the Central Government is empowered by
the Rules to permit and regulate the matters mentioned
therein. Rule 66 itself permits possession of psychotropic
substance below a specified quantity and subject to the
conditions stated therein. Thus if the possession of
psychotropic substance is justified under the said rule, no
separate permit is required to be issued to the person
possessing such psychotropic substance because the rule
itself permits possession of such psychotropic substance
to the extent mentioned in the rule and subject to the
conditions laid down therein."
{See also Hussain vs. State of Kerala [(2000) 8 SCC 139].}
In the instant case, we are of the opinion that Section 37 of the 1985
Act would prima facie has no application in view of the exception contained
in Section 8 thereof read with the Rules.
The views which we have taken appear also to have been taken by the
High Court of Delhi in Rajinder Gupta vs. The State [123 (2005) DLT 55]
as also the Bombay High Court in Pradeep Dhond vs. Intelligence Officer,
Narcotic & Control Bureau, Ballard Estate and Anr. [Criminal
Application No. 6787 of 2005] disposed of on 7th February, 2006 by the
Bombay High Court.
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
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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 years now, in our opinion, it is not a fit case where we should
exercise our discretionary jurisdiction under Article 136 of the Constitution
of India.
For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.