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The Delhi High while hearing a case under the Narcotic Drugs and Psychotropic Substances Act (NDPS) referred to a larger bench  the question as to “Whether in cases specifically related to manufactured drug with a minuscule 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?”

The order was passed by a single Judge bench of Justice Subramonium Prasad while considering a bail application of a person wo was accused of carrying 110 bottles of Phensedyl cough syrup with him to Saudi Arabia.

The petitioner submitted that he was  illiterate and did not know either Hindi or English and was carrying cough syrup. He also contended that when the pack was searched, it was in pre-opened condition and it was not opened before the petitioner suggested that the pack could have been tampered with.

The petitioner filed an application for bail before the learned Special Judge (NDPS) and it was contended that each bottle contained only 0.17% of Codeine concentration and cannot be called as commercial quantity. The learned Special Judge vide order dated March 15, 2021 held 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, the bail application was rejected.

The petitioner therefore approached the High Court against the order of the Special Judge.

The question before the Court was “whether the rigour of Section 37 of the NDPS Act which regulates the grant of bail for offence involving commercial quantity of drugs is attracted or not?”

The Court referring to the Judgement of Iqbal Singh vs State said that this 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

The Court observed 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. Any Codeine based cough syrup ideally should not be available without a 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.”

 If the argument of the prosecution based on Hira Singh vs Union of India (2020) SCC OnLine SC 382  is accepted, the Court observed that in that case 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. A dealer of ganja caught with a quantity less than 20 kilograms, would face the same punishment as a person possessing a single bottle of Codeine based cough syrup.

The bench thus observed that in  Hira Singh v. Union of India, the Supreme Court does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of narcotic drugs or psychotropic substance out of a neutral substance. “

"The judgment of Iqbal Singh is therefore contrary to a plain reading of the judgment of the Supreme Court” said the bench.

The Court further said that Since cases of this nature are common there is a strong possibility that different Single Judge Benches of this Court may take different opinions while deciding as to whether the rigour of Section 37 would be attracted or not in such cases. It would therefore be in the interest of justice that an authoritative and final pronouncement is made by a larger Bench of this Court.

The following questions are put before the larger Bench

 a) whether in cases specifically related to manufactured drug with a BAIL APPLN 1136/2021 Page 13 of 14 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 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 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?

The Court however observed that since the question was being referred to a larger bench, the  Court was inclined to grant the petitioner interim bail for 90 days.

 

Case Title: Mohd Ahsan vs Custom BAIL APPLN. l 136/2021