State
of Uttaranchal Vs.
Rajesh Kumar Gupta
[2006] Insc 787 (10
November 2006)
S.B.
Sinha & P.P. Naolekar 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 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
(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.
(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974),
(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
(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.
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 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.
(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. Notwithstanding anything contained in the
foregoing provisions of these rules
(a) a
narcotic drug and psychotropic substance may be used for
(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 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
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
50 Yes - -
3. Chlorodiazepoxide
Yes Entry 36 –
4. Carbin
Yes - -
5. Wefere
(ayurvedic) - - -
6. Phenso
(Schedule G) - - -
7. Epibar
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.
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
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 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.
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