L.Abuthahir v. The Superintendent Of Customs

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Wednesday, the Twentieth day of December Two Thousand Seventeen PRESENT The Hon`ble Mr.Justice M.DHANDAPANI CRL OP(MD) No.23400 of 2016 L.ABUTHAHIR ... PETITIONER / ACCUSED-2 Vs THE SUPERINTENDENT OF CUSTOMS CENTRAL INTELLIGENCE UNIT, O/O. THE COMMISSIONER OF CUSTOMS, TRICHY. ... RESPONDENT / COMPLAINANT For Petitioner : MR.VEERA KATHIRAVAN SENIOR COUNSEL FOR M/S.VEERA ASSOCIATES For Respondent : MR.ARUL VADIVEL @ SEKAR SPECIAL PUBLIC PROSECUTOR FOR CUSTOMS PETITION FOR BAIL Under Sec. 439 Cr.P.C.

ORDER : The Court Made the following order :- The petitioner/Accused No.2, who was arrested and remanded to judicial custody on 29.04.2016 for the alleged offences punishable under Sections 8 (c) of NDPS Act, 1985 and punishable under Sections 22(c), 27(A), 28, 29 of NDPS Act, 1985 read with Rules 65(A), 66 and 67 of NDPS Rules, 1985, in Case O.R.No.1/2016 CIU-Trichy, on the file of the respondent, seeks bail.

2.The case of the prosecution is that one parcel found in M/s.Shri Renganathan Speed Parcel Service, No.8, Nirmala Building, Fort Station Road, Trichy, booked by Sri Mohamed Syed Musthafa, Trichy to be transported to one Abuthahir, Chennai, mentioning Mobile No.9043617633 containing boxes of "Zol Fresh" 13X10X10X10 tablets 13,000 tablets of 10 mgs along with Invoice No.77573, dated 23.04.2016 of M/s.PL.A.Kanagu Pharma, 10-C, Alexandria Road, Cantonment, Trichy issued in the name of M/s.Athma the Mind Center, 10th Cross East, (Dr.Ramakrishnan), Trichy were recovered in the presence of two witnesses and the "Zol Fresh" tablet containing "Zoipidem" as a psychotropic substances, as prescribed under S1.No.109 of Schedule to NDPS Act, 1985 read with Serial Nos.238 and 239 of S.O.1055 (3), dated 19.01.2001.

3.According to the prosecution, totally 13,300 tablets, it comes to 2 kgs of "Zoipidem", which is a commercial quantity as per the schedule to NDPS Act and therefore, the petitioner has been implicated in the above said offences.

4.Mr.Veerakathiravan, the learned Senior Counsel for the petitioner would submit that initially, the petitioner was arrested on the above said offences on 29.04.2016. The lower Court granted bail to the petitioner on 05.08.2016 and thereafter, the respondent filed a petition in Crl.O.P.(MD)No.14252 of 2016 for cancellation of bail granted to the petitioner. This Court, by order dated 23.08.2016, cancelled the bail granted on 05.08.2016. 5.Again the petitioner filed a bail application before this Court in Crl.O.P.(MD)No.23400 of 2016. This Court, based on the medical certificates produced by the petitioner and also considering the recommendation made by the Superintendent of Central Prison stating that the petitioner is in serious condition, granted interim bail on 15.09.2017. Accordingly, he was released on bail 19.09.2017 for taking treatment. Again, this case was listed before this Court for considering main bail petition.

6.Mr.Veerakathiravan, the learned Senior Counsel appearing for the petitioner further submitted that the provisions of Section 37 of the NDPS Act imposed a precondition to the Court to consider bail application unless the accused person has proved that he has not committed any offence, this Court may grant bail by invoking Section 37 of the NDPS Act.

7.Mr.Veerakathiravan, the learned Senior Counsel appearing for the petitioner would submit that his arguments would be on three fold:- (i) the petitioner has not committed any offence. (ii) the petitioner was not present in the place of occurrence and the contraband was not recovered from the petitioner. (iii)The petitioner was arrested only based on the confession statement secured by the prosecuting agency, which was obtained from A1 and A3 which was not informed to the higher officials. 8.Even according to the prosecution, the contraband seized by the respondents is only 130 grams which is less than commercial quantity as per entry in Sl.No.239 of the notification issued by the Central Government, dated 18.11.2009 and also the medical grounds. In support of his contentions, the learned Senior Counsel for the petitioner relied on the following judgments. "(i)In Narcotics Control Bureau Vs.Kishan Lal and others reported in 1991 (1) SCC 705;

(ii)In Dolat Ram and others Vs. State of Haryana reported in 1995 (1) SCC 349;

(iii)In Radhakrishnan and Another Vs.State by Inspector of Police, Kanyakumari reported in (1995 (1) SCC 349); (iv)In Karnali Singh Vs.State of Haryana reported in 2009

(8) SCC 359 and (v)In Tofan Singh Vs. State of Tamil Nadu reported in 2013

(12) SCALE 552".

9.Mr.Veerakathiravan, learned Senior Counsel for the petitioner further contended that the actual contraband or entire mixture or other components can be taken as commercial quantity. In the present case, as per the prosecution, the "Zoipidem" containing 130 grams. It is only a small quantity and it is not coming under the commercial quantity and the issue is pending before the Hon'ble Supreme Court.

10.He would further contend that as the contraband allegedly purchased by the petitioners is only a small quantity and not commercial quantity and considering the petitioner's health condition based on the medical records, this petition may be allowed by enlarging the petitioner on bail.

11.The learned Senior Counsel appearing for the petitioner has also relied upon the medical receipt, dated 12.12.2017, given by one Dr.L.Vijajyalakshmi, Assistant Civil Surgeon, Government General Hospital, Chennai, wherein it has been stated as follows: "He is suffering from following disease such as Chronic Pancreatitic, Triglyecides, Fundal Gastritis, Dysliploemia, Type II Diabetis, Hepatomegaly with fatty chages. For which he was undertaking treatment from 20.09.2017 to till date. He is very bad in condition and has to take complete bed rest". The learned Senior Counsel appearing for the petitioner also submitted that after completion of investigation, a complaint has also filed before the Special Court for NDPS Act cases, Pudukottai. Even after filing complaint, keeping the petition not granting bail to the petitioner is not sustainable. Therefore, the learned Senior Counsel appearing for the petitioner prayed that the petitioner may be enlarged on bail.

12.Mr.Arul Vadivel @ Sekar, the learned Special Public Prosecutor appearing for the respondent contended that the small quantity or commercial quantity has already been decided by this court in Crl.O.P.(MD)No.23400 of 2016. He would further submit that the psychotropic drug recovered from the accused is well above the commercial quantity prescribed in the schedule and the restrictions contained in Section 37 of the NDPS Act. He would further submit that in various judgments,unless and until the contrary is proved against the accused, he cannot be released on bail.

SI.

No.

Case No.

Parties Total number/ weight of the medicine Weight of the narcotic/ psychotropic is in the medicine Finding of the Court Result

01. CRM-M 20589/ Gurinder Singh Vs.

State of Punjab Momotil Tablets 25000 Diphenoxylate Hydrochloride 2,4 mg in each tablet Commercial quantity Bail dismissed

02. CRM-M 20803/ Kashmiri Lal Vs.

State of Punjab Phenotil tablets 20000 Diphenoxylate Hydrochloride 2.3 mg in each tablet Commercial quantity Bail dismissed

03. CRM-M 20407/ Parveen Kumar Vs.

State of Punjab 7.980 kgm mixture of Dextroproproxyp hene Hydrochloride and paracetamol Dextroproprox yphe ne Hydrochloride 315.60 grms Commercial quantity Bail dismissed

04. CRM-M 19588/ Sanjiv Kumar Vs.

State of Punjab 2 kgm mixture of Dextroproproxyp hene Hydrochloride and paracetamol Dextroproprox yphe ne Hydrochloride 67.66 grms Commercial quantity Bail dismissed

05. CRM-M 19686/ Rajinder Kumar Vs.

State of Punjab 500 gms mixture of Alprazolam Alprazolma 123.40 grms Commercial quantity Bail dismissed

06. CRM-M 8122/ Rajesh Kumar Vs.

State of Punjab 20000 tablets of Phenotil (1360 grms) and 10000 tablets of Microlit (760 grms) Diphenoxylate Hydrochloride 2.4 gms in each tablet (48 grms in Phneotil and 23 grms in Mircolit) Commercial quantity Bail dismissed

07. CRM-M 16670/ Baljit Singh @ Sonu Vs.

State of Punjab 5000 tablets of Momolit (325 grms) 300 injections of Bruprenorphin e (total 0.172 grms) Diphenoxylate 2.39 mg in each tablet Commercial quantity Bail dismissed Buprenorphine 0.287 mg per ml.

08. CRM-M 17672/2 Vipan Kumar Vs.

State of Punjab 88000 tablets of Phenotil (8624 gram) Diphenoxylate Hydrochloride 2.4 mg in each tablet Commercial quantity Bail dismissed Nitrazepam 9.8 mg in each tablet

09. CRM-M 18406/2 Ram deep Singh Vs.

State of Punjab 1200 tablets Anxinil (14.4grms) 720 capsules of spasmo Proxyvon (464.4grams) Alprzolam 0.48 mg in each tablet Commercial quantity Bail dismissed

10. CRM-M 19401/ Jaswinder singh Vs.

State of Punjab 500 grms of mixture of Alprazolam Oxytocin Injections 0.27% Alprazolam (1.35 grms) 5.01 u/ml Oxytocin Commercial quantity Bail dismissed

11. CRM-M 12624/ Mohan Singh Vs.

State of Punjab Various drug with Diphenoxylate with permissible limit of 2.5 mg in each tablet without any bill or document Diphenoxylate 2.4 mg in each tablet Commercial quantity Bail dismissed

12. CRM-M 7097/ Bhushan Kumar alias Bhusha Vs.

State of Punjab 30000 tablets of Lomotil (186 grms) Diphenoxylate 2.4 mg in each tablet Commercial quantity Bail dismissed

13. CRM-M 12299/ Rajinder Singh Vs.

State of Punjab Various drug without bill/ document Diphenoxylate Commercial quantity Bail dismissed 13.He would also rely upon an unreported decision of this Court in Mohamed Ali Vs. The State rep by the Inspector of Police made in Crl.O.P(MD)No.15947 of 2016, dated 08.06.2017 and refer the following paragraphs in support of his contentions. "13.To be precise, the learned Judge has held that each tablet of Zolfresh contains 10 mg. of Zolpidem and he has multiplied it with the number of tablets and the resultant figure, viz., 184.15 gms. has been determined as the quantity seized. Since 184.15 gms.

falls between small quantity and commercial quantity, vis-a-vis Zolpidem, the learned Judge has directed the trial Court to frame a charge under Section 22(b) and not for the offence under Section 22 (c) of the NDPS Act. In other words, the learned Judge has not taken the entire weight of the tablets seized and has instead, isolated the offending psychotropic substance, viz., Zolpidem from the tablet for the purpose of determining the slot in which the weight should be fitted, in terms of the quantity notification dated 19.10.2001.

14. In the considered opinion of this Court, neither the Act nor the Notification provides for such bisection and inter-section. The chemical name of Zolpidem tartrate is gamma-aminobutyric acid and its chemical composition is given in the Notification itself, which has been extracted above. Unlike Oxygen, Hydrogen and other elements, Zolpidem is not an element to exist as a stand alone one. Zolpidem is synthetically manufactured by laboratory process. To be very precise, it is usually crystallised as Zolpidem tartrate which will be white to half white. Unlike alcohol which touches the cerebellum and makes the consumer lose his balance, Zolpidem touches certain portions of the cerebral hemisphere and is hypnotic in nature. A restless and sleepless person would go to sleep with a right dosage of the tablet containing Zolpidem.

Naturally, an excess of it would make the person rest in peace permanently. It is seldom traded in its pristine crystalline form and instead, it reaches the consumer in tablet form. The manufacturer of tablets containing Zolpidem tartrate should have to obtain a licence under the Drugs and Cosmetics Act and this drug, being a Schedule "H" drug, can be dispensed only on the prescription of a qualified medical practitioner.

1.

Lactose 2.

Cellulose 3.

Sodium starch (Potato starch) 4.

Silcon-di-oxide 5.

Talc 6.

Magnesium Stearate 7.

Hypromellose 8.

Polyethylene Glycol 9.

Titanium-di-oxide 10.

Ferric oxide (Red) All these inactive ingredients are required to hold that active ingredient, viz., Zolpidem tartrate.

15. In M.A. Jinnah's case, it was easy for the learned Judge to apply the multiplication theory, because, the drug was manufactured by the Abott Company and under the Drugs and Cosmetics Act, it was incumbent on the manufacturer to disclose the dosage strength in the

strip, on account of which, 10 mg. was found to be printed on the strip. 10 mg. printed on the strip is not the weight of the tablet. The weight of one tablet will approximately be 0.23 gms. 10 mg. would refer to the potency of the active ingredient, viz., Zolpidem and the medical practitioner would prescribe the dosage based on the age, weight and intensity of the ailment of the patient. What would happen if an illicit laboratory manufactures the same tablets in huge quantities without complying with any of the requirements stipulated under the Drugs and Cosmetics Act and distributes the same in ordinary plastic covers to the vulnerable section of the society through middlemen and conduits?

Most of the illicit units that manufacture narcotic and psychotropic substances are located in the porous Indo-Pakistan border and these drugs seep into the border States and play great havoc on the social fabric of the society. With this in mind, if one reads the definition of the expressions "psychotropic substances" and "preparation" as defined under the NDPS Act, which read as under, there would be no room for any doubt. 2(xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule."

2(xx) "preparation", in relation to a narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances; The definition of the word "preparation" gets telescoped and subsumed into the definition of the expression "psychotropic substance". In other words, a preparation containing a psychotropic substance that is listed in the Schedule to the NDPS Act is per se a psychotropic substance. A tablet containing Zolpidem as active ingredient, together with inactive ingredients listed above, should be construed as a wholesome unit of a psychotropic substance. The inactive ingredients are required as binding agents to hold Zolpidem, the active ingredient, for the purpose of consumption in tablet form.

That is why, the Parliament, in its wisdom, while defining the expression "psychotropic substance", had included "preparation" also within the ambit of the definition. The NDPS Act was intended to break the backbone of not only illicit manufacturers of such drugs but also illicit distributors of drugs that are manufactured licitly as in M.A. Jinna's case. The isolation theory in which the weight of Zolpidem in each tablet is taken in isolation and multiplied with the number of tablets to arrive at the total quantity in weight of the drug for the purpose of fitting it as small quantity or commercial quantity, will come as a great boon to illicit manufacturers and distributors to escape the legal dragnet.

If the isolation theory is to be adopted, then, the investigating agencies can successfully prosecute only those who are illicitly distributing such drugs that are manufactured legally.

16. The following statement in paragraph 21 of M.A. Jinna's case may not reflect the correct legal position. "21. This Court would begin by informing that the opening words 'any mixture or' in Item No.239 of the table are redundant since Section 2 (xxiii) of the Act which defines 'preparation' places preparation in two distinct slots."

17. In the considered opinion of this Court, the expression "any mixture or" in Sl. No. 239 of the Notification is not redundant, because, Sl. No. 239 is a residuary clause to deal with a situation where a particular substance contains 2 or more species of Narcotic drug/Psychotropic substance. The catch expression in Sl.No. 239 is "of any of the above drugs".

18. Let us take an example where the police seize a substance weighing 150 gms. from an accused. On testing the substance, it was found to contain Alprazolam [Sl. No. 30 in the Schedule to the NDPS Act and Sl. No. 178 in the quantity notification dated 19.10.2001] and Barbital [Sl. No. 32 in the Schedule to the NDPS Act and Sl. No. 181 in the quantity notification dated 19.10.2001]. The small quantity and commercial quantity for Alprazolam is 5 gms. and 100 gms. respectively. Similarly, the small quantity and commercial quantity fixed by the notification dated 19.10.2001 for Barbital is 20 gms. and 500 gms. respectively. The question is, under which Sl. No. in the quantity notification, should the seized drug be fitted in, whether as Barbital or Alprazolam, for the purpose of framing charge against the accused.

19. Only to resolve such disputes, Sl.No. 239 has been included as a residuary item and applying the formula enunciated by the asterisk marks given in the footnote of the Notification, the small quantity of the seized substance will be 5 gms. and the commercial quantity of it will be 100 gms. Since the accused was in possession of 150 gms. of the substance, he will have to be prosecuted under Section 22(c) of the NDPS Act for possession of commercial quantity. He cannot be heard to say that the commercial quantity for Barbital which is 500 gms., should be reckoned and that since he was in possession of only 150 gms., he should be prosecuted only under Section 22(b) of the NDPS Act. The example discussed in the preceding paragraph, viz., paragraph no.18, can be better explained by way of the following tabular column.

Sl. No.

Drug Name Small quantity Commercial quantity Alprazolam 5 gms.

100 gms.

Barbital 20 gms.

500 gms.

Seized drug Alprazolam & Barbital 5 gms 100 gms.

20. At the risk of repetition, Sl. No. 239 of the Notification dated 19.10.2001 deals with a substance containing 2 or more species of narcotic drugs/psychotropic substances and will not apply to the presence of a single species of a narcotic drug/psychotropic substance.

21. In E.Michael Raj v. Intelligence Officer, Narcotic Control Bureau [(2008) 2 SCC (Cri.) 558], the isolation theory was adopted in respect of heroin and only to get over that, the notification dated 19.10.2001 was amended on 18.11.2009 with the inclusion of footnote no.4 to the notification. The constitutional validity of this amendment has been upheld by a Division Bench of this Court in Sadiq Basha v. Union of India in W.P.No.28702 of 2015 dated 01.10.2015 and John Paul v. Union of India in W.P.No.28715 of 2015 dated 01.10.2015. The said amendment also came up for consideration before a Division Bench of this Court in M.Veludurain v. State, rep. by the Superintendent of Customs, Special Narcotic Cell, Nagercoil [(2012) 1 L.W.(Cri.) 70], wherein, the Division Bench held that post 18.11.2009, purity test need not be performed.

In para 23 of M.A.Jinna's case, the learned Judge has stated that he finds support from the reasoning in the decision of the Apex Court in Mohd. Sahabuddin and another vs. State of Assam [(2012) 13 SCC 491], whereas, on a closer scrutiny of the said judgment, it is seen that it is opposed to the isolation theory propounded in M.A.Jinna's case, as could be seen from para nos. 10, 11 and 12 of Mohd. Sahabuddin's case which are as under: "10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and the each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate.

When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants. 11.

The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less than 10 mg of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14-11-1985 and 29-1-1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg of codeine, per dose

unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means "contributing to cure of disease". In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent.

12.

As pointed out by us earlier, since the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule H drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as mentioned in the Notifications dated 1411-1985 and 29-1-1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the NDPS Act calling for appropriate punishment to be inflicted upon the appellants.

Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the abovereferred to notifications, the application of the exemption provided under the said notifications in order to consider the appellants' application for bail by the courts below does not arise." From a reading of the above judgment, it is beyond cavil that the Supreme Court has rejected this isolation theory and has proceeded to take into consideration the entire quantity of the seized drug".

14.Mr.Arul Vadivel @ Sekar, the learned Special Public Prosecutor appearing for the respondent further submitted that the issue regarding the tablet is commercial quantity or not has already been decided by this Court and cancelled bail in Crl.O.P. (MD)No.23400 of 2016 and the bail applications relating to the other accused were also dismissed by this Court. Admittedly, the offence is grave in nature. This drug is called "Rape Drug" and prohibited in all countries. Since the earlier bail granted to the petitioner on health ground has been cancelled by this Court, the only remedy open to the petitioner is he has to go before the Supreme Court whether the cancellation of the bail is correct or not. The second bail application is not maintainable. Therefore, the petitioner is not entitled to bail on medical grounds.

15. The learned Special Public Prosecutor appearing for the State submitted that all those medical facilities available in the Central Prison itself and therefore, the petitioner can

very well avail all such medical facilities and get proper treatment.

16.In view of the above, since this Court has already decided the issue involved in this petition, the question of considering the very same issue once again does not arise. On perusal of the Medical Certificate, dated 12.02.2017 given by Dr.L.Vijayalakshmi, Assistant Civil Surgeon, Government General Hospital, Chennai, it is seen that the petitioner was undergoing treatment from 20.09.2017 to till date and his health condition is very bad and was advised to take complete rest. Further, the petitioner was also enlarged on interim bail on medical grounds and got proper treatment in the Private Hospital and therefore, there is no problem in his health condition, if at all, he needs treatment, he can avail medical facilities from the Government Hospital.

17.Considering the facts and circumstances of the case and considering the gravity of the offence committed by the petitioner, I am not inclined to grant bail to the petitioner. Accordingly, this petition is dismissed. The petitioner is directed to surrender before the trial Court within a period of one week from the date of receipt of a copy of this order. 18.At this juncture, the learned counsel on record for the petitioner submitted that since the bail application is dismissed, a direction may be issued to the Central Prison Authorities to give a proper medical treatment to the petitioner.

19.In view of the said submission, after the surrender of the petitioner, the Central Prison Authorities shall refer the matter to the medical board for the proper medical treatment to be provided to the petitioner.

sd/- 20/12/2017 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.

TO 1 THE ADDITIONAL DISTRICT AND SESSIONS JUDGE/PRESIDING OFFICER, SPECIAL COURT FOR EC & NDPS ACT CASES, PUDUKKOTTAI 2 THE SUPERINTENDENT CENTRAL PRISON, TRICHY

3 THE SUPERINTENDENT OF CUSTOMS CENTRAL INTELLIGENCE UNIT, O/O. THE COMMISSIONER OF CUSTOMS,TRICHY 4 THE SPECIAL PUBLIC PROSECUTOR FOR CUSTOMS MADURAI BENCH OF MADRAS HIGH COURT, MADURAI +1. CC to M/S.VEERA ASSOCIATES Advocate SR.No.36746 +1cc to MR.C.ARUL VADIVEL @ SEKAR, Advocate in SR.No. 36594 RMI GJM/CM/SAR-4-27.12.2017-12P-7C

ORDER

IN CRL OP(MD) No.23400 of 2016 Date :20/12/2017