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State of Punjab Vs. Rakesh Kumar [03/12/18]

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State of Punjab Vs. Rakesh Kumar

[Criminal Appeal No. 1512 of 2018 arising out of SLP (CRL) NO. 4762 of 2018]

[Criminal Appeal No. 1514 of 2018 arising out of SLP (CRL) No.4816 of 2018]

[Criminal Appeal No. 1515 of 2018 arising out of SLP (CRL) No.4817 of 2018]

[Criminal Appeal No. 1517 of 2018 arising out of SLP (CRL) No.4869 of 2018]

[Criminal Appeal No. 1516 of 2018 arising out of SLP (CRL) No.4818 of 2018]

[Criminal Appeal No. 1513 of 2018 arising out of SLP (CRL) No.4796 of 2018]

[Criminal Appeal No. 1518 of 2018 arising out of SLP (CRL) No.4881 of 2018]

[Criminal Appeal No. 1521 of 2018 arising out of SLP (CRL) No.5032 of 2018]

[Criminal Appeal No. 1530 of 2018 arising out of SLP (CRL) No.5897 of 2018]

[Criminal Appeal No. 1520 of 2018 arising out of SLP (CRL) No.4968 of 2018]

[Criminal Appeal No. 1526 of 2018 arising out of SLP (CRL) No.5893 of 2018]

[Criminal Appeal No. 1525 of 2018 arising out of SLP (CRL) No.5892 of 2018]

[Criminal Appeal No. 1519 of 2018 arising out of SLP (CRL) No.4953 of 2018]

[Criminal Appeal No. 1528 of 2018 arising out of SLP (CRL) No.5895 of 2018]

[Criminal Appeal No. 1523 of 2018 arising out of SLP (CRL) No.5886 of 2018]

[Criminal Appeal No. 1527 of 2018 arising out of SLP (CRL) No.5894 of 2018]

[Criminal Appeal No. 1524 of 2018 arising out of SLP (CRL) No.5891 of 2018]

[Criminal Appeal No. 1529 of 2018 arising out of SLP (CRL) No.5896 of 2018]

[Criminal Appeal No. 1522 of 2018 arising out of SLP (CRL) No.5877 of 2018]

[Criminal Appeal No. 1533 of 2018 arising out of SLP (CRL) No.7223 of 2018]

[Criminal Appeal No. 1532 of 2018 arising out of SLP (CRL) No.7222 of 2018]

[Criminal Appeal No. 1536 of 2018 arising out of SLP (CRL) No.7228 of 2018]

[Criminal Appeal No. 1531 of 2018 arising out of SLP (CRL) No.7221 of 2018]

[Criminal Appeal No. 1534 of 2018 arising out of SLP (CRL) No.7225 of 2018]

[Criminal Appeal No. 1535 of 2018 arising out of SLP (CRL) No.7227 of 2018]

N.V. RAMANA, J.

1. Leave granted.

2. The present appeals are filed by the State having been aggrieved by the common judgment and order dated 29th January, 2018 passed by the High Court of Punjab and Haryana, allowing the applications for suspension of sentence, preferred by the accused respondents herein under Section 389 Cr.P.C. and directing to release them on bail, while the Appeals are pending in the High Court.

3. In order to appreciate the merits of these appeals, brief facts which have emerged from the case of the prosecution need to be noted at the outset. In all these appeals, the accused respondents were apprehended with” manufactured drugs” and convicted by the Trial Court for offences committed under Section 21 or Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “N.D.P.S Act”). The alleged offences and conviction recorded by the Trial Court against the respondents are listed below:

S.NO.

CASE NO.

NAME of ACCUSED

RECOVERY

CONVICTION

JUDGMENT BY DATE

1.

CRA-S-840-SB-2015

Rakesh Kumar

3500 tablets of Microlit containing Diphenoxylate salt

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Special Judge, Sri Muktsar Sahib – 18.11.2014

2.

CRA-S-227-SB-2015

Anwar Khan @ Soni

3.900 kgs of intoxicating powder containing Dexiropropoxyphen e salt

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Sangrur – 17.11.2014

3.

CRA-S-3148-SB-2015

Monnu

81.76 gms salt Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Special Judge, Ferozepur – 04.06.2015

4.

CRA-S-4134-SB-2015

Dharmu

Diphenoxylate powder in commercial quantity

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Ludhiana – 25.05.2015

5.

CRA-S-5246-SB-2015

Gurwinder Singh

70 gms containing Diphenoxylate salt

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Ludhiana – 10.11.2015

6.

CRA-S-71-SB-2016

Mohd. Akhtar @ Soni

19110 mls of intoxicating liquid 10 capsules of Parvon Spas, 10 tablets of Euphoria

U/s 22 (a) 2(c) of NDPS Act – 1 year RI Rs.5000/fine and 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Sangrur – 09.12.2015

7.

CRA-S-323-SB-2015

Munish Kumar

15 Vials of Rexcof

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Bathinda – 09.01.2015

8.

CRA-S-200-SB-2017

Gudawar Ram @ Gabbu

60 gms intoxicating powder containing Diphenoxylate salt

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, SBS Nagar – 09.12.2016

9.

CRA-S-766-SB-2017

Baljinder Singh @ Banty

7500 mls of Corex syrup containing Codeine phosphate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Sangrur – 20.12.2016

10.

CRA-S-1413-SB-2017

Sukhraj Kaur @ Raj

120 bottles of Rexcof containing Codeine phosphate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Sangrur – 08.03.2017

11.

CRA-S-4055-SB-2016

Gurpreet Singh @ Gopi

25 gms Heroin 250 gms intoxicating powder containing Alprazolam

U/s 21 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Amritsar – 06.09.2016

12.

CRA-S-2933-SB-2016

Salwinder Singh @ Shinda

320 gms intoxicating powder containing Diphenoxylate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Tarn Taran – 09.08.2016

13.

CRA-S-985-SB-2017

Karamjit Singh @ Karma

10 Vials of Rexcof containing Codeine Phosphate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Faridkot – 04.01.2017

14.

CRA-S-723-SB-2016

Mandeep Singh @ Mani

300 gms intoxicating powder containing Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Addl. Sessions Judge, Amritsar – 23.12.2015

15.

CRA-S-1531-SB-2016

Jagmohan Singh @ Mithu

100 gms intoxicating powder containing Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Amritsar – 10.03.2016

16.

CRA-S-2398-SB-2017

Nachhatar Singh @ Sonu

60 gms intoxicating powder containing Diphenoxylate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Tarn Taran- 16.05.2017

17.

CRA-S-1972-SB-2017

Gaurav Bajaj (the other appellant Manpreet Singh)

50 bottles of Rexcof syrup 250 tablets of Carisona from Gaurav Bajaj 45 bottles of Rexcof syrup 200 tablets of Carisona from Manpreet Singh

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Fazilka- 17.03.2017

18.

CRA-S-3921-SB-2013

Gurpreet Singh

19 vials of Rexcof, 1200 tablets of Pinotil and 450 tablets of Alprazolam

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Bathinda – 24.10.2013

19.

CRA-S-1529-SB-2017

Jaspal Singh

12 vials of Rexcof containing codeine Phosphate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Sangrur – 07.03.2017

20.

CRA-S-750-SB-2014

Sanjiv Kumar Paramjit Singh @ Pamma

1300 tablets weighing 101, 400 gms from Sanjiv Kumar; 400 tablets weighing 31.200 gms from Paramjit Singh @ Pamma

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special CourtIII, Ferozepur – 27.01.2014

21.

CRA-S-4894-SB-2015

Akash Kumar

3500 mls containing Codeine Phosphate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Sangrur – 16.10.2015

22.

CRA-S-2574-SB-2017

Satnam Singh

20 vials of Rexcof containing Dextropropoxyphene

U/s 22of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Faridkot – 06.07.2017

23.

CRA-S-1616-SB-2017

Amit Kumar Mehta

2000 tablets containing Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Judge, Special Court, Patiala – 01.03.2017

24.

CRA-S-185-SB-2017

Gurjant Singh @ Janta

60 gms intoxicating powder containing Diphenoxylate

U/s 22 of NDPS Act – 10 years RI Rs.1.00 lac fine.

Addl. Sessions Judge, Tarn Taran – 20.10.2016

25.

CRM-M-23054-2017

Gurpreet Singh @ Tuli

100 tablets marka Alprazolam in 5 strips, 12 injections Buprenorphine 2 ml, 2 bottles of injections Avil 10 ml 116 gms intoxicant powder

U/s 22/61/85 of NDPS Act

Judge, Special Court, Jalandhar

4. Aggrieved by the Judgment and conviction by the respective Trial Courts, the accused respondents approached the High Court through various appeals. The accused respondents, during the pendency of the appeals, preferred an application seeking suspension of sentence. Since a common question of law was involved in the above appeals, the High Court heard the matters 8 together and passed a common order dated 29.01.2018, allowing the applications for suspension of sentence preferred by the accused respondents. The High Court observed that manufactured drugs, be it containing narcotic drugs or psychotropic substances, if manufactured by a manufacturer, must be tried, if violation is there, under the Drugs and Cosmetics Act and not under the NDPS Act, except those in loose form by way of powder, liquid etc. Dissatisfied by the above order dated 29.01.2018, the State has preferred the present appeals.

5. The counsel on behalf of the appellant State, while criticizing the impugned order passed by the High Court, drew our attention to the relevant provisions of the N.D.P.S Act and Drugs and Cosmetics Act, 1940, and submitted that, the N.D.P.S Act, itself does not bar the application of the Drugs and Cosmetics Act, 1940. Further, the counsel also argued that, the impugned judgment is in gross violation of the decision rendered in Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal) 953, by the Division Bench of the Punjab and Haryana High Court. The counsel also relied upon the decision rendered by 9 this Court in Union of India v. Sanjeev V. Deshpande (2014) 13 SCC 1, wherein it was clearly held that dealing in narcotic drugs and psychotropic substances is permissible only if it is for medical or scientific purposes. But even the usage for medical and scientific purposes is not restriction free, as it is subject to rules under the N.D.P.S Act.

6. On the contrary, the counsel on behalf of the accused respondents has supported the reasoning of the High Court while stating that it is very farfetched to presume that, any person who is apprehended with bulk quantity of manufactured drug, without having a license for the same, has committed an offence which is liable to be prosecuted under the N.D.P.S Act. The counsel further submitted that, the High Court was correct to conclude that, it can be considered as a violation of the provisions of the Drugs and Cosmetics Act, 1940. Therefore, there was no error in granting the relief of suspension of sentence, considering that the appeals are not going to be adjudicated in the near future.

7. Heard the learned counsel for both the parties.

8. At the outset it is essential to note the objectives of the two 10 legislations before us, i.e., the Drugs and Cosmetics Act, 1940 and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was enacted to specifically prevent substandard drugs and to maintain high standards of medical treatment. (See Chimanlal Jagjivandas Sheth v. State of Maharashtra AIR 1963 SC 665) The Drugs and Cosmetics Act,1940 was mainly intended to curtail the menace of adulteration of drugs and also of production, manufacture, distribution and sale of spurious and substandard drugs. On the other hand, the N.D.P.S Act is a special law enacted by the Parliament with an object to control and regulate the operations relating to narcotic drugs and psychotropic substances. After analyzing the objectives of both the Acts, we can safely conclude that while the Drugs and Cosmetics Act deals with drugs which are intended to be used for therapeutic or medicinal usage, on the other hand the N.D.P.S Act intends to curb and penalize the usage of drugs which are usedfor intoxication or for getting a stimulant effect.

9. At this juncture, it is also pertinent to note the relevant provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is the prohibitory clause whose violation would lead to penal consequence:

Section 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 interState, export interState, import into India, export from India or transship 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 there under and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization: Provided that, and subject to the other provisions of this Act and the rules made there under, 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 interState 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.

10. Further, Section 21 provides for punishment for contraventions in 12 relation to manufactured drugs and preparations and Section 22 provides for punishment for contraventions in relation to psychotropic substances. Both the above provisions provide for the imposition of rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and the imposition of a fine which shall not be less than one lakh rupees but which may be extended to two lakh rupees, if the recovered substance amounts to commercial quantity. However, the proviso appended thereto empowers the Court, with a discretionary power to impose a fine exceeding two lakh rupees for reasons to be recorded in the judgment.

11. In the present case, the accused respondents were found in bulk possession of manufactured drugs without any valid authorization. The counsel on behalf of the appellant State has extensively stressed that the actions of the accused Respondents amounts to clear violation of Section 8 of the N.D.P.S Act as it clearly prohibits possession of narcotic substances except for medicinal or scientific purposes. In furtherance of the same, the counsel on behalf of the appellant State has put emphasis on the judgment rendered by this court in the case of Union of India vs. Sanjeev V. Deshpande (supra), wherein it was held that:

“25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created Under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.

26. The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances…”

(emphasis supplied)

12. In the present appeals before us, the trial courts after analyzing the evidence placed before them, held the accused Respondents guilty beyond reasonable doubt and convicted them for offences committed under Section 21 and Section 22 of the N.D.P.S Act.

13. The counsels for the accused respondents have strongly supported the judgment of the High Court wherein it was held that, since the present matters deal with “manufactured drugs” the present respondents should be tried for the violation of provisions of Drugs and Cosmetics Act, 1940.

14. However, we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the N.D.P.S Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of N.D.P.S. Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the N.D.P.S Act are not in derogation of the Drugs and Cosmetics Act, 1940. This Court in the case of Union of India vs. Sanjeev V. Deshpande (supra), has held that,

“35. …essentially the Drugs Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act.”

(emphasis supplied)

15. The aforesaid decision further clarifies that, the N.D.P.S Act, should not be read in exclusion to Drugs and Cosmetics Act, 1940. Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the accused Respondents amounted to a primafacie violation of Section 8 of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S Act.

16. In light of above observations, we find that decision rendered by the High Court holding that the accused respondents must be tried under the Drugs and Cosmetics Act, 1940 instead of the N.D.P.S Act, as they were found in possession of the “manufactured drugs”, does not hold good in law. Further, in the present case, the accused respondents had approached the High Court seeking suspension of sentence. However, in granting the aforesaid relief, the High Court erroneously made observations on the merits of the case while the appeals were still pending before it.

17. Considering the facts and circumstances of the present case and the gravity of offence alleged against the accused respondents, the order of the High Court directing suspension of sentence and grant of bail is clearly unsustainable in law and the same is liable to be set aside.

18. Accordingly the impugned order passed by the High Court is hereby set aside and the concerned authorities are directed to take the accused respondents herein into custody forthwith.

19. Lastly, the counsels for respondents in Appeals arising out of SLP (CRL) No.4816/2018 and SLP (CRL) No.4817/2018 have specifically pleaded that the respondents have already undergone a considerable period under incarceration. In light of the same, we request the High Court to expedite the hearings and dispose of the appeals accordingly. It is needless to observe that the observations made during the course of this order are only for deciding these appeals.

20. The appeals stand allowed in aforesaid terms. As a sequel pending applications, if any shall also stand disposed of.

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar)

……………………………..J. (M.R. Shah)

NEW DELHI,

DECEMBER 03, 2018

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