Citation Codes

Equivalent Citations

citation codes

Case Number

Crl. Rev. P. 962/2017, Crl.M.A. No. 21365/2017, Crl.M.A. No. 703/2018, Bail Appln. 891/2017, Crl. Rev. P. 962/2017, Crl.M.A. No. 21365/2017, Crl.M.A. No. 703/2018 and Bail Appln. 891/2017

Disposition

dismissed

Attorney(S)

Mr. Rakesh K. Sharma and Mr. Deepak Chauhan, Advocates.
Mr. Anil Soni, CGSC with Ms. Priyanka, Adv. for R-1/UOI.
Mr. Pramod Bahuguna, Advocate for R-2/Customs.
Mr. Rakesh K. Sharma and Mr. Deepak Chauhan, Advocates.
Mr. Vinod Diwakar, CGSC with Mr. Sanjay Pal, Adv. for R-1/UOI.
Mr. Sanjeev Narula, Sr. Standing Counsel for Customs with Mr. Abhishek Ghai, Adv.

Judges

Indermeet Kaur, J.

Acts

Section 21(C) of the NDPS Act, 1985

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Smart Summary

High Court of Delhi — Karan Sharma v. Union of India (Order dated 02.02.2018)

Factual and Procedural Background

The petitioner is Karan Sharma. He was arrested on or about 14.09.2016 at the departure hall of Indira Gandhi International Airport while intending to depart for New York on Air India flight A1-101. On search of his checked-in baggage the petitioner was found to be in possession of 300 bottles of Phensedyl/Chlorpheniramine Maleate & Codeine Phosphate cough linctus (noted as equivalent to 18,388.50 gms in the record). A disclosure statement under Section 67 of the NDPS Act was recorded in which the petitioner stated he wanted to sell the drug in an overseas market. The trial court, by order dated 25.10.2017, returned a prima facie finding that the petitioner was guilty of offences under Section 21(C) of the NDPS Act, 1985 and Section 23(C) read with Section 28 of that Act.

Two petitions were before the High Court: Criminal Revision Petition No. 962/2017 assailing the trial court's charge/order and Bail Application No. 891/2017 seeking bail. A status report was filed by the investigating agency (CBI) in the bail application and treated as reply in the revision petition.

Legal Issues Presented

Whether the recovered quantity of the narcotic substance should be measured by (a) the concentrated/pure content of the narcotic (codeine) in the seized bottles or (b) the entire mixture/weight of the seized preparation for classification as small, intermediate or commercial quantity under the NDPS Act and Notification dated 16.07.1996 (as amended).
Whether the petitioner is entitled to bail in view of the statutory bar in Section 37 of the NDPS Act, given the finding of prima facie possession of a commercial quantity and related factual circumstances (absence of license, invoices, and the recorded disclosure).

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that the correct method is to calculate the concentrated/pure quantity of the active narcotic ingredient (codeine) in the seized bottles. Relying on the Apex Court judgment in Mohd. Sahabuddin & Anr v. State of Assam (2012 (13) SCC 491), counsel argued that the calculation based on concentrated quantity leads to a result that the seizure amounts to an intermediate quantity (not a commercial quantity), thus attracting eligibility for bail.
Counsel also relied on a Special Judge's order in NCB vs Md. Tabrez Ansari (Case No. SC 9563/2016) where a similar calculation (150 bottles) yielded a total of 30 gm of codeine phosphate, to support the contention that the present 300 bottles amount to an intermediate quantity.

Respondent's / Investigating Agency's Arguments (CBI / Union of India)

The CBI filed a status report and relied on the report of CRCL dated 27.10.2016 which opined that the entire weight of the seized liquid amounted to 18.388 kg, which is a commercial quantity under the Notification.
The respondent pointed out that the petitioner had no licence under the Drugs and Cosmetics Act, 1940, had no invoices or bills, was not a stockist and had made a disclosure indicating intention to export/sell the consignment—factors supporting the view that the statutory bar in Section 37 of the NDPS Act is attracted and bail cannot be granted.
The respondent negated the submission that Mohd. Sahabuddin (2012 (13) SCC 491) compelled calculation by concentrated content, and relied upon the subsequent amendment (Note 4 to the Notification) which, the respondent submitted, requires considering the entire mixture/solution for quantity determination.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohd. Sahabuddin & Anr v. State of Assam, 2012 (13) SCC 491	Relied upon by petitioner to support calculation based on concentrated/pure drug content (codeine) leading to a conclusion of intermediate quantity.	The Court observed that the Apex Court in Mohd. Sahabuddin reproduced a calculation by the High Court of Assam based on concentrated quantity but did not consider Note 4 of the Notification (added in 2009). The High Court noted Mohd. Sahabuddin did not decide the issue whether the concentrated content or the entire mixture must be taken into account.
NCB vs Kishan Lal, 1991 (1) SCC 705	Interprets Section 37 of the NDPS Act and emphasises the non-obstante clause which limits the power to grant bail in NDPS cases.	The Court relied on this authority to reiterate that Section 37 contains a statutory bar on grant of bail unless its twin conditions are satisfied; thus bail must be considered subject to Section 37 and its requirements. This formed part of the basis for refusing bail.
NCB vs Md. Tabrez Ansari, Case No. SC 9563/2016 (Special Judge)	Used by petitioner to illustrate a factual calculation where 150 bottles of Phensedyl were treated as amounting to 30 gm of codeine phosphate total.	The Court noted the petitioner relied on this decision for a similar calculation but observed that Note 4 to the Notification (added 2009) was not engaged in that reasoning and that CRCL's report and the Note led the Court to treat the present recovery as a commercial quantity.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, as recorded in the opinion:

The trial court had returned a prima facie finding of guilt under Sections 21(C), 23(C) read with Section 28 of the NDPS Act based on recovery of 300 bottles of cough linctus from the petitioner.
The petitioner argued, relying on Mohd. Sahabuddin and a Special Judge's order, that only the concentrated content of codeine in the bottles should be considered, yielding an intermediate quantity and thus permitting bail consideration. The petitioner emphasised calculations showing 30 gms of codeine in comparable seizures.
The Court examined the statutory and regulatory scheme. It noted that by way of S.O. 2941(E) dated 18.11.2009, Note 4 was appended to the Notification dated 16.07.1996. Note 4 states that the quantities in the Notification "shall apply to the entire mixture or any solution" and "not just its pure drug content."
The Court observed that the Mohd. Sahabuddin judgment did not consider Note 4 because that contention was not raised, and that the Apex Court in that case had merely reproduced the High Court's calculation without addressing whether concentrated-content calculation was correct.
The CRCL (Central Forensic Laboratory) report dated 27.10.2016 was placed on record, opining that the entire weight of the liquid seized was 18.388 kg—i.e., a commercial quantity under the Notification.
The Court took into account undisputed facts: the petitioner had no licence under the Drugs and Cosmetics Act, no invoice or bill, was not a stockist, and had made a disclosure indicating intention to sell/export the consignment. These facts, combined with the CRCL report and Note 4, supported treating the seizure as commercial in quantity.
The Court reiterated the operation of Section 37 of the NDPS Act, referring to NCB vs Kishan Lal, noting that Section 37 begins with a non-obstante clause and circumscribes the power to grant bail; consequently, the power to grant bail is subject to the conditions in Section 37.
Because the statutory bar in Section 37 had not been satisfied and the seizure was prima facie of a commercial quantity according to the Court's application of Note 4 and CRCL's findings, the petitioner could not be considered for bail at that stage.

The Court also recorded that the question whether the entire mixture or only the concentrated content is to be considered has been referred to a Full Bench of the Apex Court and that this referred question remains to be answered.

Holding and Implications

Core Ruling: Both the criminal revision petition (No. 962/2017) and the bail application (No. 891/2017) are dismissed.

Implications and direct effects:

On the facts found prima facie by the trial court and as accepted for the present stage by this Court (including CRCL's report), the seized consignment is treated as a commercial quantity. As a result the statutory bar under Section 37 of the NDPS Act operates and the petitioner is not entitled to bail at this stage.
The petition challenging the trial court's charge/order is dismissed as without merit.
The Court did not resolve the larger legal question finally as to whether quantity determination must be by concentrated content or by entire mixture; it recorded that this question has been referred to a Full Bench of the Supreme Court and remains unanswered. Therefore, no new, binding legal precedent on that specific issue was laid down by this order.

Order delivered by: Hon'ble Ms. Justice Indermeet Kaur (dated 02.02.2018).

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Karan Sharma Petitioner v. Union Of India & Anr. S

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 29.01.2018 Judgment delivered on: 02.02.2018 + CRL.REV.P. 962/2017, Crl.M.A.No.21365/2017, Crl.M.A.No.703/2018

KARAN SHARMA ..... Petitioner

Through Mr.Rakesh K. Sharma and Mr.Deepak Chauhan, Advocates.

versus

UNION OF INDIA & ANR ..... Respondents

Through Mr.Anil Soni, CGSC with

Ms.Priyanka, Adv. for R-1/UOI.

Mr Pramod Bahuguna, Advocate for R-2/Customs.

+ BAIL APPLN. 891/2017

KARAN SHARMA ..... Petitioner

Through: Mr.Rakesh K. Sharma and Mr.Deepak Chauhan, Advocates.

versus

UNION OF INDIA & ANR ..... Respondents

Through: Mr.Vinod Diwakar, CGSC with Mr.Sanjay Pal, Adv. for R-1/UOI. Mr.Sanjeev Narula, Sr.Standing

Counsel for Customs with Mr.

Abhishek Ghai, Adv.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. This order shall dispose of both the aforenoted petitions.

2. Criminal revision petition (No. 962/2017) has assailed the order of charge passed by the trial court dated 25.10.2017 wherein the court was of the view that the petitioner is prima facie guilty of an offence under Section 21(C) of the NDPS Act, 1985 as also under Section 23(C) read with Section 28 of the said Act. The prima facie finding returned was that on 15.09.2016 at about 3.00 pm at the departure hall of the IGI airport the petitioner who was intending to depart from Delhi to New York by Air India flight No. A1-101; on search of his checked-in baggage it was found to contain 300 bottles of "Chlorpheniramine Maleate & Codeine Phosphate Cough Linctus", "Phensedyl Cough Linctus 50 ml each" and equivalent to 18,388.50 gms; a preparation of a narcotic drug (codeine) and the petitioner intending to export the said commercial quantity of the drug was found prima facie guilty of the aforenoted offences.

3. Bail application (No. 891/2017) seeks a bail qua the petitioner. It is stated that the petitioner is in custody since the date of his arrest i.e., since 14.09.2016. The charge sheet has been filed against him and the charges

under the aforenoted sections (noted supra) have been levelled against him vide the order now impugned in the criminal revision petition No. 962/2017. Submission being that the petitioner is at best guilty of having been found to be in possession of an intermediate quantity of the aforenoted drug (codeine) and as such he is entitled for consideration of grant of bail.

4. A status report has been filed by the State/the CBI in the bail application. No separate status report / reply has been filed in the revision petition. Learned counsel for the CBI submits that this report filed by him in the bail application may be treated as his reply to the revision petition as well.

5. Learned counsel for the parties have both relied upon the dicta laid down by the Apex court in the judgment reported as 2012 (13) SCC 491, Mohd. Sahabuddin & Anr vs State of Assam. Counsel for the petitioner points out that this judgment was passed on similar facts; in this case also there was a recovery of Phensedyl cough syrup bottles from the petitioner; although bail had been refused to the petitioner for the reason that a truck load of the offending bottles were recovered from the said petitioner; (34700 being the exact quantity) but the High Court of Assam had arrived at a calculation based on the concentrated quantity of the narcotic drug which has

been reflected in para 6 of the judgment; this has been extracted by the Apex court and has not been disturbed; meaning thereby that it is the concentrated quantity of the drug which has to be taken into account for the purposes of determination as to whether the alleged illegal possession was a small quantity; intermediate quantity or a commercial quantity. Attention has been drawn to the Notification (dated 16.07.1996) of the Ministry of Finance; the Narcotic Drug Codeine appears in column 28; a small quantity is 10 gm and more than 1 kg alone would quantify as a commercial quantity. In the instant case what has allegedly been recovered from the petitioner is 300 bottles of Phensedyl cough Linctus which contains a concentrated quantity of 30 gms of codeine and thus being lesser than the commercial quantity of 1 Kg it would fall within the ambit of an intermediate quantity; the bar and embargo contained in Section 37 of the NDPS Act is not attracted. To further explain this submission, learned counsel for the petitioner has placed reliance upon a judgment delivered by a Special Judge passed in the case of the NCB vs Md. Tabrez Ansari, Case No. SC 9563/2016; submission being that in this case also where the accused was in possession of 150 bottles of 100 ml containing Phensedyl cough syrup; the court had prima facie noted that it would amount to 10 mg of codeine phosphate of every 5 ml dosage; it

would be 30gm of codeine phosphate in total. The same calculation should apply in the instance case; also keeping in view the judgment delivered by the Apex court in Mohd. Sahabuddin (supra), a calculation based on the concentrated content of the narcotic drug not having disturbed by the Apex court, this is a clear case of a prima facie recovery only of an intermediate quantity and at the cost of repetition a case for bail is made out qua the petitioner.

6. Per contra the respondent has negated this submission.

7. Record shows that the petitioner at the departure hall of the IGI airport was found to be in possession of the 300 bottles of Phensedyl cough Linctus. His disclosure statement had been recorded. He admittedly had no license to carry this drug/export it outside the country. He was also admittedly not a stockist of the drug. He had no bill or invoice for the recovered bottles. He was only a lay man. The only answer (in terms of his disclosure statement recorded under Section 67 of the NDPS Act) was that he wanted to sell this drug in the open market in the foreign country.

8. This court notes that wide an amendment by S.O 2941 (E) dated 18.11.2009 the following note has now been appended to the Notification dated 16.07.1996. This note reads herein as under:-

"4. The quantities shown in column 5 and column 6 of the Table relating to the respective drug shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drug or psychotropic substances of that particular drug in dosage from or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."

9. Thus it is the entire mixture of the particular drug and not just it is pure drug content which has now to be taken into account to determine as to whether the quantity recovered from the alleged offender falls into a small quantity or a commercial quantity. Note 4 of this notification was not considered in the judgment of Md. Sahabuddin (supra) by the Apex Court as this contention was never raised. Moreover, the Apex court had only reproduced the calculation arrived at by the High Court of Assam; it did not have an occasion to discuss as to whether this calculation (relating to the concentrated amount) was correct or incorrect. On the face of it in terms of note 4 of the aforenoted notification, the entire mixture of the drug and not its concentrated form i.e, its pure drug content which has to be taken into account for the purposes of determination as to whether what had been recovered from the petitioner was a small quantity or a commercial quantity.

10. This Court has been informed by the parties that even otherwise the question whether the entire drug or only its concentrated content has to be considered for determination as to whether the alleged recovery was a small or a commercial quantity is an issue which has been referred to the Full Bench of the Apex Court and this reference is yet to be answered.

11. The CBI had also sent the recovered drug to CRCL who had vide its report dated 27.10.2016 opined that the entire weight of the liquid comes to

18.388 kg which is a commercial quantity. The petitioner admittedly had no valid license under the Drug and Cosmetic Act, 1940. He did not have any invoice or bill showing that he had purchased this drug for any legal purpose. This is also not his case. It is also not his case that this transportation was being effected for any therapeutic purpose. The embargo of Section 37 of the NDPS Act which is couched in the negative language and which requires the satisfaction of twin requirements not having been satisfied by the petitioner, the petitioner cannot be considered for bail.

12. Section 37 of the NDPS had been considered by the Apex Court in the judgment of NCB vs Kishan Lal, 1991 (1) SCC 705. The court had noted that this Section starts with a non-obstante clause.

"6.....As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently, the power to grant bail under any of the provisions of the CrPC should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act."

13. This position has been reaffirmed by the Apex Court time and again in a catena of judgments. In this background, the revision petition is without merit. It is dismissed.

14. Since the petitioner is prima facie guilty of illegal possession of a commercial quantity of a prohibited drug, he is also not entitled to be considered for bail at this stage.

15. Bail application is also dismissed.

INDERMEET KAUR, J

FEBRUARY 02, 2018

Karan Sharma Petitioner v. Union Of India & Anr. S

High Court of Delhi — Karan Sharma v. Union of India (Order dated 02.02.2018)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's / Investigating Agency's Arguments (CBI / Union of India)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Karan Sharma Petitioner v. Union Of India & Anr. S

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