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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      1602          OF     2012   [@ SLP (CRL) NO. 5503 OF 2012]

Md. Sahabuddin & Anr.     …Appellants

VERSUS

State of Assam                  …Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

2. This appeal is directed against the common order passed  

by the Gauhati High Court in Bail Application  

Nos.885/2012 and 886/2012. The allegations against the  

appellants concerned, in Bail Application No.885/2012,  

were that on 16.2.2012 at about 8.30 p.m., based on a  

secret information, the police intercepted a truck bearing  

registration No.HR-61-A6641 at Chgolia, Boxirhat, on the  

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National Highway 31 and the vehicle along with  

appellants was taken to the Golakganj Police Station and  

that due to lack of proper light facility, the search could  

not be conducted and, therefore, the vehicle and the  

appellants were kept in the police station on that night.  

On the next day i.e. on 17.2.2012 when a search was  

effected in the presence of the Deputy Superintendent of  

Police (HQ), Dhubri, Circle Inspector of Golakganj and  

local witnesses, it revealed that 347 cartons, each carton  

containing 100 bottles of 100 ml. Phensedyl cough syrup  

and 102 cartons, each carton containing 100 bottles of  

100 ml. Recodex cough syrup were found concealed along  

with household articles. For transporting such a huge  

quantity of pharmaceutical products, the driver of the  

vehicle could not produce any valid documents. Further  

the chemical analysis of the contents of the cough syrup  

disclosed that it contained codeine phosphate beyond the  

prescribed quantity and, therefore, the articles were  

seized. The appellants were produced before the C.J.M.,  

Dhubri on 18.2.2012 who remanded them to judicial  

custody.  

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3. As we are concerned with the Bail Application No.885/12,  

we do not deal with the details of seizure and arrest  

effected on accused concerned in Bail Application  

No.886/12.

4. The appellants moved the Court of Sessions Judge,  

Dhubri for grant of bail and learned Sessions Judge, by  

order dated 30.3.2012 rejected the bail application.  

Thereafter, the appellants moved the High Court, who by  

the order impugned in this appeal having declined to  

grant bail; the present appeal has been filed.

5. The learned counsel for the appellants, apart from  

making his submissions also filed written submissions on  

behalf of the appellants. The learned counsel submitted  

that appellants were only transporting cough syrup, that  

the content of codeine phosphate was less than 10 mg.  

(per dosage), namely, 5 ml. and, therefore, by virtue of  

Central Government Notifications bearing S.O.826(E)  

dated 14.11.1985 and G.S.R.40(E) published on  

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29.1.1993, no offence was made out under the provisions  

of the N.D.P.S. Act and, therefore, the rejection of the bail  

application by the learned Sessions Judge as well as by  

the High Court was not justified. The learned counsel  

placed reliance upon certain decisions of the High Court  

of Punjab and Haryana in support of his submissions.  

Reliance was also placed upon Rules 65, 97, 61(1) and  

61(2) of the Drugs & Cosmetics Rules along with Section  

27 of the Drugs & Cosmetics Act in support of his  

submissions. It was also contended that the appellants  

have spent more than 180 days in custody since  

17/18.2.2012 and were entitled for bail under Section  

36A(4) of N.D.P.S. Act read with proviso (a) to Section  

167(2) of Cr.P.C.

6. The bail application was opposed on behalf of the State  

contending that the seized materials, which admittedly  

contained codeine phosphate of prohibited quantity, were  

found concealed with household articles in the vehicle,  

that it was not the case of the appellants that the seized  

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pharmaceutical products were meant for supply to any  

dealer or shop to be sold by way of medicine under the  

prescription of approved medical practitioner and having  

regard to total quantity content of the prohibited  

substance, the plea of the appellants that provisions of  

the N.D.P.S. Act are not attracted, cannot be accepted.  

According to learned counsel for the State, the  

submission based on the number of days spent by the  

appellants in the prison was not raised before the High  

Court and, therefore, the same cannot be a ground for  

consideration in this appeal.

7. Having heard respective counsels and having perused the  

order of the Sessions Court as well as the High Court, at  

the very outset, we feel that to appreciate the gravity of  

the offence alleged against the appellants, it is worthwhile  

to refer to the nature of materials seized, the total  

quantity and the extent of codeine phosphate contained  

therein which has been noted by the High Court in  

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paragraph 34 of its order which can be usefully extracted  

hereunder:     

“B.A. No.885/2012 Recodex 10200*182.73 milligrams =1863 grams  =1.863 kilograms Phensedyl 34700*183.15 milligrams = 6355 grams  =6.355 kilograms Total = 8.218 kilograms i.e. Total 8 kilograms 219 grams”

8. The contentions of the appellants were fourfold. In the  

first place, it was contended that the cough syrup  

Phensedyl and Recodex are pharmaceutical products  

covered under the provisions of the Drugs & Cosmetics  

Act, that the Rules prescribe the measure of dosage as 5  

ml. and that under Rules 65 and 97 of the Drugs &  

Cosmetics Rules, it is lawfully permissible to sell such  

cough syrups in the open market, which can also be  

transported, kept in stock and sold in the pharmaceutical  

shops as a prescribed drug under Schedule ‘H’  at Serial  

No.132. According to the appellants, such prescribed  

drugs under the Rules can contain codeine to the extent  

permissible. While referring to Rule 97, it was contended  

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that Schedule H Drugs containing permissible extent of  

narcotic substance could be sold in retail on the  

prescription of Registered Medical Practitioner. The  

learned counsel, therefore, contended that each of the  

100 ml. bottle, seized from the appellants, satisfy the  

requirement prescribed under the above referred to two  

Rules 65 and 97 and in the circumstances there was no  

question of proceeding against the appellants under the  

N.D.P.S. Act.

9. By referring to Rules 61(1) and 61(2) of the Drugs &  

Cosmetics Rules, it was contended that the prescribed  

licence which is required for sale, stock, exhibit, offer for  

sale or distribution as a mandatory requirement under  

Section 27 of the Drugs & Cosmetics Act providing for  

imposition of penalty would be applicable only to  

manufacturers or those who sell, stock, exhibit or offer  

for sale or distribution of drugs and that a transporter, in  

particular, the driver and a khalasi was under no  

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obligation to hold a licence under the Drugs & Cosmetics  

Act.

10. At the very outset, the abovesaid submission of the  

learned counsel is liable to be rejected, inasmuch as, the  

conduct of the appellants in having transported huge  

quantity of 347 cartons containing 100 bottles in each  

carton of 100 ml. Phensedyl cough syrup and 102  

cartons, each carton containing 100 bottles of 100 ml.  

Recodex cough syrup without valid documents for such  

transportation cannot be heard to state that he was not  

expected to fulfill any of the statutory requirements either  

under the provisions of Drugs & Cosmetics Act or under  

the provisions of the N.D.P.S. Act.

11. 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  

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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.  

12. 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,  

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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.  

13. 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 14.11.1985 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  

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human consumption, the same would certainly fall within  

the penal provisions of the N.D.P.S. 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  

above referred 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.  

14. As far as the grievance raised on the ground that the  

appellants were illegally detained beyond 24 hours by the  

police is concerned, the conclusion of the High Court  

having been based on the satisfaction reached by it, we  

do not find any scope to interfere with the same.  

15. As far as the submission now made for the first time that  

the appellants had been in jail for more than the  

minimum required period is concerned, since neither the  

Sessions Judge nor the High Court had the opportunity to  

examine the said claim made by the appellants, we do not  

propose to deal with the same in this appeal.

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16. When we refer to the decisions relied upon by the learned  

counsel for the appellants, we find that none of the facts  

relating to those decisions are parallel to the facts of the  

present case. Those are all cases which were related to  

the persons who had valid licences and in the course of  

their regular business transaction when they were dealing  

with the pharmaceutical products which contained the  

prescribed permitted content of narcotic substance and  

when they were proceeded against for violations, the relief  

came to be granted in their case. We do not, therefore,  

find any scope to apply any of the ratios of those  

decisions to the facts of this case.

17. We do not find any merit in this appeal. The appeal fails  

and the same is dismissed. We, however, make it clear  

that whatever stated in this order is only for the purpose  

of dealing with the appellants’ application for grant of bail  

and we have not stated anything on the merits of the  

allegations levelled against the appellants.      

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…..……….…………………………...J.                       [T.S. Thakur]

  ……………. ………………………………J.

           [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; October 05, 2012

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