Madhya Pradesh High Court
Ankit Bung@ Maheshwari vs The State Of Madhya Pradesh on 19 December, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
M.Cr.C No.40558/2024
Ankit Bung alias Maheshwari
Vs.
State of Madhya Pradesh
Appearance:
(SHRI NARENDRA KUMAR SHARMA - ADVOCATE FOR THE
APPLICANT)
(SHRI ABHIJEET AWASTHY - DEPUTY ADVOCATE GENERAL FOR
THE RESPONDENT/STATE)
..............................................................................
Reserved on : 09.12.2024
Pronounced on : 19.12.2024
..............................................................................
ORDER
This is first bail application filed by the applicant under Section
483 of BNSS, 2023 for grant of regular bail in relation to FIR
No.109/2024, dated 01.02.2024 registered at Police Station – Maiher,
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District Maihar (M.P.) for commission of offence punishable under
Sections 8(B), 21 and 22 of NDPS Narcotic Drugs and Psychotropic
Substances Act, 1985 Act and Section 5/13 of M.P. Drug Control Act.
Applicant is in detention since 06.03.2024.
2. As per the prosecution story, on 01.02.2024 at around 12:45 A.M.
Sub Inspector Santosh Singh Uladi received a secrete information that
four persons traveling in a grey colour Brezza car bearing registration
number M.P.-17-CC-2955 are transporting onerex cough syrup having
codeine phosphate from Amdara side to Maihar side. Said information
was recorded in general diary and informer panchanam was recorded.
After following due procedure contemplated under the provision of the
Act, Sub Inspector Uladi along with independent witnesses reached
near Amla Nala, Katni road, Maihar and intercepted grey colour Brezza
car bearing registration number M.P.-17-CC-2955. The persons
traveling in the vehicle introduced themselves as Santosh Shukla,
Manish Saket, Sampat Kumar Mishra and Santosh Kushwaha. They
were informed about the information received and were made to
understand with their right to get their vehicle searched from
Magistrate or Gazetted Officer, but they agreed to give search to Sub
Inspector Santosh Singh Uladi. In search of the vehicle in the dicky of
vehicle 15 carton having 120 bottles in every carton of onerex cough
syrup having codeine phosphate, in total 1800 bottles of Batch No.
OCRS – 1013, worth Rs.3,06,000/- were seized and seizure memo was
prepared. Every bottle of 180 ml syrup was having codeine phosphate.
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Seizure memo was prepared in the presence of the witnesses.
3. In the course of the investigation Santosh Shukla and other co-
accused informed that they had purchased aforesaid onerex cough
syrup having codeine phosphate from Ankit Maheshwari alias Ankit
Bung of Bhopal (M.P.) and they are in constant touch with Ankit
Maheshwari, R/o Shahjanabad, Bhopal (M.P.). It was also informed
that after purchasing of the aforesaid cough syrup from Ankit they were
taking the same to Satna, but Police has recovered the same from them.
On the basis of disclosure by the accused persons Ankit Maheshwari’s
memorandum was also recorded. In his memo Ankit disclosed that he
runs a medical shop in the name and style of “R.S. Enterprises”, Shop
No.F-70, 1st Floor, Vardhman Plaza, Hamidia Road, Tashil Huzur,
District Bhopal (M.P.) wherein he sale in wholesale and retail the
onerex cough syrup. He had sold the aforesaid cough syrup to Santosh
Shukla and others. It was also informed by him that the Crime Branch,
Bhopal, Police has also seized 127 carton of cough syrup from him.
Along with case diary of the present case State has produced photo
copy of the charge sheet of FIR No.27/2024 of Crime Branch Bhopal
for commission of offence under Section 8/21, 22, 25 and 25-A and
Section 29 of NDPS Act and Section 5/13 of M.P Drug Control Act,
filed before Bhopal Court, showing that on 01.02.2024 at around 05:00
A.M 127 carton of onerex cough syrup having codeine phosphate in
total 15,240 bottles of onerex cough syrup. Every 5 ml having 10 ml
codeine worth Rs.25,90,800/- were seized from the rented house of
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House No.11, Sunder Balwani’s house near Water Tanki, Shahjanabad,
Bhopal (M.P.).
4. Learned counsel for the applicant has submitted that applicant
has not committed any offence. He is innocent. He has been falsely
implicated. He has been made accused on the basis of the
memorandum of the co-accused, which is neither legal nor admissible in
evidence. It is further contended that the applicant is valid licence holder of
“R.S. Enterprises” and as per license and form 21-B {(See Rule 61(1)}
has license to sell, stock or exhibit or offer for sale, or distribute by
wholesale drugs specified in Schedules C and C(1) (excluding those
specified in Schedule X).
5. Learned counsel for the applicant placing reliance on Tofan
Singh Vs. The State of Tamil Nadu, AIR 2020 SC 5592 has submitted
that on the basis of the memorandum of the co-accused no one can be
convicted and no reliance can be placed on the memorandum of the co-
accused till some recovery is made or some evidence is collected on
that point.
6. Learned counsel for the applicant has also placed reliance on the
Single Bench order dated 09.12.2024 Vibhore Shukla Vs. The State of
M.P., passed in M.Cr.C.No.52653/2024 whereby bail was granted on
the ground that the accused has been enroped as accused on the basis of
the memorandum and no recovery has been made from him and no
other evidence has been collected.
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7. Learned counsel for the applicant has also placed reliance on the
bail order dated 23.04.2023 Pappu Gupta Vs. State of M.P. passed in
M.Cr.C.No.45065/2020 whereby 65 bottles of cough syrup was seized
and the applicant was made accused on the basis of the memorandum.
On the aforesaid pretext it is prayed that the applicant may be released
on bail.
8. On the other hand, learned counsel for the State has opposed the
prayer for grant of bail to the applicant and has submitted that it is a
case where 15 carton of onerex cough syrup sold by the accused has
been seized from the possession of Santosh Shukla and other co-
accused person and on the basis of their memorandum that they had
purchased the aforesaid onerex cough syrup from the present applicant,
who is already detained in jail was interrogated and stated that he had
sold the aforesaid onerex cough syrup to the co-accused persons. It is
submitted that after seizure of 15 carton of the onerex cough syrup
having 1800 bottles from the co-accused persons Crime Branch,
Bhopal raided the premises in possession of the present applicant at
Shahjanabad, Bhopal and the Crime Branch, Bhopal seized a huge
quantity of onerex cough syrup having codeine phosphate from his
possession in total 127 cartons have been seized from his possession
and same is worth Rs.25,90,800/-, therefore, it cannot be said that no
recovery has been made from the possession of the present applicant. It
is further submitted that though the applicant/accused is having license,
but he has not obtained any license under NDPS Rules. As in Rule
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52A, sub Rule (3) at serial No.2, “name of essential narcotic drug”
gives a description of Methyl Morphine (commonly known as
‘Codeine’), which is an exact verbatim copy of entry No.35 in
notification titled “Manufactured Narcotic Drugs” (as contained in
Government of India notification No.S.O. 826 (E) dated 14.11.1985
and S.O. 40 (E) dated 21.09.1993 and S.O. No.1431 (E) dated
21.06.2011 and Rule 52A regulates the manner of possession and other
related activities enumerated therein with respect to
substances/preparations covered under the aforesaid entry No.35.
9. It is further submitted by the learned Deputy Advocate General
that Section 21 of NDPS Act provides of prosecution for contravention
of any of the provision of the NDPS Act or any Rule made thereunder.
Rule 52A clearly prohibits any person from possessing any “essential
narcotic drug” otherwise than in accordance with the provisions of the
rules made thereunder. It is further submitted that the applicant
admittedly sold 15 cartons of the onerex cough syrup having Codeine
Phosphate without issuing any valid bill to Santosh Shukla and other
co-accused. As such he has violated the rules made under the Act. A
recovery of huge number of onerex cough syrup has been made as
same was kept without having requisite license as required under the
provision of Rule 52A and the various notifications issued by the
Central Government. Therefore, the accused is not entitled for bail as
the case relates to the commercial quantity. It is further contended that
the case law of Toofan Singh (supra) is not applicable in the present
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case as on day of recovery of contraband from co-accused persons the
Crime Branch, Bhopal had recovered a huge quantity of onerex cough
syrup from the possession of the present applicant. Therefore, at this
stage it cannot be said that the memorandum given by the co-accused is
neither legal nor admissible as recovery of huge cache has already been
made by the Crime Branch.
10. I have heard learned counsel for the parties at length and perused
the record.
11. On perusal of the prosecution story it is apparent that on
01.02.2024, Maihar Police, intercepted Brezza vehicle bearing
registration number M.P.-17-CC-2955 and from the conscious
possession of four person, who were traveling in the vehicle 15 carton
onerex cough syrup in total 1800 bottles of the cough syrup having
codeine phosphate worth Rs.3,06,000/- has been seized and on the
basis of their information in the memorandum that they purchased the
aforesaid cough syrup having Codeine Phosphate from Ankit Bung,
Crime Branch, Bhopal raided the premises in possession of the present
applicant and seized 127 carton of onerex cough syrup in total 15,240
bottles worth Rs.25,90,800/- from the possession of the present
applicant. He was arrested and charge sheet has been filed.
12. Undoubtedly, applicant runs a medical shop in the name and style
of “R.S. Enterprises” and has a license to sale, stock or exhibit or offer
for sale or distribute by wholesale on the premises situated at Shop
Signature Not Verified
Signed by: VINOD SHARMA
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No.F-70, 1st Floor Vardhman Plaza, Hamidia Road, Tahsil Huzur,
District Bhopal (M.P.) license is valid from 24.05.2022 to 23.05.2027.
Annexure A/3 GST invoive credit memo issued by Ujjwal Enterprises,
Gwalior show that on 25.01.2024 applicant had purchased 120 cartons
of onerex cough syrup from it. It reveals that he had purchased the
aforesaid cough syrup from Ujjwal Enterprises, but it cannot be
overlooked that he has not produced any other bill showing that he had
purchased some other quantity as well from Ujjwal Enterprises. As per
the invoice he had purchased only 120 cartons of cough syrup worth
Rs.10,80,000/- but on the contrary 127 cartons have been seized from
the house in his possession and not from the shop of “R.S. Enterprises”.
15 cartons had already been sold by him to the co-accused persons.
Thus, it is not clear as to how he came into the possession of the excess
cartons beyond the quantity of purchased drug shown in the Annexure
A/3 bill of Ujjwal Enterprises. It is also not clear that about sale of the
aforesaid 15 carton of onerex cough syrup having codeine phosphate to
Santosh Shukla and others, he has issued any bill or invoice in their
favour or not there is nothing on record, on the basis of which, it can be
inferred that he had sold the aforesaid huge quantity of the codeine
cough syrup for any therapeutically purposes to the co-accused persons
as they are neither valid license holder nor registered medical
practitioner. The Rule 52A of Narcotic Drugs and Psychotropic
Substances Rules, 1985 mandates that possession of any essential
narcotic drug such as Codeine is prohibited, and a person may possess
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the same only as has been at one time sold or dispensed for his use as
per the prevailing law. Thus, possession of large quantities of codeine
for no rhyme or reason is strictly prohibited under the scheme of these
rules. Even a registered medical practitioner is not allowed to possess
over a certain quantity for practice and cannot use the same for sale or
distribution.
13. Rule 52B or Narcotic Drugs and Psychotropic Substances Rules,
1985. – Makes it clear that the license dealer must have the specific
license under the NDPS Act or Rules to possess, sell, exhibit or
distribute such essential narcotic drugs. The Rule or the Act nowhere
provides that a license under the Drugs and Cosmetics Act would be
sufficient to qualify as a license under the NDPS Act. Applicant has not
produced any license to qualify as a license under the NDPS Act as
required under Rule 52B of the Narcotic Drugs and Psychotropic
Substances Rules.
14. Section 9 (1)(va) of NDPS Act, which was introduced by the
Narcotic Drugs and Psychotropic Substances (amended) Act, 2014,
which came into effect on 01.05.2014 authorized Government to permit
and regulate the manufacture, possession, transport, import inter-state
export, inter-state sale, purchase, consumption and use of the essential
Narcotic Drugs. The term essential Narcotic Drug has not been defined
in the NDPS Act. NDPS Rule 52A of the said chapter provides as
under:-
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“52A. Possession of essential narcotic drug. – (1) No person
shall possess any essential narcotic drug otherwise than in
accordance with the provisions of these rules.
(2) Any person may possess an essential narcotic drug in
such quantity as has been at one time sold or dispensed for
his use in accordance with the provisions of these rules.
(3) A registered medical practitioner may possess essential
narcotic drug, for use in his practice but not for sale or
distribution, not more than the quantity mentioned in the
Table below, namely-
TABLE
Sr. No. Name of the essential Quantity
narcotic drug
1. Morphine and its salts 500 Milligrammes
and all preparations
containing more than
0.2 per cent of
Morphine
2. Methyl morphine 2000 Milligrammes
(commonly known as
‘Codeine’) and Ethyl
morphine and their salts
(including Dionine), all
dilutions and
preparations except
those which are
compounded with one
or more other
ingredients and
containing not more
than 100 milligrammes
of the drug per dosage
unit and with a
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concentration of not
more than 2.5% in
undivided preparations
and which have been
established in
therapeutic practice.
3. Dihydroxy Codeinone 250 Milligrammes
(commonly known as
Oxycodone and
Dihydroxycodeinone)
its salts (such as
Eucodal Boncodal
Dinarcon Hydrolaudin,
Nucodan, Percodan,
Scophedal, Tebodal and
the like), its esters and
the salts of its ester and
preparation, admixture,
extracts or other
substances containing
any of these drugs.
4. Dihydrocodeinone 320 Milligrammes
(commonly known as
Hydrocodone), its salts
(such as Dicodide,
Codinova, Diconone,
Hycodan, Multacodin,
Nyodide, Ydroced and
the like) and its esters
and salts of its ester, and
preparation, admixture,
extracts or other
substances containing
any of these drugs
5. 1- phenethyl – 4- n- Two transdermal
propionylanilino – patches one each of 12.5
piperdine (the microgram per hour and
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international non- 25 microgram per hour;
proprietary name of
which is Fentanyl) and
its salts and
preparations, admixture,
extracts or other
substances containing
any of these drugs
Provided that the Controller of Drugs or any
other officer authorised in this behalf by him may by
special order authorise, in Form 3-B, any such
practitioner to possess the aforesaid drugs in
quantity larger than as specified in the above Table:
Provided further that such authorisation may be
granted or renewed, for a period not exceeding
three years at a time.
Explanation. – The expression “for use in his
practice” covers only the actual direct
administration of the drugs to a patient under the
care of the registered medical practitioner in
accordance with established medical standards and
practices.”
15. Hon’ble Apex Court in Union of India Vs. Sanjeev V.
Deshpande(2014) 13 SCC 1 has held as under:-
“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 underSignature Not Verified
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13Section 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.”
16. On the basis of the aforesaid analysis, it is apparent that, if a case is
covered by Rule 52A of NDPS Act made under Section 9 (1)(a)(va) of
the NDPS Act then violation of the said rule would be punishable under
the same rule.
17. Hon’ble Apex Court in the case of Hira Singh and Others Vs.
Union of India and another (2020) 20 SCC 272 has held as under:-
“In case of seizure of mixture of Narcotic Drugs or
Psychotropic Substances with one or more neutral
substance(s), the quantity of neutral substance(s) is not
to be excluded and to be taken into consideration along
with actual content by weight of the offending drug,
while determining the “small or commercial quantity”
of the Narcotic Drugs or Psychotropic Substances.”
18. After taking into consideration the submissions putforth by the learned
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counsel for the parties, I am of the view that it is a case where a huge
commercial quantity has been seized from the co-accused and from the
present applicant also by Police of two different Police Stations i.e. Maihar
and Bhopal. Co-accused have been apprehended with the huge quantity by
Maihar Police while Bhopal Crime Branch has seized 127 cartons worth
Rs.25,90,800/- from the possession of the present applicant. The
present applicant has not issued any bill in favour of the co-accused
persons, therefore, at this stage, it cannot be said that he had sold the
cough syrup having Codeine Phosphate to registered medical
practitioner or same was sold for any therapeutic purposes.
19. In such situation the bail cannot be granted without complying
with the requirements of Section 37 of the NDPS Act, as his
involvement in the commission of offence prima facie appears and
same is punishable under Section 21 read with Section 29 of NDPS
Act. The rigour of Section 37 of NDPS Act would apply to the present
case. Since the applicant and co-accused have been found in possession
of the commercial quantity of Codeine Phosphate and there is no
material on record to show that the applicant has not committed the
offence or he is not likely to commit the offence, in the case of release
on bail. Hence, it can be said that he has not satisfied the condition laid
down under Section 37 of the NDPS Act. As a huge quantity has been
seized from the possession of the present applicant also by the Crime
Branch, Bhopal, therefore, he gets no benefit from the law laid down
by the Hon’ble Apex Court in the case of Toofan Singh (supra) and
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bail orders passed by the co-ordinate Benches of this Court as in those
cases, no recovery was made from the applicant.
20. In view of above, the first bail application filed on behalf of the
applicant is hereby dismissed.
(DINESH KUMAR PALIWAL)
JUDGE
Vin**
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Signature Not Verified
Signed by: VINOD SHARMA
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON’BLE SHRI JUSTICE DINESH KUMAR PALIWAL
M.Cr.C No.40558/2024
Ankit Bung alias Maheshwari
Vs.
State of Madhya Pradesh
Dated 09.12.2024.
Shri Narendra Kumar Sharma – Advocate for the applicant.
Shri Abhijeet Awasthy – Deputy Advocate General for the respondent/State.
Arguments heard.
Reserved for orders.
(DINESH KUMAR PALIWAL)
JUDGE
Vin**
Signature Not Verified
Signed by: VINOD SHARMA
Signing time: 20-12-2024
1:17:32 PM