MD. SAHABUDDIN & ANR.versusSTATE OF ASSAM

                    [2012] 8 S.C.R. 1193


                MD. SAHABUDDIN & ANR.                         A ,
                              v.
                    STATE OF ASSAM
            (Criminal Appeal No. 1602 of 2012)
                    OCTOBER 05, 2012
                                                              B
         [T.S. THAKUR AND F.AKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

      Narcotic Drugs and Psychotropic Substances Act, 1985
- Transportation of huge quantity of cough syrup without valid c
 documents - Cough syrup containing narcotic substance of
codeine phosphate beyond the prescribed limit - Bail
application of accused-appellants - Rejection of - Propriety
- Held: When the appellants were not in a position to explain
as to whom the supply was meant for, and in the absence of D
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 could not be
considered - Since the appellants had no documents in their E
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 could not be
simply presumed that such transportation was for therapeutic
practice as mentioned in the Notifications dated 14. 11. 1985 F
and 29. 1. 1993 - In view of the conduct of the appellants, they
cannot be heard to state that they were not expected to fulfill
any of the statutory requirements either under the Drugs &
Cosmetics Act or under the NDPS Act - Drugs & Cosmetics
Act - s. 27 - Drugs & Cosmetics Rules - Rules 65, 97, 61 (1)
and 61 (2) - Central Government Notifications bearing G
S.0.826(E) dated 14.11.1985 and G.S.R.40(E) published on
29.1.1993 - Bail.

    Words and Phrases - "Therapeutic practice" - Meaning.
                         1193                                H
    1194     SUPREME COURT REPORTS            [2012) 8 S.C.R.


A      According to the prosecution, the accused-
  appellants were involved in the transportation of huge
  quantity of cough syrup without valid documents and
  further that the said quantity of cough syrup contained
  the narcotic substance of codeine phosphate beyond the
B prescribed limit, and thus offence was made out under
  the provisions of the Narcotic Drugs and Psychotropic
  Substances Act, 1985. The appellants were produced
  before the C.J.M. who remanded them to judicial custody.
  The appellants moved the Court of Sessions Judge for
C grant of bail but the Sessions Judge rejected the bail
  application. Thereafter, the appellants moved the High
  Court, which having declined to grant bail, the present
  appeal was filed.

           Dismissing the appeal, the Court
D
          HELD: 1.1. In view of 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
E   containing 100 bottles of 100 ml. Recodex cough syrup
    without valid documents for such transportation, they
    cannot be heard to state that they were not expected to
    fulfill any of the statutory requirements either under the
    provisions of Drugs & Cosmetics Act or under the
    provisions of the Narcotic Drugs and Psychotropic
F
    Substances Act, 1985. [Para 10) [1200-8-C]

       1.2. 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
G 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
H
    MD. SAHABUDDIN & ANR. v. STATE OF ASSAM 1195


 be considered. The contention of the appellants was that A
 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 B
 29.1.1993. However, 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 c
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
                                                            0
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. [Paras 11, 12] [1200-D-H; 1201-A-B]

      1.3. Since the appellants had no documents in their E
 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 F
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 human consumption, the G
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 H
    1196     SUPREME COURT REPORTS               [2012] 8 S.C.R.


A   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.
    [Para 13] [1201-C-F]

        2. As far as the grievance raised on the ground that
B   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,
    there is no scope to interfere with the same. [Para 14]
    [1201-F-G]
c
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1602 of 2012.

        From the Judgment & Order dated 25-5.2012 of the
    Gauhati High Court at Guwahati in Bail Application No. 885 of
0
    2012.

         Manoj, Aparna Sinha, B.N. Mazamder, Abhijat P. Medh for
    the Appellants.

E          Avijit Roy, Corporate Law Group for the Respondent.

           The Judgment of the Court was delivered by

        FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
    granted.
F
       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
G 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 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
H search could not be conducted and, therefore, the vehicle and
   MD. SAHABUDDIN & ANR. v. STATE OF ASSAM                   1197
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

 the appellants were kept in the police station on that night. On A
 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 34 7 cartons, each carton containing 100 bottles
of 100 ml. Phensedyl cough syrup and 102 cartons, each carton B
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 C
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.

     3. As we are concerned with the Bail Application No.885/        D
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        E
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           F
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        G
Notifications bearing S.0.826(E) dated 14.11.1985 and
G.S.R.40(E) published on 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
                                                                     H
    1198    SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A   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
8   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.
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
D   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,
E   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.
F
       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
G 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 paragraph 34 of its order which can be
  usefully extracted hereunder:


H
   MD. SAHABUDDIN & ANR. v. STATE OF ASSAM                  1199
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

     "B.A. No.885/2012                                              A
     Recodex 10200*182.73 milligrams =1863 grams =1.863
     kilograms

     Phensedyl 34 700*183.15 milligrams = 6355 grams
     =6.355 kilograms                                               B
     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        C
 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     D
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    E
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        F
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 G
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 H
    1200    SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A   a transporter, in particular, the driver and a khalasi was under
    no 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
8
  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
C 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
D 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
E   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
F   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.
G 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
H the narcotic substance should not be more than 100 mg. of
  MD. SAHABUDDIN & ANR. v. STATE OF ASSAM 1201
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

codeine, per dose unit and with a concentration of not more           A
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              B
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 C
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 D
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 N.D.P.S. Act calling for appropriate E
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 F
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          G
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        H
    1202      SUPREME COURT REPORTS                    [2012] 8 S.C.R.


A   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.

           16. When we refer to the decisions relied upon by the
     learned counsel for the appellants, we find that none of the facts
8
     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
C   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.

D         17. We do not find any merit in ihis appeal. The appeal
    fails and the same is dismissed. V'.'e.. however, make it clear
    that whatever stated in this order i::, cnly 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
E   against the appellants.

    8.8.8.                                        Appeal dismissed.