ASHWANI KUMAR TULI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present petition has been filed on behalf of petitioner Ashwani Kumar Tuli for grant of regular bail in case FIR No. 102 dated 7.9.2010 under Sections 21/22/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") registered at Police Station Division No. 3, Jalandhar.

(2.) Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case. As per allegations in the FIR, the petitioner was found to be in unauthorised possession of intoxicating capsules and injections which were alleged to be found in the dicky of the scooter. The petitioner is running a partnership firm duly registered with Registrar of Firms, Punjab under the name and style of M/s Shiv Shankar Medicos at 10-H, Dilkusha Market, Jalandhar dealing in wholesale business of medicines. The petitioner is having licence to sell, stock or exhibit or offer for sale or distribute by wholesale drugs other than those specified in Schedule C, C (1) and X vide Form 20-B from 19.3.2008 to 18.3.2013. Learned counsel for the petitioner further submits that Dextropropoxyphene and its salts are categorized as Prescription Drug in Schedule 'H' of Drugs and Cosmetics Rules 1945 under rule 65 & 97 and therefore, the Drugs and Cosmetics Act 1940 as well as Drugs and Cosmetics Rules 1945 will be applicable to the confiscated material instead of the N.D.P.S. Act, 1985 as applied by the police. Learned counsel for the petitioner also relied upon the judgment of Hon'ble the Apex Court reported in State of Uttaranchal v. Rajesh Kumar Gupta, 2006 4 RCR(Cri) 974 wherein it was observed that the drugs falling within purview of schedules 'G' and 'H' of Drugs and Cosmetics Act and prima facie provisions of N.D.P.S.Act will not be applicable and thus for purposes of bail, Section 37 of N.D.P.S. Act will not apply in view of exception contained in Section 8 of N.D.P.S.Act. The petitioner is in custody since 7th September, 2010 and challan has not yet been presented and no useful purpose would be served by keeping the petitioner in custody as the trial may take some time and recovery has already been effected from the petitioner.

(3.) Mr. Vishal Munjal, learned Addl. A.G. Punjab opposes the bail on the ground that as per entry No. 33 of the Notification, any quantity beyond 500 grams of Dextropropoxyphene is termed as commercial quantity and as such, commercial quantity of the contraband has been recovered from the conscious possession of the petitioner and keeping in view the heavy quantity of contraband and the provisions of Section 37 of the Act, the petitioner cannot be granted the benefit of bail at this stage.