A drug which is manufactured but falls outside the scope of the definition of a manufactured drug under the NDPS Act on account of the component of offending material being below the prescribed threshold, cannot be construed as a manufactured drug by dissecting its ingredients and considering them in isolation. The above-mentioned statement has been established by the court in earlier judgments and has been considered an ambiguous statement by the Delhi High Court, which requires a more extensive approach to be followed and hence was referred to a larger bench. The instant case of Mohd Ahsan V. Customs [BAIL APPLN. l 136/2021] was decided upon by a single judge bench comprising Justice Subramonium Prasad on 25th June 2021.
The facts of the case are as follows. The petitioner was to travel Saudi Arabia by flight. On suspicion of the security staff, he was handed over to Saudi Arab Airlines Staff and was further handed over with his baggage to the Customs Authorities by the Airlines Staff for further investigation. The baggage of the petitioner was opened and examined. On opening it was found that the baggage was containing two big packets wrapped with brown tape. The first packet was opened and it was found that it contained 55 bottles of Phensedyl. The second packet was found containing 55 bottles of Phensedyl.
It was contended by the counsel for petitioner that the petitioner was not in conscious possession of the drug since he is illiterate and was carrying cough syrup. He contended that the petitioner was not carrying commercial quantity of drugs and he placed reliance on the judgment of this Court titled as Iqbal Singh v. State wherein this Court has granted bail in similar circumstances. Per contra, Mr. Vishal Chadha, learned SPP for Customs places reliance on the judgment of the Supreme Court in Md. Sahabuddin (supra) and Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382. He contended that the judgment of Hira Singh (supra) squarely covers the issue and the Supreme Court has held that the total weight of the manufactured drug or preparation including the neutral material is required to be considered while determining small quantity or commercial quantity.
The court undertook a perusal of the facts and arguments presented. It took into consideration several case laws in order to understand whether the quantity of neutral substances should be accounted for or not. It was hence of the opinion that “the judgment of the Supreme Court in Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382 does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of narcotic drugs or psychotropic substance out of a neutral substance. The judgment of Iqbal Singh (supra) is therefore contrary to a plain reading of the judgment of the Supreme Court. Since cases of this nature are common there is a strong possibility that different Single Judge Benches of this Court may take different opinions while deciding as to whether the rigour of Section 37 would be attracted or not in such cases. It would therefore be in the interest of justice that an authoritative and final pronouncement is made by a larger Bench of this Court. Since the question is referred to a larger Bench, this Court is inclined to grant the petitioner interim bail for 90 days on the petitioner furnishing a personal bond in the sum of Rs.35,000/- with surety in the like amount to the satisfaction of the Trial Court”
