Holding

Because the seized substances are not included in Schedule I of the NDPS Rules, Section 8 of the NDPS Act does not apply and consequently Section 37 is inapplicable, so the High Court’s grant of bail stands.

Summary

The State of Uttarakhand appealed against the High Court’s order granting bail to Rajesh Kumar Gupta, an Ayurvedacharya who was arrested for allegedly dispensing unlabelled tablets containing psychotropic substances such as phenobarbitone and chlorodiazepoxide, claimed to be herbal cures for epilepsy. Seizure of about 70 kg of phenobarbitone led to charges under Section 8 read with Section 22 of the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985. The High Court held that because the seized drugs were not listed in Schedule I of the NDPS Rules, the prohibition in Section 8 did not apply and bail could be granted. The Supreme Court examined whether the drugs, though listed in Schedules G and H of the Drugs and Cosmetics Act, fell within the NDPS Act’s prohibitory regime and whether Section 37 (non‑bailable offences) was applicable. It concluded that the drugs’ absence from Schedule I meant Section 8 was inapplicable, rendering Section 37 inapplicable; consequently, the High Court’s bail order was proper. The appeal was dismissed.

Issues considered

Whether drugs listed in Schedules G and H of the Drugs and Cosmetics Act but not in Schedule I of the NDPS Rules fall within the prohibition of Section 8 of the NDPS Act, 1985.
Whether Section 37 of the NDPS Act, which makes certain offences non‑bailable, applies to the respondent’s alleged offence.
Whether bail can be granted when the offence under the NDPS Act is not established.

Legislation cited

Drugs and Cosmetics Acts. Schedules G and H
Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954
Narcotic Drugs & Psychotropic Substances Act, 1985s. 22, s. 37, s. 8

Subjects

NDPS ActBailMedicinal purpose exceptionSchedule ISchedule GSchedule HPsychotropic substancesSection 8Section 37Ayurvedic practitionerDrug seizure

Judgment

STATEOFUTTARANCHAL A
v.
RAJESH KUMAR GUPTA

NOVEMBER 10, 2006

[S.B.SINHA AND P.P. NAOLEKAR, JJ.] B

Narcotic Drugs & Psychotropic Substances Act, 1985:

Section 8 read with Section 22-Certain operations-Prohibition of-
Drugs for medicinal purposes-Use of-Bail-Grant of-Accused, an. C
Ayurvedacharya, allegedly issued advertisements in various newspapers
claiming that medicines used by him were prepared from herbal plants and
by application thereof patients suffering from epilepsy could be cured-The'
accused, in his medicine, had been using unlabelled tablets containing ·
psychotropic substances making unsuspecting patients addicted to the drugs- D
Raids conducted in his clinic yielded 70 Kg of pure phenobarbitone-
Accused arrested on charges framed against him under Section 8 read with
Section 22-The drugs seized from the respondent were Schedule G and H
drugs as envisaged in the Drugs and Cosmetics Act and the same were used
for "medicinal purposes"-Bail refused by Special Judge-However, High
Court granted bail holding that the drugs in question were not listed in the E
1st Schedule appended to the Act-Correctness of-Held: It is not in dispute
that the drugs were used for "medicinal purposes" and that they were
allopathic drugs listed in Schedule G and H of the Drugs and Cosmetics
Act-Therefore, S. 37 of the 1985 Act would prima facie have no application
in view of the exception contained in Section 8 thereof read with the Rules-F
Hence, High Court rightly granted bail-Narcotic Drugs & Psychotropic
Substances Rules, 1985, Rr. 53, 64, 65, 66 & 67-A-Drugs and Magic
Remedies (Objectionable Advertisement) Act, 1954-Drugs and Cosmetics
Act, , Schedule G and H

Words & Phrases: G
"Medicinal purposes"-Meaning of-In the context of Section 8 of the
Narcotic Drugs & Psychotropic Substances Act, 1985.

The respondent was an Ayurvedacharya. The respondent allegedly issued
843 H
844 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A advertisements in various newspapers claim!ng that medicines used by him
were prepared from herbal plants and by application thereof patients suffering
from epilepsy could be cured. There were allegations that the respondent, in
his medicine, had been using unlabelled tablets containing psychotropic
substances making unsuspecting patients addicted to the drugs. There was a
recovery of 70 Kg of pure phenobarbitone from the premises of the respondent
B
The respondent was arrested on charges framed against him under
Section 8 read with Section 22 of the Narcotic Drugs & Psychotropic
Substances Act, 1985. The Special Judge dismissed the application for bail
moved by the respondent However, the High Court granted bail holding that
C the drugs in question not being listed in the 1st Schedule appended to the
Act, the respondent could not be said to have committed any offence under
Section 8 read with Section 22 of the Act. Hence the appeal.

On behalf of the respondent, it was contended that the drugs seized from
the respondent were Schedule G and H drugs as envisaged in the Drugs and
D Cosmetics Act and the same were used for medicinal purposes and, therefore,
no offence was committed under the Act.

Dismissing the appeal, the Court

HELD: 1. It is not in dispute that the medicines seized from the
E respondent's clinic come within the purview of Schedules G and Hof the Drugs
and Cosmetics Act. It is not furthermore in dispute that the medicines do not
find place in Schedule I appended to the Narcotic Drugs & Psychotropic
Substances Rules, 1985. If the said drugs do not find place in Schedule I
appended to the Rul~s, the provisions of Section 8 of the Narcotic Drugs &
Psychotropic Su.bstances Act, 1985 would have no application whatever.
F Section 8 of the 1985 Act contains a prohibitory clause, violation whereof
leads to penal offences thereunder. (854-D, E, F)
2. In view of the fact that all the drugs being allopathic drugs mentioned
in Item Nos. 1, 2, 3, 4, 6 & 7 in Schedules G and Hof the Drugs and Cosmetics
Act and which are being indisputably used for medicinal purposes, it cannot
G be denied that they are acknowledged to be the drugs which would come within
the purview of description of the expression "medicinal purposes".
1854-F,G]
3. The exceptions contained in Section 8 of the 1985 Act must be judged,;..
on the touchstone of:
H
STATE OF UTTARANCHAL v. RAJESH KUMAR GUPTA 845
(i) whether the drugs are used for medicinal purposes. A
(ii) whether they come within the purview of the regulatory provisions
contained in Chapters VI and VII of the 1985 Rules. [854-G, H; 855-A)

4.1. Chapter VII-A of the 1985 Rules provides for special provisions
regarding manufacture, possession, transport, import-export, purchase and B
consumption of narcotic drugs and psychotropic substances for medical and
scientific purposes. (855-A-B)

4.2. It, therefore, permits use of narcotic drugs and psychotropic
substances for the purposes mentioned therein. Rule 67-A does not abrogate
the provisions of Rule 53 or Rule 64 provided for in Chapters VI and VII of C
the 1985 Rules. They are in addition to the said provisions. It, horever,
contains some more restrictions. In terms of Clause (b) of Rule 67iA, the
records concerning the acquisition of the substance and the details dftheir
use in Form 7 of those Rules are to be mentioned. [855-B, C)
D
4.3. Violation of Clause (c) of Rule 67-A does not appear to have been
alleged against the respondent However, the respondent has complied with
the said provisions and, in fact, along with his bail application requisite
documents have been furnished. [855-D)
5. Section 37 of the 1985 Act must be construed in a pragmatic manner. E
It cannot be construed in such a way so as to negate the right of a party to
obtain bail which is otherwise a valuable right for all practical purposes.
(855-E, FJ
Dadu alias Tulsidas v. State of Maharashtra, [2000) 8 SCC 437,
Ranjitsing Brahamajetsing Sharma v. Staie of Maharashtra, [2005) 5 SCC F
294, Babanrao Tukaram Ranjabe v. State of Maharashtra, JT (2006) 11 SC
33, Sajan Abraham v. State ofKera/a, [2004) 4 SCC 441 and Hussain~· State
of Kera/a, [2000) 8 SCC 139, relied on. '
Collector of Customs v. Ahadalieva Nodira, [2004] 3 SCC 549, referred
to.
G
i Rajinder Gupta v. The State, 123 (2005) DLT 55 (Del) and Pradeep
Dhond v. Intelligence Officer, Narcotic & Control Bureau (Criminal
Application No. 6787 disposed of on. 7.2.2006) (Born), approved.

6. In the instant case, Section 37 of the 1985 Act would prima facie
have no application in view of the exception contained in Section 8 thereof H
,_L
I

846 SUPREME COTJRT REPORTS [2006] SUPP. 8 S.C.R.

A read with the Rules .. [858-B, CJ
8. The respondent is charged with a grave offence. It was, therefore, all
the more necessary to apply the principles of law strictly. A person cannot be
denied the right of being released on bail unless a clear case of application of
the 1985 Act is made out The respondent might have committed an offence
B which repulses out moralit)I. He may ultimately be found guilty even for
commission of an offence under the 1985 Act, but in a case of this nature,
when primafacie the provisions of the said Act are not found applicable, and
particularly in view of the fact that he has been in custody for a period of
more than two years now, it is not a fit case where discretionary jurisdiction
C under Article 136 of the Constitution should be exercised. [858-D, E, F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 672 of
2006.

From the Final Order dated 2.12.2005 of the High Court ofUttaranchal
D atNanital in Criminal Bail Application No. 917 of2005.

Amarendra Sharan, A.S.G., D. Bharathi Reddy and P. Vinay Kumar for
the Appellant.

K.T.S. Tutsi, Saket Bhuguna, Gaurave Bhargava, P.D. Sharma and
E Narender Kumar for the Respondent.

The Judgment of the Court was delivered by:

S.B. SINHA, ·J. The respondent herein is an Ayurvedacharya. He
operates from two clinics known as: (I) Neeaj Clinic Pvt. Ltd. (NCPL) and (2)
F Dr. B.S. Gupta Medical Charitable Society (BSGMCS). Advertisements were,
allegedly, being issued by him in various newspapers claiming that medicines
used by him were prepared from herbal plants collected from the banks of
Ganges and by application thereof patients suffering from epiiepsy can be
cured. The State, however, on the allegation that in his medicine, he had been
G using unlabelled tablets containing psychotropic substances making the
unsuspecting patients addicted to the drugs, raided the premises of the said
clinics. 70 kgs. pure phenobarbitone were recovered. It is alleged that through
NCPL 336.88 kgs., 524 kgs., 537.32 kgs. and 117 kgs. of drugs (phenobarbitone)
were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April
to July) respectively and through BSGMCS 398.65 kgs., 406.88 kgs., 519.95
H kgs. and 235.12 kgs. of drugs (phenobarbitone) were sold in the years 2001-
... STATE OF UTTARANCHAL v. RAJESH KUMAR GUPTA [S.B.SINHA J. ]847

2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively. A
The drugs allegedly used to be dispatched by post also. Appellant was
arrested 011 13.8.2004 and since then he is in jail custody. Charges were framed
.,
/
against him under Section 8 read with Section 22 of the Narcotic Drugs &;
Psychotropic Substances Act, 1985 (' 1985 Act', for short) and Drugs an~
Magic Remedies (Objectionable Advertisement) Act, 1954. An application fo~ B
bail was moved by him before the Special Judge. It was dismissed. He filed.
an application for bail, however, before the High Court on 30.7.2005, which
has been granted. Special Leave Petition was filed thereagainst and by an
order dated 14.11.2005, the bail application was revived. The High Court was
requested to dispose of the same expeditiously. By reason of the impugned
c
order dated 2.12.2005 the said bail application has been allowed. The State is,
thus, before us.

In its order the High Court noticed that ordinarily applications for bail
are required to be considered having regard to Section 37 of the 1985 Act.
It, however, opined that the drugs in question not being listed in the l st D
Schedule appended to Narcotic Drugs and Psychotropic Substances Rules,
1985 ('the Rules', for short), the respondent cannot be said to have committed ;

any offence under Section 8 read with Section 22 of 1985 Act.

Mr. A. Sharan, learned Additional Solicitor General appearing on behalf
of the State submitted that the High Court committed a serious error in E

- ·opining that the offence under Section 22 ·having not been referred ~o in
Section 37of1985 Act, the rigours th.ereofhave no application. The learned
Additional Solicitor General urged that although in terms of Section 8 of 1985
Act, an exception has been made as regards use of the psychotropic substances
for medicinal or scientific use, such use must be bona fide and in terms of
F
the Rules framed under the 1985 Act.

Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the
respondent, on the other hand, contended that the drugs alleged to hav¢
been seized from the Neeraj Clinic being Schedule H drugs as envisaged ii)
Drugs and Cosmetics Act and the same having been used for medicinal
G
purposes and being not the drugs provided for in the rules framed under the
1985 Act, primafacie no offence can be said to have been committed under
the 1985 Act. Our attention in this behalf has been drawn to a decision of
a learned Single Judge of the Delhi High Court in Rajinder Gupta v. The State
reported in 123 (2005) DLT 55.
H
848 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A The 1985 Act was enacted with a view to consolidate and amend the
law relating to narcotic drugs, to make stringent provisions for control and
regulation of operations relating to narcotic drugs and psychotropic
substances, to provide for the forfeiture of property derived from, or used in
illicit traffic in narcotic drugs and psychotropic substances, to implement the
provisions of the International Convention on Narcotic brugs and Psychotropic
B Substances and for matters connected therewith.

Section 2 (viia) defines "commercial quantity" to mean any quantity
greater than the quantity specified by the Central Government by notification
in the Official Gazette. "Small quantity" has been defined in Section 2(xxiiia)
C to mean any. quantity lesser than the quantity specified by the Central
Government by notification in the Official Gazette.

Section 8 provides for prohibition in respect of certain operations,
stating :
1
' 8. Prohibition of certain operations.
D
No person shall

(a) cultivate any coca plant or gather any portion of coca plant;
or

E (b) cultivate the opium poppy or any cannabis plant; or
(c) p.-oduce, manufacture, possess, sell, purchase, transport,
warehouse, use, consume, import inter-State, export inter-State,
import into India, export from India or tranship any narcotic drug
or psychotropic substance,
F except for medica1 or scientific purposes and in the manner and to the
extent provided by the provisions of this Act or the rules or orders
made thereunder and in a case where any suc!1 provision, imposes
any requirement by way of licence, permit or authorisation also in
accordance with the terms and conditions of such licence, permit or
authorisatwn:
G
Provided that, and subject to the other provi!.ions of this Act and
the rules made thereunder, the prohibitio.1 against the cultivation of
the .cannabis plant for the production of ganja or the production,
possessiop, use, consumption, purchase, sale, transport, warehousing,
H import mter-State and export inter-State of ganja for. any purpose
ST ATE OF UTTARANCHAL v. RAJESH KUMAR GUPTA [S.B.SINHA J. )849

other than medical and scientific purpose shall take effect only from A
the date which the Central Government may, by notification in the
Official Gazette, specify in this behalf:

Provided further that nothing in this section shall apply to the export
of poppy straw for decorative purposes."
B
Section 37 of the 1985 Act reads as under:

"37. Offences to be cognizable and non-bailable.

{I) Notwithstanding anything contained in the Code of Criminal.
Procedure, 1973 (2of1974),
.c
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences
under section 19 or section 2 or section 27 A and also for offences
involving commercial quantity shall be released on bail or on his
own bond unless- D
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that
he is not guilty of such offence and that he is not likely to E

- commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code
of Criminal Procedure, 1973 (2of1974), or any other law for the
time being in force on granting of bail." F
The Central Government is empowered to permit, control and regulate
cultivation or gathering of any portion of coca plant or the production,
possession, sale, purchase, transport import inter-State, export inter-State, U$e
or consumption of coca leaves, etc. in tenns of Section 9 of the 1985 Act.
Section I 0 empowers the State Government to permit, control and regulate in G
regard to matters specified therein. Section 22 provides for a penal provision
for three categories of cases in regard to contravention involving small
quantity, contravention involving quantity lesser than commercial quantity
but greater than· small quantity and contravention involving commercial
quantity. H
850 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A The Central Government is conferred with the power under Section 9
read with Section 76 to fame rules, pursuant whereto rules have been framed,
known as Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter
referred as 'the Rules'). Chapter VI of the Rules deals with import, export and
transshipment of narcotic drugs and psychotropic substances.

B Rule 53 of the Rules reads thus :

"53. General prohibition. Subject to the other provisions of this
Chapter, the import into and export out of India of the narcotic
drugs and psychotropic substances specified in Schedule I is
prohibited :
c Provided that nothing in this rule shall apply in case the
drug substance is imported into or exported out of India subject
to an import certificate or export authorisation issued under the
provision of this Chapter and for the purpose mentioned in
Chapter VII-A."
D
Rule 64 provides for general prohibition, stating :

"64. General Prohibition.- No person shall manufacture,
possess, transport, import Inter-State, export inter-State, seli,
purchase, consume or use any of the psychotropic substances
specified in Schedule I."
E
Rule 65 provides for manufacture of psychotropic substances with
certain restrictions imposed therefor. Sub-Rule (3) of Rule 65 permits
manufacture of psychotropic substances by a licensee in regard to the quantity
mentioned therein. The proviso appended thereto reads as follows :
F "Provided that nothing contained in this rule shall apply in case the
psychotropic substances specified in Schedule I are manufactured,
possessed, transported, imported inter-State, exported inter-State, sold,
purchased, consumed or used subject to other provisions of this
Chapter which applies to psychotropic substances which are not
G included in Schedule I and for the purposes mentioned in Chapter VII-
A:

Provided further that the authorit) in charge of the drug control in a
State referred to in sub-rule (2) of rule 65 shall consult the Narcotics
Commissioner before issuing a licence under rule 65 ·in respect of
H psychotropic substances included in Schedule I and Schedule III."
STATE OF UTTARANCHAL v. RAJESH KUMAR GUPTA [S.B.SINHA J. ] 851

Rule 66 of the Rules reads thus : A
"66. Possession, etc., ofpsychotropic substances. (1) No person
shall possess any psychotropic substance for any of the purposes
covered by'the 1945 Rules, unless he is lawfully authorisea to
possess such substance for any of the said purposes under
these Rules. B
(2) Notwithstanding anything contained in sub-rule (I), any
research institution or a hospital or dispensary maintained or
supported by Government or local body or by charity or
voluntary subscription, which is not authorised to possess any
psychotropic substance under the 1945 Rules, or any person ' C
who is not so authorised under the 1945 Rules, may possess a
reasonable quantity of such substance as may be necessary for .
their genuine scientific requirements or genuine medical
requirements, or both for such period as is deemed necessary by
the said research institution or, as the case may be, the said 1

hospital or dispensary or person: D
Provided that where such psychotropic substance is in
possession of an individual for his personal medical :Ilse the
quantity thereof shall not exceed one hundred dosage units at
a time.
E
(3) The research institution, hospital and dispensary referred to
in sub-rule (2) shall maintain proper accounts and records in
relation to the purchase and consumption of the psychotropic
substance in their possession."

Rule 67 provides for transport of psychotropic substances. It reads as F
under:

"67-A. Special provisions regarding manufacture, possession,
transport, import-export, purchase and consumption of narcot(c
drugs and psychotropic substances for medical and scientific
purposes. G
Notwithstanding anything contained in the foregoing provisions
of these rules

(a) a narcotic drug and psychotropic substance may be used for

(i) scientific requirement including analytical requirements of any H
852 SUPREME COURT REPORTS [2006] SUPP. 8 S,-C.R.

A Government laboratory or any research institution in India or·
abroad;

(ii) very limited medical requirements of a foreigner by a duly
authorised person of a hospital or any other establishment of ~
the Government especially approved by that Government;
B (iii) the purpose of de-addiction of drug addicts by Government
or local body or by an approved charity or voluntary organisation
or by such other institution as may be approved by the Central
Government.

(b) persons performing medical or scientific functions shall keep
c records concerning the acquisition of the substance and the
details of their use in Form 7 of these rules and such records are
to be preserved for at least two years after their (sic); .•

(c) a narcotic drug and psychotropic substance may be supplied
or dispensed for use to a foreigner pursuant to medical
-D prescription only from the authorised licensed pharmacists or
other authorised retail distributors designated by authorities
responsible for public health."

The High Court as noticed hereinbefore proceeded on the basis
that offences under Section 8 or Section 22 do not come within the purview
E of Section 37 of the Act. Our attention was drawn to Section 22 of the 1985
Act to contend that offences in relation to commercial quantity having
specifically been mentioned in Section 37 of the 1985 Act, the same shall also
be applicable. We would proceed on the assumption that Section 37 embraces
within its fold an offence contemplated under Section 22 of the 1985 Act also
F so far as it, inter alia, relates to possession of commercial quantity of
contraband.

Chapter III of the 1985 Act, however, provides for prohibition, control
and regulation. Section 8 provides for prohibition of certain operations in
tenns whereof no person shall make any cultivation of the plants mentioned
G in Clauses (a) and (b) thereof or, inter alia, produce, manufacture, possess,
sell, purchase, transport, warehouse, use, consume, import inter-State, export
inter-State, import into India, export from India or tranship any narcotic drug
or psychotropic substance. The said provision contains an exception which
takes within its fold all the classes of cases preceding thereto. Use of the·
contraband for medical or scientific purposes is, therefore, excluded from the
H
STATE OF UTT ARANCHAL v. RAJESH KUMAR GUPTA [S.B.SINHA J. ]853

purview of the operation thereof. However, such exception carves out under A
the 1985 Act specifically refers to the manner and to the extent provided by
the provisions of the 1985 Act or the rules or orders made thereunder.

It has not been brought to our notice that the 1985 Act provides for
the manner and extent of possession of the contraband. The Rules framed
under Section 8 of the 1985 Act read with Section 76 thereof, however, B
provides for both the manner and the extent, inter alia, of production,
manufacture, possession, sale, purchase, transport, etc. of the contraband.
Chapter VI of the 1985 Rules provides for import, export and transshipment
of narcotic drugs and psychotropic substances. Rule 53 contains general
prohibition in terms whereof the import and export out oflndia of the narcotic C
drugs and psychotropic substances specified in Schedule-I appended thereto I
is prohibited. Such prohibitions, however, is subject to the other provisions
. of the said Chapter. Rule 63 to which our attention has been drawn specific"lly
prohibits import and export of consignments through a post office box but
keeping in view the general provisions contained in Rule 53 the same must
be held to apply only to those drugs and psychotropic substances which are D
mentioned in Schedule-I of the Rules and not under the 1985 Act. Similarly,
Chapter VII provides for psychotropic substances~ Rule 64 provides for general
prohibition. Rules 53 and 64, thus, contain a genus and other provisions
following the same under the said Chapter are species thereof. This we say
in view of the fact that whereas Rule 64 provides for general prohibition in E
respect of sale, purchase, consume or use of the psychotropic substances

-
specified in Schedule-I, Rule 65 prohibits manufacture of psychotropic
substances; whereas Rule 66 prohibits possession, etc. of psychot~opic
substances and Rule 67 prohibits transport thereof. Rule 67-A provides for
special provisions for medical and scientific purposes.
F
The general provisions contained in both Rules 53 and 64, ther~fore,
refer only to the drugs and psychotropic substances specified in Schedule-
1. It is neither in doubt nor in dispute that whereas the Schedule appflnded
to the 1985 Act contains the names of a large number of psychotropic
substances, Schedule-I of the Rules prescribes only 35 drugs and psychotropic
substances. G
Respondent admittedly possesses an Ayurveda Shastri degree. It is
stated that by reason of a notification issued by the State of l.Jttar Pradesh
dated 24.2.2003, the practitioners of Ayurvedic system of medicin~s are
authorised to prescribe allopathic medicines also. Respondent runs a clinic H
\

854 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A commonly known as 'Neeraj Clinic'. He is said to be assisted by eight other
medical practitioners being Allopathic and Ayurvedic doctors. It is also not
in dispute that only seven medicines were seized and they are mentioned in
Schedules G and H of the Drugs and Cosmetics Act. In this regard, we may
notice the r.'11
0 OWtnl! Chart:
S.No Medicine seized Schedule H The Schedule Schedule I
B Drugs & 1985 1985
· .Cosmetics· Act Rules
,-Ac(
I. Epilan C ·yes Entry 69 -
Phenobarbitone
c 3.2. Phensobar,.50 Yes - -
Chlorodiazepoxide Yes Entry 36 -
4. Carbin Yes - -
5. Wefere - - -
(ayurvedic)
6. Ph en so
D (Schedule - G) - - -
7. Epibar 30 Yes - -
•
It is not in dispute that the medicines seized from the said clinic come
E within the purview of Schedules G and H of the Drugs and Cosmetics Act.
It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone
and Chlorodiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act
respectively, whereas none of them finds place in the Schedule I appended
to the 1985 Rules. If the said drugs do not find place in Schedule I appended
to the Rules, the provisions of Section 8 of the 1985 Act would have no
F application whatsoever. Section 8 of the 1985 Act contains a prohibitory
clause, violation whereof leads to penal offences thereunder.

In view of the fact that all the drugs being Item Nos. 1,2,3,4,6 & 7 being
allopathic drugs mentioned in Schedules G and Hof the Drugs and Cosmetics
Act indisputably are used for medicinal purposes. Once the drugs are said
G to be used for medicinal purposes, it cannot be denied that they are
acknowledged to be the drugs which would come within the purview of
description of the expression "medicinal purposes".

The exceptions contained in Section 8 of the 1985 Act must be judged
H on the touchstone of :
STA TE OF UTTARANCHAL v. RAJESH KUMAR GUPTA [S.B.SINHA J. )855

(i) whether drugs are used for medicinal purposes. A
(i~ whether they come within the purview of the regulatOry
provisions contained in Chapters VI and VII of the 1985 Rules.

Chapter VII-A of the 1985 Rules which was introduced by a notification
dated 25.6.1997 with effect from 27.6.1997 provides for special provisions B
regarding manufacture, possession, transport, import-export, purchase and
consumption of narcotic drugs and psychotropic substances for medical and
scientific purposes.

It, therefore, permits use of narcotic drugs and psychotropic substan¢es
for the purposes mentioned therein. Rule 67-A does not abrogate the C
provisions of Rule 53 or Rule 64 provided for in Chapters VI and VII of ~he
1985 Rules. They are in addition to the said provisions. It, however, contains
some more restrictions. We are only concerned with Clause (b) of Rule 67-
A, in terms whereof the records concerning the acquisition of the substarlce
and the details of their use in Form 7 of those Rules are to be mentioned.
D
Violation of Clause (c) of Rule 67-A does not appear to have been
alleged against Respondent. It was, however, stated at the Bar that Respond¢nt
has complied with the said provisions and, in fact, along with his bail application
requisite documents have been furnished. Rule 67-A expressly permits use of
certain drugs for limited medical requirements of a foreigner. It, howe~er,
appears that the sentence contained in Sub-Rule {b) of Rule 67-A is not E
complete.

Section 37 of the 1985 Act must be construed in a pragmatic mam1ier.
It cannot be construed in such a way so as to negate the right of party to
obtain bail which is otherwise a valuable right for all practical purposes. F
We may notice that in Dadu alias Tulsidas v. State of Maharashtra
[2000] 8 SCC 437, this Court struck down Section 37 of the 1985 Act in terlns
whereof power to suspend sentence by an appellate court was taken away.
This Court, however, opined that Section 37 of the 1985 Act would ibe
applicable. On the aforementioned backdrop we may analyse the requirements G
of the provisions contained in Section 3 7 of the 1985 Act.

In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr.
[2005 5 sec 294, the Jaw has been stated in the following terms:

"The wording of Section 21(4), in our opinion, does not lead to H
856 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A the conclusion that the court must arrive at a positive finding that the
applicant for bail has not committed an offence under the Act. If such
a construction is placed, the court intending to grant bail must arrive
at a finding that the applicant has not committed such an offence. In
such an event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the intention
B of the legislature. Section 21(4) of MCOCA, therefore, must be
construed reasonably. It must be so construed that the court is able
to maintain a delicate balance between a judgment of acquittal and
ccmviction and an order granting bail much before commencement of
. trial. Similarly, the court will be required to record a finding as to the
c possibility of his committing a crime after grant of bail. However, such
an offence fo futuro must be an offence under the Act and not any
other offence. Since it is difficult to predict the future conduct of an
accused, the court must necessarily consider this aspect of the matter
having regard to the antecedents of the accused, his propensities and
the nature and manner in which he is alleged to have committed the
D offence.

It is, furthennore, trite that for the purpose of considering an application
for grant of bail, although detailed reasons are not necessary to be
assigned, the order granting bail must demonstrate application of
mind at least in serious cases as to why the applicant has been
E granted or denied the privilege of bail.

The duty of the court at this stage is not to weigh the evidence
meticulously but to arrive at a finding on the basis of broad
probabilities. However, while dealing with a special statute like MCOCA
having regard to the provisions contained in sub-section (4) of Section
F 21 of the Act, the court may have to probe into the matter deeper so
as to enable it to arrive at a finding that the materials collected against
the accused during the investigation may not justify a judgment of
conviction. The findings recorded by the court while granting or
refusing bail undoubtedly would be tentative in nature, which may not
G have any bearing on the merit of the case and the trial court would,
thus, be free to decide the case on the basis of evidence adduced at
the trial, without in any manner being prejudiced thereby."

The law to the same effect has been laid down in Babanrao Tukaram
Ranjabe v. State of Maharashtra JT (2006) 11 SC 33.
H
STATE OF UTTARANCHAL v. RAJESH KUMAR GUPTA [S.B.SINHA J. 1857

Reliance has been placed by the learned Additional Solicitor General of A
India on Collector of Customs, New Delhi vs. Ahmadalieva Nodira [2004] 3
SCC 549 wherein this Court stated:

"7. The limitations on granting of bail come in only when the
question of granting bail arises on merits. Apart from the grant of
opportunity to the Public Prosecutor, the other twin conditions which B
really have relevance so far as the present accused-respondent is
concerned, are: the satisfaction of the court that there are reasonable
grounds for believing that the accused is not guilty of the alleged
offence and that he is not likely to commit any offence while on bail.
The conditions are cumulative and not alternative. The satisfaction C
contemplated regarding the accused being not guilty has to be bas~d
on reasonable grounds. The expression "reasonable grounds" means
something more than prim a facie grounds. It contemplates substanti al
1

probable causes for believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated in the provisiqn
requires existence of such facts and -::ircumstances as are sufficient in D
themselves to justify satisfaction that the accused is not guilty of the
alleged offence. In the case at hand the High Court seems to ha~e
completely overlooked the underlying object of Section 37."

This Court, thus, therein was required to consider the merit of the
prosecution case against the accused therein and on consideration there<!>f E
opined that the rigours of Section 37 of the Act are applicable.

This Court, however, in the said decision was not concerned with th'e
construction of Section 8 of the 1985 Act. It does not and did not lay dowµ
a law that although the provisions of the 1985 Act shall prima facie not apply,·
no bail can be granted. F
In Sajan Abraham v. State of Kera/a [2004] 4 SCC 441, this court held

"Learned counsel for the State submitted that unless the appellant
held a permit granted under Rule 66 of the NDPS Rules, he cannot G
claim benefit under the provisions of that rule. We find no substance
in the argument because having regard to the provisions of Section
9 of the NDPS Act under which the Rules have been framed, the
Central Government is empowered by the Rules to permit and regulate
the matters mentioned therein. Rule 66 itself permits possession of H
858 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A psychotropic substance below a specified quantity and subject to the
conditions stated therein. Thus if the possession of psychotropic
substance is ju~.tified under the said rule, no separate permit is required
to be issued to the person possessing such psychotropic substance
because the rule itself permits possession of such psychotropic
substance to the extent mentioned in the rule and subject to the
B conditions laid down therein."

(See also Hussain v. State of Kera/a [2000] 8 SCC 139.)

In the instant case, we are of the opinion that Section 37 of the 1985
Act would prima facie has no application in view of the exception contained
C in Section 8 thereof read with the Rules.~

The views which we have taken appear also to have been taken by the
High Court of Delhi in Rajinder Gupta v. The State 123 (2Q05) DLT 55 as also
the Bombay High Court in Pradeep Dhond v. Intelligence Officer, Narcotic
D & Control Bureau, Ballard Estate and Anr. [Criminal Application No. 6787
of 2005] disposed of on 7th February, 2006 by the Bombay High Court.

Respondent is charged with a grave offence. It was, therefore, all the
more necessary to apply the principles of law strictly. A person cannot be
denied the right of being released on bail unless a clear case of application,
E of the 1985 Act is made out. He might have committed an offence which
repulses out morality. He may ultimately be found guilty even for commission
of an offence under the 1985 Act; but in a case of this nature when prima
facie the provisions of the said Act are not found applicable particularly 'in
view of the fact that he has been in custody for a period of more than two
years now, in our opinion, it is not a fit case where we should exercise our
F discretionary jurisdiction under Article 136 of the Constitution of India.

For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.

v.s.s. Appeal dismisseed.
G