Mumbai, January 2, 2019 – In a significant ruling that provides clarity on the classification of codeine-based cough syrups under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the Special Court for NDPS Act cases in Greater Bombay today granted bail to Jayalaxmi Bayanivel Orondodaur. She was arrested in connection with the seizure of Phencyrex cough syrup bottles containing Codeine Phosphate.

Orondodaur was apprehended on November 28, 2018, in C.R. No. 61/2018, registered at ANC, Azad Maidan, Mumbai, for alleged violations of Sections 8(c) read with 22 and 29 of the NDPS Act. The prosecution’s case stated that during a patrolling duty, officers found Orondodaur along with two associates, Firoza Khan and Madina Shaikh, in suspicious circumstances. A search of Orondodaur’s baggage allegedly yielded 28 Phencyrex cough syrup bottles, totaling 5.6 grams of Codeine Phosphate. Similarly, 41 bottles (8.2 grams Codeine Phosphate) were found with co-accused Madina, and 75 Corex bottles (15.2 grams Codeine Phosphate) with Firoza Khan.

Mr. D. Mishra, the learned advocate for Orondodaur, argued that the quantity of Codeine Phosphate, if calculated correctly, did not cross the limit of a commercial quantity. He contended that the 5.6 grams of Codeine Phosphate allegedly seized from Orondodaur was below the commercial quantity, therefore making the stringent provisions of Section 37 of the NDPS Act inapplicable. Mr. Mishra cited judgments from the Gauhati High Court (Shahabuddin and another v/s. State of Assam, 2012) and the Himachal Pradesh High Court (Ankush Chauhan v/s. State of H.P., 2017), which emphasized considering only the actual quantity of the narcotic/psychotropic substance, not the entire mixture, when determining commercial quantity. He further asserted that his client had deep roots in society and would abide by any court-imposed conditions.

The prosecution, represented by Ld. APP Mr. Panjwani, contested the bail, arguing that as per a November 18, 2009, notification, the “entire mixture” of the Narcotic Drug or psychotropic substance should be considered, which, in this case, would amount to a commercial quantity. He also stated that Orondodaur possessed the cough syrup without valid documents and expressed apprehension that she might engage in similar activities or abscond if released on bail.

After careful consideration of both sides’ submissions and judicial precedents, His Honour the Special Judge (NDPS) Shri U. M. Mudholkar referenced several key judgments, including Shahabuddin and another v/s. State of Assam, Micheal Raj v/s. Intelligence officer of NCB (2008), and Sayyad Aalam v/s. State of Assam (2011). The court particularly relied on a recent observation by the Hon’ble Punjab & Haryana High Court in Rajveer Singh @ Raju v/s. State of Punjab (2018), which explicitly stated: “In case of a mixture/solution containing neutral or non-psychotropic substance as well as the narcotic/ psychotropic substance, it is only the quantity of such narcotic/ psychotropic substance present in such mixture/solution; which is to be taken into counting for the purpose of determining the ‘commercial quantity’ of such narcotic/ psychotropic substance. The neutral solution or non-psychotropic substance is not to be counted towards the commercial quantity of said narcotic psychotropic substance present in mixture/solution.”

The court noted that the prosecution failed to cite any contrary judgment. Applying this established legal principle, Judge Mudholkar concluded that if only the quantity of Codeine Phosphate in the 28 bottles seized from Orondodaur (5.6 grams) is considered, it is below the “small quantity” threshold of 10 grams as per entry no. 28 of the NDPS Act table, where 1 Kg and above is deemed commercial quantity.

Furthermore, the court observed that Orondodaur has been in custody since November 28, 2018, and by this time, the investigation, apart from the Chemical Analyzer (CA) certificate, would likely be complete. The judge found “no likelihood of tampering with the evidence or otherwise,” and stated that “nothing is to be recovered or discovered on pointing out of the applicant.” The court also highlighted that the trial would take a considerable amount of time, making it undesirable to keep the accused incarcerated until then. With no evidence or allegations of prior criminal antecedents against the applicant, and to minimize the chance of absconding, the court deemed further detention unwarranted.

Consequently, the court granted bail to Jayalaxmi Bayanivel Orondodaur. She will be released on a Personal Recognizance (P.R.) Bond of ₹75,000/- with one or two sureties of the like amount.

The bail is subject to the following conditions:

• She shall not directly or indirectly dissuade any prosecution witnesses from deposing in court or tamper with prosecution evidence in any way.
• She shall furnish her permanent residential address with documentary evidence (such as Aadhaar Card, Ration Card, or PAN Card) and her cell number.

The bail application has been disposed of accordingly.