Mumbai, Maharashtra – In a significant ruling that delves into the calculation of drug quantities in pharmaceutical preparations, a Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, at Gr. Bombay, has granted bail to two individuals accused of possessing 1800 bottles of Recrox-T cough syrup containing Codeine Phosphate. Mohanlal Parasnath Pandey, 60, and Gyanprakash Chandrashekhar Yadav, 34, were arrested on November 28, 2018, by the Anti Narcotic Cell (ANC), Azad Maidan Unit, Mumbai, under Sections 8(c) read with 22(c) and 29 of the NDPS Act.

The bail application (BA No. 920 of 2018) was heard by Special Judge (NDPS) Shri U. M. Mudholkar, who delivered the oral order on January 7, 2019.

The Core Dispute: Quantity Calculation

The prosecution alleged that the 1800 bottles of Recrox-T, containing Codeine Phosphate, amounted to a commercial quantity, thereby invoking the stringent provisions of Section 37 of the NDPS Act, which makes bail difficult to obtain. They argued that, as per a notification dated November 18, 2009, the entire mixture of the Narcotic Drug or Psychotropic Substance should be considered when determining the quantity. The prosecution also noted a previous NDPS Act offense registered against applicant Gyanprakash Yadav as a ground for rejection, emphasizing the societal impact of such addictions.

However, the defense, led by Advocate Ms. Suvidha Patil, countered this argument, asserting that if the Codeine Phosphate in the cough syrup was calculated properly, it would fall below the commercial quantity threshold, thus making Section 37 of the NDPS Act inapplicable. Ms. Patil relied heavily on several judicial precedents, including:

• Shahabuddin and another v. State of Assam (2012 (3) GAU LT 440): This judgment, along with Micheal Raj v. Intelligence officer of NCB (2008 5 SCC 161) and Sayyad Aalam v. State of Assam (2011 Cr.L.J. 3140), established a methodology for calculating the actual quantity of the narcotic substance within a mixture.
• Ankush Chauhan v. State of H.P. (Cr.M.P.(M) No. 432/2017 decided on April 25, 2017): This case further supported the principle of considering only the exact quantity of Codeine Phosphate in the syrup.
• Rajveer Singh @ Raju v. State of Punjab (CRM-M-35080-2018 decided on August 12, 2018): This recent judgment from the Punjab & Haryana High Court 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.”

Court’s Finding and Decision

Special Judge Mudholkar carefully considered the submissions and the cited judgments. The court found that the prosecution had failed to cite any counter-judgment that would lead to a different conclusion regarding the calculation of the drug quantity in a mixture.

Applying the methodology established in the cited precedents, the court calculated the total quantity of Codeine Phosphate in the 1800 Recrox-T bottles. Each 100 ml bottle of Recrox-T is generally understood to contain 200 mg of Codeine Phosphate. Therefore, 1800 bottles would contain 1800 x 200 mg = 360,000 mg, which equates to 360 grams.

As per Entry No. 28 of the NDPS Act table, a commercial quantity of Codeine is 1 kg (1000 grams) and above. Since the calculated quantity of 360 grams is significantly less than 1 kg, the court determined that the quantity of Codeine Phosphate seized was “non-commercial in nature.” This finding rendered Section 37 of the NDPS Act inapplicable, removing the stringent bar on bail.

The court further noted that the applicants had been in custody since their arrest on November 28, 2018, and that the investigation was likely largely complete, with only the Chemical Analyst (CA) certificate pending. Therefore, there was little likelihood of tampering with evidence or absconding. While acknowledging the criminal antecedents alleged against applicant No. 2, the court stated that simply on that count, bail could not be rejected, and measures could be imposed to minimize the chance of abscondance.

Bail Granted with Conditions

In light of these findings, Special Judge Mudholkar concluded that the application deserved to be allowed. The court imposed stringent conditions to secure the prosecution’s interest:

1. Bail Bond: The applicants, Mohanlal Parasnath Pandey and Gyanprakash Chandrashekhar Yadav, are to be released on bail upon each executing a Personal Recognizance (P.R.) Bond of Rs. 1,00,000/-, with one or two sureties in the like amount.
2. No Witness Tampering: The applicants shall not directly or indirectly dissuade any prosecution witnesses from deposing in court or tamper with prosecution evidence.
3. Residential Proof: The applicants shall furnish their permanent residential address with documentary evidence (such as Aadhaar Card, Ration Card, or PAN Card) and their cell numbers.

The bail application was accordingly disposed of.