- (1.) 1. Heard learned counsel for the parties.
(2.) BRIEF facts of the case are that accused/applicant- Dr. R. K. Gupta, is Director of Neeraj Clinic, Rishikesh. In said Clinic, it is alleged that in the name of treatment of epilepsy, banned drugs under Narcotic Drugs and Psychotropic Substances Act, 1985, were being stored and sold. On raid in said clinic, huge amount of such drugs were al leged to have been found. The banned drugs included Chlordiazepoxide and Phenobarbital. These two drugs are mentioned in the Schedule of the Nar cotic Drugs and Psychotropic Sub stances Act, 1985 (for brevity herein after NDPS Act ). A crime No. 303 of 2004, appears to have been registered against the accused/applicant under Section 8/22 of NDPS Act and under Section 147, 224, 323, 504, 506, 353, 420 and 427 of Indian Penal Code and Section 7 of Criminal Law Amendment Act read with Section 4 of Drugs Magic Remedies (Objectionable Advertisement) Act. Accused/applicant appears to have been arrested in connection with the aforesaid crime on 3/4 Octo ber, 2004. The first bail application (No. 768 of 2004) moved before this Court was rejected by another bench of this Court on 13-10-2004, on the ground that the clinic was not exempted under Rule 67 (2) of N. D. P. S. Rules. In that round of litigation, as mentioned in the affidavit accompanying this bail appli cation, S. L. P. (Criminal) No. 1 of 2005 was moved by the accused before the Supreme Court, which was disposed of with following order : Learned Senior Counsel appearing for the petitioner seeks permission to withdraw the Special Leave Petition. Permission sought for is granted. Special Leave Petition is dismissed as withdrawn. However, the peti tioner would be at liberty to move Trial Judge within a reasonable time. In case such application is filed, the same shall be considered on merits in accordance with law. " , It appears that thereafter fresh bail application was moved before the trial court and same was again dis missed by Vth F. T. C. /additional Ses sions Judge, Dehradun on 20-05-2005. Against said order, present bail application was filed before this Court, which was allowed on 28-09-2005, mainly on the ground that ac cused/applicant, an Ayurvedic Doc tor who runs the clinic is in jail for about one year. This time S. L. P. (Criminal) No. 53445 of 2005, ap pears to have been filed before the Supreme Court by the State on the basis of which criminal appeal No. 1520 of 2005, was registered. Hon'ble the apex court, in said ap peal, passed the following order on 14-11-2005 :- "leave granted. We have heard learned counsel ap pearing for the appellant and the re spondent. Mr. K. T. S. Tulsi, learned Sr. Counsel appearing for the respondent, urges that the issue whether the provisions of Section 37 of N. D. P. S. Act 1985, read with N. D. P. S. Rules, 1985, are not applicable to the accused, has not been considered by the High Court. According to him, the ac cused employs a large number of qualified medical graduates and, therefore, the accused was justified in prescribing scheduled drugs as well as stocking them for being pre scribed to the patients, even though the accused is an Ayurvedic Practi tioner. We are not in a position to appreci ate any of these contentions, as the High Court has not adverted to any of these contentions or the applica bility of Section 37 of NDPS Act read with Rules there under. In the result, we set aside the im pugned order, revive the criminal bail application No. 917 of 2005 before the High Court and request the High Court to dispose of the said bail application after hearing the parties and considering the con tentions urged. Pending the hearing of bail applica tion, the respondent/accused shall not be released. The High Court may dispose of the matter expeditiously. The appeal is allowed accordingly. " In view of the above directions of the apex court, this Court has to spe cifically mention what is opines as to applicability of Section 37 of NDPS Act, 1985. Section 37 of said Act, reads as under : "37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ). (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 24 or sec tion 27a and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (1) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor op poses the application, the court is satisfied that there are reason able grounds for believing that he is not guilty of such offence and that he is not likely to com mit 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, 19/3 (2 of 1974) or any other law for the time being in force, on granting of bail. " It may be mentioned here that Sec tion 19 provides punishment for culti vation of opium", Section 24 relates to offence drugs/psychotropic substances supplied outside India and Section 27a pertains to financing and harbouring persons engaged in the illicit traffic of drugs. The present case is covered un der none of these Sections.
(3.) IT may be mentioned that Pub lic Prosecutor was given due opportu nity to oppose the bail and is heard at length. Now, this Court has to satisfy if there are reasonable grounds for believ ing that the applicant / accused is or is not guilty of such offences, as are men tioned in Section 37 and that if he is not likely to commit any offence while on bail. Offence under Section 8 of NDPS Act, 1985, is punishable under its Section 22. Section 8 prohibits the possession and sale of Narcotic Drugs and Psychotropic Substances, except for medical or scientific purposes and in the manner and to the extent pro vided by the provisions of this Act or Rules. Learned counsel for the appli cant argued that Section 22 is not the Section mentioned in Section 37. From the bare reading of the Section, it is clear that the expression "and also for offences involving commercial quan tity" mentioned in the Section is to be read with offences either Section 19 or 24 or 27a. As such it cannot be said that Section 37 (b) is applicable to this case. Merely for the reason that offence under Section 8/22 is cognizable under Section 37 (a) of the Act, bail cannot be refused in each and every case. Learned counsel for the ac cused/applicant, argued that the drugs Chlordiazepoxide and Phenobarbital were being prescribed by the qualified Doctors in the clinic of the applicant for medical purposes, as such no offence against the accused/applicant can be said to have been made out under NDPS Act. It is further argued that the drugs recovered were the scheduled H-drugs and the applicant has falsely been implicated in the case. No final opinion can be given on this issue, as it would affect the trial. But for the pur poses of bail, it is sufficient to mention that applicant, is a registered medical practitioner as Ayurvedic doctor, but he had no license to prescribe, store, or sell the banned drugs, that too in such a huge quantity.;