George Jojo Thomas v. Circle Inspector of Police, Thiruvalla Police Station, Pathanamthitta District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **SATURDAY, THE 17TH DAY OF NOVEMBER 2012/26TH KARTHIKA 1934** **Bail Appl..No. 7922 of 2012 ()** **-----------------------------CRIME NO. 737/2012 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT -------------** **PETITIONER/1ST ACCUSED (IN CUSTODY) :** **---------------------------------------------------------------** **GEORGE JOJO THOMAS, AGED 40, S/O.THOMAS K. GEORGE, KATTAPPURAM VEEDU, NEAR SCS THIRUVALLA, PATHANAMTHITTA.** **BY ADVS.DR.S.GOPAKUMARAN NAIR (SR.) SRI.M.CHANDRA BOSE SRI.A.RAJASIMHAN** **RESPONDENT/INVESTIGATING OFFICER :** **-------------------------------------------------------------** **CIRCLE INSPECTOR OF POLICE, THIRUVALLA POLICE STATION PATHANAMTHITTA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY PUBLIC PROSECUTOR SRI. V.S. SREEJITH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08-11-2012, THE COURT ON 17-11-2012 PASSED THE FOLLOWING:** **Mn** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 7922 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of November, 2012. ## **ORDER** Petitioner is the first accused in Crime No.737 of 2012 of Thiruvalla Police Station, who is alleged to have committed offences punishable under Section 20(b) and (c) of N.D.P.S. Act. 2. There are three accused persons in the case. The allegation is that the third accused, who had 270 ampules of Buprenorphine injection IP Lupigesic of 2 mls. each entrusted the same to the petitioner, and on 22.5.2012 at 18.00 hours it was recovered from the steel almarah in the house of the first accused. He was arrested and remanded to custody from the said date onwards. 3. The petitioner would say that he is innocent and has been falsely implicated. According to him, the allegations are totally false. He had nothing to do with the so-called seized contraband article. At any rate, it is B.A.7922/2012. 2 contended that he has been in custody from 23.5.2012 and considering the quantity of the psychotropic substance seized, which according to the petitioner is less than the commercial quantity, his continued detention is unjustified. He therefore seeks bail. 4. Learned Public Prosecutor opposed the petition. It was pointed out by him that a large quantity of psychotropic substance was recovered from the possession of the petitioner and going by the materials now available, it cannot be said that he is innocent. The quantity of psychotropic substance seized from the possession of the petitioner being much more than the commercial quantity, the claim of the petitioner that his continued detention is illegal cannot be countenanced. 5. Learned counsel appearing for the petitioner placed considerable reliance on the decision reported in **Micheal Raj v. Intelligence Officer** (2008(2) K.L.T. 34 (SC)) and contended that for determining the quantity of the psychotropic substance in the solution, the quantity of B.A.7922/2012. 3 psychotropic substance actually present in one ampule alone can be taken and the total weight of the ampule cannot be taken for determining the quantity of the psychotropic substance. It is also contended that Note to the notification specifying the small quantity and commercial quantity cannot come to the help of the investigating agency. By introducing a Note which is in exercise of the delegated legislation, neither the legislature nor the executive can get over the decision of the Apex Court. If, according to the learned counsel, the quantity of psychotropic substance is determined in each ampule, it can be seen that the total quantity of Buprenorphine seized from the possession of the petitioner is far less than the commercial quantity and therefore the period made mention of under Section 36A sub-section (4) will have no application. 6. Learned Public Prosecutor on the other hand relied on the decision reported in **Binu v. Union of India** (ILR 2011(3) Kerala 135) and contended that in the said B.A.7922/2012. 4 decision, the decision relied on by the learned counsel for the petitioner was considered in detail and it was found that in view of the introduction of the Note to the notification concerned, the principle laid down in **Micheal Raj's case** (supra) can no longer apply. Even otherwise, according to the learned Public Prosecutor, going by the definition of the psychotropic substance under the Act, it is clear that the weight of the whole ampule will have to be taken into consideration. According to the learned Public Prosecutor, the notification is only clarificatory and that the position is very clear. Learned Public Prosecutor relied on an unreported decision of this court dated 16.10.2012 in **B.A.6034 of 2012** wherein an identical question was considered and it was held that it is the weight of the contents of an ampule that have to be taken into consideration and not the weight of the psychotropic substance as such which has to be segregated from the solution in which the psychotropic substance is dissolved. B.A.7922/2012. 5 7. This court had occasion to consider the claim of the nature put forward by the petitioner on two occasions. One is the decision in **Binu's case** (supra). The said decision considered this matter in considerable detail and came to the conclusion that in view of the Note introduced to the notification, the position becomes very clear and the weight of the ampule as such has to be taken into consideration and not that the psychotropic substance which is to be segregated from the rest of the material and its weight alone has to be determined. The said decision noticed that the Note to notification dated 18.11.2009 was introduced after the decision in **Micheal Raj's case** (supra) and therefore the decision in **Micheal Raj's case** cannot be held to be no longer good law. 8. The contention of the learned counsel for the petitioner that the Note cannot annul the judgment of the Apex Court, since it is only an executive order. The executive cannot by way of a Note overcome the decision of the Apex Court. B.A.7922/2012. 6 9. In fact, the above contention was considered in the decision reported in **Binu's case** (supra). In paragraph 11 it was held as follows: “What now arises for consideration is the question as to whether Note 4 inserted on 18.11.2009 to the Notification dated 19.11.2001 amounts to legislative overruling of Micheal Raj's case and related rulings of the Apex Court. It is well settled that the Executive or the Legislature can render a judicial decision ineffective by removing or altering or neutralizing the legal basis of the judgment. Tanuja's case cited by the petitioner itself clarifies this position. The purpose of Note 4 introduced as per Ext.P3 notification is to remove, alter or neutralize the legal basis of the judgments. This aspect of the law has been further elucidated in S.S.Bhola v. B.D. Sardana and Virendar Singh Hooda v. State of Haryana.” 10. A contention was taken on behalf of the petitioner that there is nothing to show that even assuming that the Note is valid, it is issued in compliance with Section B.A.7922/2012. 7 77 of the Act and therefore Note cannot be a valid piece of law. 11. It is true that notification, going by Section 77, under clause (viia), clause (xi), clause (xxiiia) of Section 2, Section 3, Section 7A, Section 9A and clause (a) of section 27 has to be laid before the Parliament. May be that a Note which forms part of the notification which is introduced later may also be placed before the Parliament. Since no specific contention is taken in this regard, the issue does not arise for consideration. 12. In the notification issued under Section 2 (xxiii) of the NDPS Act specifying the list of psychotropic substance entry No.92 is Buprenorphine. It therefore follows that Buprenorphine is treated as a psychotropic substance. 13. An identical question was considered in B.A.6034 of 2012 which was disposed of by order dated 16.10.2012. This court noticed the definition psychotropic substance as contained in Section 2(xxiii), preparation as B.A.7922/2012. 8 contained in Section 2(xx) of the Act and came to the conclusion that from the definition, it is quite evident that the preparations of psychotropic substances are also treated on par with psychotropic substance. As rightly pointed out by the learned Public Prosecutor, Note is only clarificatory. Even without the Note, the position is very clear. It is therefore unnecessary to labour on the question as to whether the Note which forms part of the notification which was subsequently introduced was laid before the Parliament in compliance with Section 77 of the Act. 14. In fact in **Shaji v. Kerala State** (2004(3) K.L.T.270) it was held that Tidigestic, a solution of Buprenorphine is a preparation of psychotropic substance within Section 2(xxiii) of the Act and therefore the entire contents of the ampule has to be taken into consideration for deciding whether the total quantity seized exceeds the small quantity or commercial quantity as the case may be. That view was reiterated in **Binu's case** (supra). In the light of the decision in **Binu's case** (supra) and in B.A.6034 9 B.A.7922/2012. of 2012, the claim put forward by the petitioner that the total quantity of psychotropic substance seized from his possession is below the commercial quantity cannot be countenanced. 15. Considering the nature of the allegations against the petitioner, the quantity of psychotropic substance seized, since the investigation is still going on, and since the drug menace is on a steady increase and causing threat to the society, it is felt that it may not be proper to release the petitioner now on bail. This application is accordingly dismissed. **P. BHAVADASAN, JUDGE** sb.