High Court of KeralaSingle Judge2012-10-16Bail application dismissed.

Thomas Varghese v. The State of Kerala

Case / Petition Number:B.A. No. 6034 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2012-10-16
Court Decision / Holding: Bail application dismissed.
Final Disposition: Bail application dismissed.

Parties to the Case

Appellants / Petitioners

Thomas Varghese

Respondents

The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R.T. Pradeep

Counsels for Respondents

• Public Prosecutor, Sri. Rajesh Vijayan

Case Synopsis & Summary

This bail petition arises under the Narcotic Drugs and Psychotropic Substances Act (NDPS) before the Kerala High Court. The petitioner, Thomas Varghese, was arrested on 19 May 2012 in connection with 38 ampules of Buprenorphine seized from him and seeks statutory bail, arguing the seized quantity is a small quantity under NDPS and that the 180-day period for filing a charge sheet under Section 36A should not apply. He further contends that his custody since May 2012 is unjustified. The court traces the arguments to Salam v. Union of India, arguing that the form in which the psychotropic substance is contained and its weight should govern whether a quantity is small or commercial; however, the court notes Salam does not lay down a substantive principle. The judgment undertakes a detailed review of NDPS definitions (Section 2(xxiii) and 2(xx)) and the concept of “preparation” as including solutions or mixtures containing the substance. It references the 1996 Ministry of Finance notification and the Note to the 2009 notification, and then relies on the decisions in Shaji v. State of Kerala and Binu v. Union of India to hold that Buprenorphine dissolved in water is a preparation and that the weight of the entire contents of the ampules must be counted. On this basis, the seized quantity is found to be 76 g, a commercial quantity, justifying the denial of bail. The court emphasizes the societal harms of narcotics and dismisses the petition, upholding the State’s position."

Provisions of Law Cited

Section 439 of the Criminal Procedure Code (CrPC)Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985Section 2(xxiii) of the NDPS ActSection 2(xx) of the NDPS ActClauses (viia) and (xxiiia) of section 2 of the NDPS ActNote to notification introduced with effect from 18.11.2009Ministry of Finance, Department of Revenue Notification S.O. 527(E) dated 16.7.1996

Legal Doctrines & Maxims

Preparations of psychotropic substances are treated on par with psychotropic substance under Section 2(xxiii).
Weight of the psychotropic substance in the form in which it is obtained has to be determined; i.e., the weight of the entire contents if the substance is in preparation form.
A solution or mixture containing the substance qualifies as a 'preparation' under Section 2(xx).
The ‘small quantity’ vs ‘commercial quantity’ distinction is determined by statutory definitions and notifications, including the 1996 notification and its 2009 note.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the 38 ampules of Buprenorphine amount to a small quantity when the weight is correctly calculated by considering the preparation as a whole rather than only the drug content. Citing Salam v. Union of India, he argues that the form in which the psychotropic substance is contained should not govern the weight calculation. He urges that the weight of the psychotropic substance alone, or the weight of the solution, depending on the interpretation, would reduce the quantity to a small category and thus render him eligible for statutory bail under the 180-day window or for bail on human grounds due to prolonged custody. The defense also references earlier orders (B.A.5124/2012) and contends that the decision in Salam lacks binding force given undefined definitions and the Note to the notification. He seeks bail or an extension of the statutory window based on the claim that the quantity is not a commercial one.

Contentions of Respondents

The State contends that the seized material constitutes a commercial quantity. It argues that Buprenorphine dissolved in water is a ‘preparation’ under Section 2(xxiii) and thus the total content, not merely the drug, must be weighed. The court should ignore the soft line of argument from Salam since the NDPS definitions and the 1996 notification, along with the 2009 Note, are determinative. Given a 76 g quantity (derived from weight of ampoules), the case falls squarely within a commercial quantity, triggering the 180-day time limit and justifying denial of bail. The State emphasizes the social harms of narcotics and the necessity of a stringent approach to deter drug proliferation, particularly in the context of large quantifies and public safety.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Salam v. Union of India	2008(1) K.L.T. 498	Partly Overruled / Limited	Court uses Salam as a reference point but explicitly notes that the Salam decision did not lay down a binding principle and was based on a concession; not a controlling authority for the present NDPS weight/quantity question.
Salim's case	Not specified	Mentioned Only	Cited to illustrate how earlier approaches treated form/weight issues, but the judgment does not derive binding principles from it and treats it as a comparative reference.
Binu v. Union of India	ILR 2011 (3) Kerala 135	Positive	Court accords importance to Binu’s discussion of NDPS definitions and Note; endorses the dictum that weight must reflect the entire content as a preparation.
Shaji v. State of Kerala	ILR 2004 (2) Kerala 600	Positive	Used to support the proposition that a solution of Buprenorphine is a ‘preparation’ under Section 2(xxiii) and that the weight of the entire contents should be considered for quantity classification.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P. BHAVADASAN** **TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934** **Bail Appl. No. 6034 of 2012 ()** **-----------------------------(FILED UNDER SECTION 439 OF THE CRIMINAL PROCEDURE CODE IN CRIME NO.3/2012 (NDPS) OF CHENGANNUR EXCISE RANGE)** **PETITIONER/ACCUSED:** **------------------** **THOMAS VARGHESE AGED 21 YEARS, S/O. ANIL MATHEW, KOCHUPARAMBIL VEEDU MUNDIAPALLY MURI, KAVIYOOR, THIRUVALLA.** **BY ADV. SRI. R.T. PRADEEP** **RESPONDENT:** **----------** **THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08-10-2012, THE COURT ON 16.10.2012 PASSED THE FOLLOWING:** sp ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - ## B.A. No. 6034 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of October, 2012. ## **ORDER** Drawing inspiration from the decision reported in **Salam v. Union of India** (2008(1) K.L.T. 498), the petitioner, from whom 38 ampules of Buprenorphine was seized, claims that the quantity of Buprenorphine seized from him qualifies only to be a small quantity, and the time frame contained in Section 36A for the investigating agency for filing charge sheet does not apply, the petitioner claims statutory bail. In the alternative, it is pointed out that he has been in custody from 19.5.2012 onwards and his continued custody is unjustified and unwarranted. 2. The petitioner was found to be in possession of 38 ampules of Buprenorphine commonly known as Lupigesic. He was arrested on 19.5.2012 and since then he has been in custody. Earlier, the petitioner B.A.6034/2012. 2 has moved this court by way of B.A.5124 of 2012 for the very same relief which was declined by this court by order dated 20.7.2012. In the said order, it was observed that each ampule of Buprenorphine seized from the petitioner weighs 2 gms., and if that be so, the total quantity seized from the petitioner is a commercial quantity and therefore, provisions of Section 36A apply and the investigating agency has 180 days to submit its charge sheet. 3. The grievance of the petitioner is that this court observed so in the above order without taking note of the decision reported in **Salam's case** (supra), wherein, it was held that 1 gm. of Buprenorphine is equivalent to 3333.33 milliliters when it is in the liquid form for the purpose of small quantity and 20 gms. is equivalent to 66666.60 milliliters. In the said case, it was held that even though the petitioner was found to be in possession of 1675 ampules of Buprenorphine Tidigestic, it was a small quantity. Accordingly, it is contended that psychotropic substance has to be segregated from the solution and its weight alone can B.A.6034/2012. 3 be taken for ascertaining if it is small quantity or commercial quantity. In other words, if one mg. of a psychotropic substance is converted into a preparation, its weight can still be only 1 mg. and not the weight of the substance and its medium. 4. A reading of the decision reported in **Salim's case** (supra) shows that this court was mainly guided by the concession by the Union of India and there was no adjudication as to the question concerning the form in which the psychotropic substance is contained and how the weight of the same is to be determined. Neither the definition of psychotropic substance nor preparation was considered. So also the Note to notification added w.e.f. 18.11.2009. That issue came up for consideration in the decision reported in **Binu v. Union of India** (ILR 2011 (3) Kerala 135). Before going into **Binu's case** (supra), it may be useful to refer certain definitions under the NDPS Act. 5. Section 2(xxiii) of the Act defines 'psychotropic substance' as follows: B.A.6034/2012. 4 _“ “psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.”_ 'Preparation' is defined in Section 2(xx) as follows: _“ “preparation”, in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances.”_ 6. Going by the definitions referred to above, it is quite evident that preparations of psychotropic substances are also treated on par with psychotropic substance. Therefore, it follows that the weight of the psychotropic substance in the form in which it is obtained has to be determined. 7. One may now refer to the notification issued by the Ministry of Finance, Department of Revenue dated B.A.6034/2012. 5 16.7.1996 which specifically mentions what constitute small quantity and commercial quantity. The opening portion of the Notification reads as follows: _“In exercise of the powers conferred by clauses (viia) and (xxiiia) of section 2 of the Narcotic Drugs and Psychotropic substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O.527(E) dated 16[th] July 1996, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies the quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the purposes of the said clauses of that section.”_ A reading of the definition and specification in the notification can leave one in no doubt that the quantity specified in the table as per the notification takes in B.A.6034/2012. 6 preparation which fall within the ambit of the definition of 'psychotropic substance'. 8. As already noticed, the decision reported in **Salam's case** (supra) does not lay down any principle and that decision was rendered based on a concession given by the respondents. Further, the said decision did not refer to the definitions in the NDPS Act nor did it take note of the Note to the notification which was introduced with effect from 18.11.2009. 9. The decision in **Binu's case** , the definition under the NDPS Act and also the implication of the Note was considered in detail and after considering the various decisions on the point, this court approved the dictum laid down in **Shaji v. State of Kerala** (I.L.R.2004(2) Kerala 600), wherein it was held that Buprenorphine dissolved in water being a solution is a preparation of psychotropic substance within the meaning of Section 2(xxiii) of the act and therefore the weight of the entire contents of the ampules has to be taken into account for deciding whether B.A.6034/2012. 7 the seized material is small quantity or commercial quantity. In the light of the decision in **Binu's case** , it follows that the view taken by this court in the order dated 20.7.2012 that weight of one ampule is 2 gms. is correct and justified. If that be so, the quantity seized from the possession of the petitioner comes to 76 gms., which is a commercial quantity. If that be the case, the investigating agency has got 180 days to file its final report. 10. Petitioner has been in custody from 19.5.2012 and six months' period has not so far elapsed and therefore, the claim of the petitioner for statutory bail is only to be rejected. 11. Coming to the alternative contention, that too is clearly without merits at all. A large quantity of psychotropic substance has been seized from the petitioner and he deserves no sympathy at all. The drug menace is on a steady increase and it has social impacts. When this is brought to the notice of this court, a firm and strict view has to be taken in this regard. Considering the facts and B.A.6034/2012. 8 circumstances of the case, it is felt that this is not a fit case where the petitioner can be granted bail now. This application is accordingly dismissed. **P. BHAVADASAN, JUDGE** sb.