Present:

                           Mr. Justice A.K.M. Asaduzzaman

And

      Mr.Justice Md.Moinul Islam Chowdhury

                   Criminal Misc. Case No. 37461 of 2011

                                         Md. Jafar Alam

                                                 ……………Petitioner.

          -Versus-

The State

               ………….Opposite party.

                                         Mr. Probir Halder, Advocate,

                                                              ……….For the petitioner

                       Mr. Forhad Ahmed, D.A.G.

                                                   .........For the Opposite party.

                                      Heard and Judgment on 8th. May.2012.

A.K.M.Asaduzzaman,J.

 This rule was issued calling upon the opposite party to show cause as to why the accused petitioner should not be enlarged on bail in Sessions Trial Case No.223 of 2012 arising out of G.R.Case No.380 of 2011 (Teknaf) corresponding to Teknaf P.S. Case No.23 dated 13.09.2011 under Table 9 ((Kha) of Section 19(1) of the Narcotics Control Act, 1990, pending in the Court of the Sessions Judge, Cox’s Bazar.

 The prosecution case in short is that one S.I. Nilu Kanti Barua on producing the arrested accused and the seized tablets before the Teknaf Police Station, lodged an F.I.R implicating the petitioner and another as accused alleging, interalia, that on 13.09.2011 during investigation of a criminal case on receiving a secret information at about 12.30 hours, he along with his force laid an ambush in front of the Mulapara Jame Mosque under the Teknaf Police Station. Noticing their presence, the accused person tried to flee away, but they were able to catch the petitioner and on search, they recovered 3 blue coloured plastic containing 600 pcs YABA tablets weighing about 63 gm. On query, the petitioner admitted his guilt to the informant saying that the co-accused Gafur gave him those tablets. He then tried to arrest Gafur but failed.

 After arrest since the petitioner failed to get bail, he obtained the instant rule for bail.

 The learned Advocate appearing for the petitioner submits that the alleged articles are not contraband items as well as measurement of the Narcotics as shown in the FIR and the seizure list are not in accordance with law and the petitioner will get the benefit  and no YABA tablet was recovered from the control and possession of the petitioner and he is a victim of circumstances and he has got a fair chance of acquittal in this case; there is no certainty as to when the trial will commence, as such he prays for bail of the petitioner.

 The learned Deputy Attorney General appearing for the opposite party opposes the prayer for bail.

 Heard the learned Advocates of both the sides and perused the FIR, other documents annexed to the supplementary affidavit and the impugned order.

 At the midst of the hearing of this rule, this court asked for a report from the Director General (D.G.) of the Department of Narcotics Control as well as Director General (D.G.) of the Drug Administration about Yaba and Phensidyl. In the report submitted by the Director General of the Drug Administration, it has been stated as follows:

 “Phensidyl is a cough linctus, a liquid preparation like syrup (which contains glucose in high concentration that used for better taste. Its active ingredients include Codeine phosphate. It also contained pseudoephedrine and chlorpheniramine maleate. The syrup is illegal in Bangladesh but not in India.”

Composition:   

Each 5 ml. contains the following

Promethazine Hydrochloride  3.6 mg

Codeine Phosphate    9.0 mg

Ephedrine Hydrochloride   7.2 mg

 Thus in view of the above report, phensidyl is a kind of medicine and is used as cough linctus syrup.

THE DRUGS (CONTROL) ORDINANCE 1982 (Ordinance No VIII of 1982) prohibits the manufacture, import, distribution or sale of the said phensidyl under section 8 of the said Ordinance along with other medicine, as shown in schedule III thereof. Phensidyl is not a Narcotics, but is a banned medicine, as prohibited by the Drugs (Control) Ordinance. Thus, the Narcotics Control Act has got no manner of application in case of a medicine like phensidyl, which is guided under the Drugs (Control) Ordinance.

Let us now refer to some of the relevant provisions of the Drug (Control) Ordinance. In the preamble of the said Ordinance it has been mentioned that

“An Ordinance to Control manufacture, Import, distribution and sale of drugs.”

 Section 8 of the said Ordinance runs as follows:

(2) Notwithstanding anything contained in sub-section (1),-

(a) the medicines specified in Schedule I shall be destroyed within three months from the date of commencement of this Ordinance;

(b) the medicines specified in Schedule II may be manufactured or sold for a period of [twelve months] from the date of commencement of this Ordinance and thereafter their manufacture [, stock, exhibition and sale] shall be permitted only if they are registered after change in their formulation in accordance with the direction of the licensing authority;

(c) the medicines specified in Schedule III may be manufactured, imported, distributed and sold for a period of [eighteen months] after the commencement of this Ordinance, and thereafter there shall not be any manufacture, import, distribution [, stock, exhibition or sale] of such medicines ];

(d) the medicines specified in Schedule IV may be manufactured, distributed and sold for a period of eighteen months after the commencement of this Ordinance, and thereafter their manufacture, distribution [, stock, exhibition and sale] shall be permitted only if they are registered again with the licensing authority:

Provided that no fresh import of raw materials for the manufacture of the medicines specified in Schedule III and Schedule IV shall be permitted.]

(a) any medicine which is not registered under this Ordinance, or

(b) any medicine in contravention of the provisions of section 8, or

(c) any drug which is adulterated [, misbranded, spurious or imitated],

shall be punishable with rigorous imprisonment for a term which may extend to ten years, or with fine which may extend to two lakh Taka, or with both, and any implements used in the manufacture or sale of such medicine or drug may, by order of the Drug Court, be forfeited to the Government.

(a) an offence punishable under this Ordinance shall be non- cognizable;

(b) no Court other than a Drug Court shall try an offence punishable under this Ordinance;

(c) no Drug Court shall take cognizance of an offence punishable under this Ordinance except on a report in writing made by the licensing authority or an officer authorized by him in this behalf.

Drug Courts  23.(1) The Government may, by notification in the Official Gazette establish as many Drug Courts as it considers necessary and where it established more than one Drug court, shall specify in the notifications the territorial limits within which each one of them shall exercise jurisdiction under this Ordinance.

(2) A Drug Court consist of a person who is or has been a Sessions Judge and he shall be appointed by the Government.

(3) A Drug Court shall sit at such place as the Government may direct.

(4) A Drug court may pass any sentence authorized by this Ordinance and shall have all the powers conferred by the Code of Criminal procedure, 1898 (V of 1898), on a Court of Session exercising original jurisdiction.

(5) A Drug Court shall not, merely by reason of a change in its composition, be bound to recall and rehear any witness who has given evidence, and may act on the evidence already recorded by or produced before it.  

(6) A Drug Court shall, in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code of Criminal Procedure, 1898 (V of 1898), for the trial of summons cases by Magistrates.

(7) A Drug Court may, on application in this behalf being made by the prosecution, try an offence under this Ordinance summarily in accordance with the provisions contained in sections 262 to 265 of the Code of Criminal Procedure, 1898 (V of 1898).  

(8) An appeal from the judgment of a Drug Court shall lie to the High Court Division.

SCHEDULE III

[Sec Section 8(2) (c)]

LOCALLY MANUFACTURED DRUGS

Perusing the above provisions of law together with the Third Schedule under the Drugs (Control) Ordinance, it appears that manufacture, import, distribution and sale of drugs mentioned in the schedule thereunder is prohibited by section 8 of the said Ordinance. Section 16 of the said Ordinance prescribes the penalty for infringement of the said restriction. Sub section (b) of section 22 of the said Ordinance puts a restriction upon the other court other than the Drug Court to try an offence punishable under this Ordinance. Sub section (c) of section 22 of the said Ordinance narrates the procedure of initiation of a case under this law. Section 23 of the said Ordinance provides the constitution and function of the Drug Courts. In the premises, where it is the legislative mandate to try an offence under the Drugs (Control) Ordinance by a Drug Court with certain procedure, a trial and punishment by any other court under any other law other than Drug( Control) Ordinance is illegal and without jurisdiction. Moreover any offence under the Drugs (Control) Ordinance since are not schedule offence under the Special Powers Act, the Special Tribunal constituted under section 26 of the Special Powers Act has got no jurisdiction to try such offence.                 

 Similarly, about Yaba, the Director General of the Drug Administration submitted a report stating that;

“YABA is a combination of Methamphetamine (a powerful CNS addictive Stimulant) and Caffeine. Usually 30% Methamphetamine. Users get an intense burst of energy followed by increased activity, decreased appetite and general sense of wellbeing. Once the effects wear off, the user crases and experiences prolonged periods of sleep and depression. Long term uses of YABA produce dependency. The Methamphetamine is also used by the doctor to treat ADHD (attention deficit hyperactivity disorder) and short term obesity treatment. But since the YABA contain Methamphetamine, a schedule II substance under the controlled substance act, schedule II drugs as well as not registered drug in Bangladesh by DGDA, so it is illegal in Bangladesh and also is hazardous and injurious for human health.”  

 By way of supplementary affidavit filed by the opposite party, a certificate of analysis issued by the Chief Chemical Examiner, Department of Narcotics Control, Central Chemical Laboratory Gandria, Dhaka has been annexed, wherein a detailed description of the Drag YABA has referred to this court. The certificate reads as under:

Government of the People’s Republic of Bangladesh

Ministry of Home Affaires

Department of Narcotics Control

Central Chemical Laboratory

Gandaria, Dhaka-1204

Ref No. CCL/02                                                  dated: 16/04/2012

Certificate of Analysis

For testing of Sample of Drug given by Chemical Examiner

as per Drug Act 1990, Section 50(3).

1. Detailed description of the Drug claimed in the Sample:

  a. Trade Name  :YABA

  b. Generic Name  : Methamphetamine

2. Detailed description of Test/Analysis:

other ingredients are -

Starch

Coating agent

Vanilla flavour

Red colouring agent identified.

(Dulal Krishna Saha)                         (Md. Abu Hasan)

 Yaba by name itself is not a Narcotics under the Narcotics Control Act. The Methamphetamine, an ingredients of Yaba, is narcotics as per schedule which has been defined under section 2(b) of the Narcotics Control Act. The weight of the tablet Yaba has no manner of application with regard the conviction as well to award of sentence to an accused. The weight of methamphetamine is required to determine the punishment of an accused. 

In order to determine the sentence of the accused, determination of quantum of narcotics is very much essential. For the different quantum of the Narcotics, the law prescribes different punishment. To sustain a charge under the table as prescribed by section 19(1) of the Narcotics Control Act, the correct ascertainment of the quantum of the Narcotics is an essential factor. Under Table 9, if the quantum of the narcotics in question (here methamphetamine) is found to be upto 5 grams the sentence will range from 6 months to 3 years but in case of even a smaller fraction above 5 grams, the sentence will range from 5 years to 15 years. Since a slight variation or mistake in the measurement may lead to greater punishment, it is necessary that the actual and real quantity of the Narcotics in question be ascertained accurately and the law interpreted carefully and strictly. Any reasonable doubt on this score must go to the benefit of the accused.

According to the chemical analysis report, as quoted above, since a single tablet contains only 5.1 mg methamphetamine, near about 1000 pieces of Yaba Tablet will contain 5 grams of methamphetamine and will therefore come under Table 9(Ka) of section 19(1) of the Narcotics Control Act. More than 1000 pieces of Yaba Tablet containing above 5 grams of methamphetamine will constitute an offence under Table 9(Kha) of section 19(1) of the said Act. In any sense, before awarding conviction and sentence of any accused for possessing Yaba it is very essential to get an actual measurement of the quantum of methamphetamine that was seized or recovered from the office of the Department of Narcotics Control Laboratory.  

In the instant case, it appears that the petitioner was alleged to have been arrested along with 600 pieces of yaba Tablet on 13.9.2011 and is being detained in custody since then. By this time, he has been languishing in the jail custody for more than 8 months. Since 600 pieces of Yaba Tablet contain less than 5 grams of narcotics, for which the Legislature prescribes a minimum sentence of 6 months imprisonment, we are inclined to enlarge him on bail. Thus, we find merits in this rule.

 In the result, the rule is made absolute.

The petitioner Md. Jafar Alam, son of late Ejahar Miah may find bail on furnishing bail bond subject to the satisfaction of the learned Sessions Judge, Cox’s Bazar in S.T. (Sessions Trial) Case No. 223 of 2012 arising out of G.R, Case No. 380 of 2011 (Teknaf) corresponding to Teknaf P.S. Case No. 23 dated 13.09.2011.

The trial court however, is at liberty to cancel the bail, if the accused petitioner misuses the privilege of bail in any way.

Md. Moinul Islam Chowdhury, J.

                                    I agree-