Narcotics Control Act, 1990
Section 2 & 1st schedule [Ka (3)]
The Narcotics Control Act, 1990
Section 2 and 1st schedule [Ka (3)]
The Drugs (Control) Ordinance, 1982
Section 8 Schedule-III
Phensedyl– Phensedyl is a liquid substance with which a solid substance i.e. codeine phosphate is found mixed. In this circumstance, we are of the view that when any kind of narcotic is found mixed with other substances whether it is liquid or solid, for the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances and the accused will be punished accordingly. In this situation, if the substance with which the narcotic has been found mixed is liquid, the total amount of narcotic substance need to be counted based on volume or mass. .....The State =VS= Badal Kumar Paul, (Criminal), 2022(1) [12 LM (AD) 423]
Sections 2(Kha), 9 and 10(Ga)
There is absolutely no truth as to the allegation of the limit of use of alcohol or rectified spirit as a raw material in the preparation and formation of the Homeopathic medicine under the provisions of Drugs Act, 1940 or the Drugs (Control) Ordinance, 1982 or no such right of use has been taken away by the Narcotics Control Act, 1990. Bangladesh Homeopathic Medicine Manufacturers Association vs Bangladesh 11 BLC (AD) 26.
Section 2 and 1st schedule [Ka (3)]
The Narcotics Control Act, 1990
Section 2 and 1st schedule [Ka (3)]
The Drugs (Control) Ordinance, 1982
Section 8 Schedule-III
For the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances:
Phensedyl is a liquid substance with which a solid substance i.e. codeine phosphate is found mixed. In this circumstance, we are of the view that when any kind of narcotic is found mixed with other substances whether it is liquid or solid, for the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances and the accused will be punished accordingly. In this situation, if the substance with which the narcotic has been found mixed is liquid, the total amount of narcotic substance need to be counted based on volume or mass. ...The State Vs. Badal Kumar Paul, (Criminal), 17 SCOB [2023] AD 43
Section 11
Direction upon the writ respondents i.e. the present petitioners to grant license in favour of the writ petitioner No.1 under Section 11 of the Narcotics Con- trol Act, 1990 to manufacture, process, carry, transport, export, supply, sell, hold, preserve, warehousing and exhibit of products under the trade name "Hunter" and "Crown". Department of Narcotics Control Dhaka vs. Crown Beverage Ltd. (Md. Abdul Matin J) (Civil) 7 ADC 132
Section 11
To grant license in favour of the writ petitioner No.1 under Section 11 of the Narcotics Control Act, 1990 to manufacture, process, carry, transport, export, supply, sell, hold, preserve, warehousing and exhibit of products– It appears that the appellants admitted before the High Court Division about the issuance of license for manufacturing various alcoholic drinks and the High Court Division observed as under:- “It is not denied by the respondents that there are commercial concerns in the country which are manufacturing various alcoholic drinks under license. It is also not denied that there are also licensed dealers in the country dealing in such drinks and accordingly they buy such drinks from those licensed manufactures in the country.”
The operative portion of the judgment of the High Court Division in respect of the direction to issue license needs modification and accordingly this appeal is dismissed with direction upon the appellant who were the respondent in the High Court Division and the direction is modified in the following terms:-
The respondent who are the appellants here are directed to consider and dispose of the application of the writ petitioner’s praying for license under Section 11 of the Narcotics Control Act, 1990 in accordance with law in the light of the judgment delivered by the High Court Division in Writ Petition No.6818 of 2004 affirmed hereby this Court with above modification. …Department of Narcotics Control Dhaka=VS=Crown Beverage Ltd., (Civil), 2020 (1) [8 LM (AD) 94]
The Narcotics Control Act, 1990
Section 11
That mere investment of money and
setting up a factory does not acquire the vested right to obtain a Brewery
licence Because a brewery licence is to be granted by the competent authority
only on merit and with due consideration of the necessity of granting such licence
in the perspective of degradation of moral values, increasing social crimes and
negative public stance against the prod- ucts in question. Department of
Narcotics Control -vs-Crown Beverage Ltd. Senakalyan Bhaban (Amirul Kabir
Chowdhury JCivil) 3ADC 924
Narcotics Control Act, 1990
Section 11- To grant license in favour of the writ petitioner No.1 under Section 11 of the Narcotics Control Act, 1990 to manufacture, process, carry, transport, export, supply, sell, hold, preserve, warehousing and exhibit of products It appears that the appellants admitted before the High Court Division about the issuance of license for manufacturing various alcoholic drinks and the High Court Division observed as under:-
"It is not denied by the respondents that there are commercial concerns in the country which are manufacturing various alcoholic drinks under license. It is also not denied that there are also licensed dealers in the country dealing in such drinks and accordingly they buy such drinks from those licensed manufactures in the country."
The operative portion of the judgment of the High Court Division in respect of the direction to issue license needs modification and accordingly this appeal is dismissed with direction upon the appellant who were the respondent in the High Court Division and the direction is modified in the following terms:-
The respondent who are the appellants here are directed to consider and dispose of the application of the writ petitioner's praying for license under Section 11 of the Narcotics Control Act, 1990 in accordance with law in the light of the judgment delivered by the High Court Division in Writ Petition No.6818 of 2004 affirmed hereby this Court with above modification. Department of Narcotics Control Dhaka-VS-Crown Beverage Ltd., [8 LM (AD) 94]
Section 19(1) Serial 3
The Narcotics Control Act, 1990
Section 19(1) Serial 3
The Drugs (Control) Ordinance, 1982
Section 8 Schedule-III
Any portion of the mixture of codeine phosphate with any other liquid substance shall render the total amount of liquid substance as narcotics substances and punishment will be imposed based on the quantity of total amount of such combination– ‘Codeine’ and ‘codeine phosphate’ are included in Schedule III of the Drugs (Control) Ordinance, 1982. So, the use of codeine and codeine phosphate is not permitted in our country. Moreover, Phensedyl is also a prohibited drug in Bangladesh under Section 8 Schedule-III of the Drugs (Control) Ordinance, 1982. Since codeine phosphate is one of the ingredients of Phensedyl, the import, manufacture or sale of Phensedyl is punishable under the Act. Again in the Narcotics Control Act, 1990 codeine has been mentioned as schedule of narcotics. Since codeine phosphate is a derivative of codeine, in our unerring opinion it is also a scheduled narcotic. Due to its addictive nature, it cannot be used in any cough syrup or any other liquid substance in any combination form.
Appellate Division is of the view that since codeine phosphate is a derivative of codeine, it has to be considered as scheduled narcotics and any portion of the mixture of codeine phosphate with any other liquid substance shall render the total amount of liquid substance as narcotics substances and punishment will be imposed based on the quantity of total amount of such combination. .....The State =VS= Badal Kumar Paul, (Criminal), 2022(1) [12 LM (AD) 423]
Section 19
As the respondent was carrying surreptitiously 3 kg 27 grams of powder the whole stuff is to be treated as heroin for the purpose of the Act intending to punish the carrier of the narcotic irrespective of whether it is in the purest form or not. It is not necessary for the prosecution to prove the “actual and real heroin content” for the purpose of a conviction under clause 1(a) of the table of section 19 of the Act. The view taken by the High Court Division expressing that the purpose of the law is only to punish the preparation, carrying and dealing, etc. of laboratory heroin’ and not the stuff is wrong. State vs Miss Eliadah McCord 2 BLC (AD) 1.
Section 19
While considering the sentence to be passed upon the respondent under clause 1(a) of section 19 of the Act the High Court Division was wrong in relying upon a statement made by the respondent recorded in connection with the Miscellaneous case started on a suo motu Rule as that statement was not part of the record of the appeal and thus irrelevant as far as the appeal was concerned. State vs Miss Eliadah McCord 2 BLC (AD) 1.
Section 19
As there is no scope for altering the conviction from one under clause 1(b) to clause 1(a) of the table of section 19 of the Act reducing the sentence on compassionate ground considering the age of the respondent who may approach the Government or the President, if so advised, for any relief that she may choose to pray. State vs Miss Eliadah Mac Cord 2 (AD) BLC 1.
Section 19—
As the respondent was carrying surreptitiously 3 kg 27 grams of powder the whole stuff is to be treated as heroin for the purpose of the Act intending to punish the carrier of the narcotic irrespective of whether it is in the purest form or not. It is not necessary for the prosecution to prove the “actual and real heroin content” for the purpose of a conviction under clause 1(a) of the table of section 19 of the Act. The view taken by the High Court Division expressing that the purpose of the law is only to punish the preparation, carrying and dealing, etc. of laboratory heroin’ and not the stuff is wrong. State vs Miss Eliadah McCord 2 BLC (AD) 1.
Section 19—
While considering the sentence to be passed upon the respondent under clause 1(a) of section 19 of the Act the High Court Division was wrong in relying upon a statement made by the respondent recorded in connection with the Miscellaneous case started on a suo inotu Rule as that statement was not part of the record of the appeal and thus irrelevant as far as the appeal was concerned. State vs Miss Eliadah McCord 2 BLC (AD) 1.
Section 19—
As there is no scope for altering the conviction from one under clause 1(b) to clause 1(a) of the table of section 19 of the Act reducing the sentence on compassionate ground considering the age of the respondent who may approach the Government or the President, if so advised, for any relief that she may choose to pray. State vs Miss Eliadah McCord 2 (AD) BLC 1.
Section 19(7) (Kha)—
The seizure list witnesses having not supported the prosecution case of recovery of two bags of ganja from the possession of the appellant when the evidence of Habilder, a member of raiding party, made the recovery of the incriminating articles as he testified that the seizure list was prepared at Ferry-Ghat when none of the neighbours were called at the time of recovery and hence the prosecution has failed to prove the alleged recovery of incriminating articles beyond reasonable doubt and thus the judgment and order of conviction and sentence is set aside. Musa Miah vs State 5 BLC 703.
Sections 19(1), 6(Kha), 22(Ga) and 25—
In the absence of any provision as to in which äourt the offence under “মাদক দ্রব্য নিয়ন্ত্রন আইন ১৯৯০” are triable the provisions of section 5(2), CrPC will apply and the trial should be held in the Court as mentioned in the second schedule to the Code of Criminal Procedure under the heading “offences against other laws”. Arjun Saha and ors vs State 5 BLC 416.
Section 19(1) (ka)
Conviction for possession of herion—
There is no ground to interfere with the conviction and sentence when possession of herion is admittedly proved. Section 16 applies to the officers of the Narcotics department and it does not cast any responsibility upon the court to send the heroin addict convict to curing centre. Shahid Hussain Chowdhury @ Bakul Vs. the State— 2, MLR(1997) (AD) 164.
Section 19(1) Serial 3
Narcotics Control Act, 1990
Section 19(1) Serial 3
The Drugs (Control) Ordinance, 1982
Section 8 Schedule-III
Since codeine phosphate is a derivative of codeine, it thus also stands as a ‘Ka’ class narcotic under Schedule-I of the Narcotics Control Act, 1990:
‘Codeine phosphate’ is a derivative of codeine and codeine is a scheduled narcotic under Section 19(1) Serial 3 of the Narcotics Control Act, 1990, which is an opium derivative. In schedule-I of the Narcotics Control Act, 1990 three categories of narcotics have been enumerated. The derivatives of opium have been mentioned in serial 3 of ‘Ka’ class of narcotics, where codeine is one of the derivatives. So, indisputably according to the Narcotics Control Act, 1990 ‘codeine’ is a scheduled narcotic and it is prohibited. Guidelines for evaluation of medical products proposed in Annexure–III of the Report of the Expert Committee for Drugs on the National Drug Policy of Bangladesh, 1982 strictly prohibits the use of codeine in any combination form as it causes addiction. Since codeine phosphate is a derivative of codeine, it thus also stands as a ‘Ka’ class narcotic under Schedule-I of the Act. ...The State Vs. Badal Kumar Paul, (Criminal), 17 SCOB [2023] AD 43
Since codeine phosphate is a derivative of codeine, it thus also stands as a ‘Ka’ class narcotic under Schedule-I of the Narcotics Control Act, 1990:
‘Codeine phosphate’ is a derivative of codeine and codeine is a scheduled narcotic under Section 19(1) Serial 3 of the Narcotics Control Act, 1990, which is an opium derivative. In schedule-I of the Narcotics Control Act, 1990 three categories of narcotics have been enumerated. The derivatives of opium have been mentioned in serial 3 of ‘Ka’ class of narcotics, where codeine is one of the derivatives. So, indisputably according to the Narcotics Control Act, 1990 ‘codeine’ is a scheduled narcotic and it is prohibited. Guidelines for evaluation of medical products proposed in Annexure–III of the Report of the Expert Committee for Drugs on the National Drug Policy of Bangladesh, 1982 strictly prohibits the use of codeine in any combination form as it causes addiction. Since codeine phosphate is a derivative of codeine, it thus also stands as a ‘Ka’ class narcotic under Schedule-I of the Act. (Para 13)
For the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances:
Phensedyl is a liquid substance with which a solid substance i.e. codeine phosphate is found mixed. In this circumstance, we are of the view that when any kind of narcotic is found mixed with other substances whether it is liquid or solid, for the purpose of imposing punishment the ‘total amount of substances’ with which the narcotic has been mixed requires to be considered as narcotic substances and the accused will be punished accordingly. In this situation, if the substance with which the narcotic has been found mixed is liquid, the total amount of narcotic substance need to be counted based on volume or mass. (Para 15)
Section 19(1) Serial 3(Kha) of the Narcotics Control Act, 1990:
Since in the instant case, total 250 bottles i.e. 25 liters of the Phensedyl containing codeine phosphate have been seized the entire measure of Phensedyl is to be considered as narcotics. As the quantity of seized Phensedyl exceeds 2 kilograms, the accused[1]respondent will be convicted under Section 19(1) Serial 3(Kha) of the Act. The High Court Division committed a serious error of law holding that in the absence of any law declaring Phensedyl contraband, the existence of codeine phosphate in Phensedyl does not make Phensedyl a schedule narcotic. (Para 17)
Schedule III of the Drugs (Control) Ordinance, 1982:
‘Codeine’ and ‘codeine phosphate’ are included in Schedule III of the Drugs (Control) Ordinance, 1982. So, the use of codeine and codeine phosphate is not permitted in our country. Moreover, Phensedyl is also a prohibited drug in Bangladesh under Section 8 Schedule-III of the Drugs (Control) Ordinance, 1982. Since codeine phosphate is one of the ingredients of Phensedyl, the import, manufacture or sale of Phensedyl is punishable under the Act. Again in the Narcotics Control Act, 1990 codeine has been mentioned as schedule of narcotics. Since codeine phosphate is a derivative of codeine, in our unerring opinion it is also a scheduled narcotic. Due to its addictive nature, it cannot be used in any cough syrup or any other liquid substance in any combination form. (Para 25)
It is well settled principle that if the prosecution case is proved otherwise beyond reasonable doubt based on evidence, the accused can be convicted despite the seizure list witnesses denied supporting the prosecution case i.e. recovery and seizure. (Para 41) [17 SCOB [2023] AD 43]
Sections 19(1) Table 1(Kha) and 19 Table 4-In a case where any drug is recovered and/or seized during any operation by the law-enforcement agencies, the determination of the quantum of the drug so recovered or seized is imperative.
Unless the quantum of the drug is measured and determined by a proper and acceptable method i.e., by weighing with a conventional scale or an electronic scale, the statement with regard to the quantum of drug so seized or recovered would merely be based on an approximation, which is not only improper, but grossly prejudicial to the interest of the person charged with the offence. Leon vs State, 69 DLR 498
Section 19(1) Serial 3(Kha)
Since in the instant case, total 250 bottles i.e. 25 liters of the Phensedyl containing codeine phosphate have been seized the entire measure of Phensedyl is to be considered as narcotics. As the quantity of seized Phensedyl exceeds 2 kilograms, the accusedrespondent will be convicted under Section 19(1) Serial 3(Kha) of the Act. The High Court Division committed a serious error of law holding that in the absence of any law declaring Phensedyl contraband, the existence of codeine phosphate in Phensedyl does not make Phensedyl a schedule narcotic. ...The State Vs. Badal Kumar Paul, (Criminal), 17 SCOB [2023] AD 43
Section 22 (Ga)- We have gone through the judgments of both the trial court and the appellate court below and found that both the courts, on careful examination and consideration of evidence adduced by the prosecution found the charge against both the accused-persons proved beyond all reasonable doubt. We find no wrong in these concurrent findings and decision of the trial court and the appellate court below. Rather we, in agreement with the trial court and the appellate court below, find that the charges framed against both these accused- petitioners were proved beyond all reasonable doubt by sufficient convincing evidence and in the circumstances this criminal petition for leave to appeal has no merit......Md. Hosen Ali & another =VS= The State, [1 LM (AD) 481]
Section 22 (Ga)
We have gone through the judgments of both the trial court and the appellate court below and found that both the courts, on careful examination and consideration of evidence adduced by the prosecution found the charge against both the accused-persons proved beyond all reasonable doubt. We find no wrong in these concurrent findings and decision of the trial court and the appellate court below. Rather we, in agreement with the trial court and the appellate court below, find that the charges framed against both these accused-petitioners were proved beyond all reasonable doubt by sufficient convincing evidence and in the circumstances this criminal petition for leave to appeal has no merit. .....Md. Hosen Ali & another =VS= The State, (Criminal), 2016-[1 LM (AD) 481]
Section 22(Ga)
Madok Drabbya Neontron Ain, 1990
Section 22(Ga)
The Code of Criminal Procedure
Section 561A
It transpires from the FIR that so many persons gathered in the house of accused-Victor Rojario for immoral purpose. But this fact does not constituted any offence within the mischief of section 22(Ga) or any other sections of the Madok Drabbya Neontron Ain, 1990. ––It is Appellate Division’s considered opinion that there is no illegality and infirmity in the impugned judgment passed by the High Court Division, which calls for interfered by this Division. .....The State =VS= Md. Ramizuddin, (Criminal), 2022(2) [13 LM (AD) 568]
Section 30-Seized Yaba tablets were not recovered from the gunny bags of fish feeds rather it was allegedly recovered from inside the cabin of the driving seat of the truck. The Court concerned may presume that those were within their knowledge, control and possession. (PER MD KHASRUZZAMAN, J) Md Hossain (Driver) vs State, 70 DLR 20
Sections 31, 39 and 44
Section 31 of the Act has made the offence committed under this Act cognizable. Section 39(i) of the Act has given power of an Officer--in charge of a Police Station to the Directorate to investigate into an offence under this Act. Sub-section (2) of section 39 empowers the Government to confer power of an Officer-in-charge of a Police Station to an officer subordinate to the Director General of the Narcotics Directorate by a gazette notification to investigate into any offence under this Act. It is thus evident that the power of the Director General of the Narcotics Directorate is not in derogation of the power of the Officer-in-charge of the concerned Police Station. Under section 5(2) of the Code of Criminal Procedure. Section 44--Section 44 of the Act shows that on a written request by the Director General of the Directorate of Narcotics, the investigating agency may hand over charge of investigation of a case. It is thus clear that besides the Director General of the Directorate of Narcotics an officer subordinate to him specially empowered by the Government, investigation of an offence under this Act may also be done by any designated member of the law enforcing agency competent to investigate the case. The power of the Director General of the Directorate of Narcotics to investigate a case under this Act is neither exclusive nor absolute. The State-Vs.- Amin Huda 2 ALR (2013)(AD) 177
Section 42-No police report has been submitted within 15 working days, which was expired long before, the IO is still pursuing the investigation beyond 15 days time causing prejudice to the accused- petitioners and under these facts and circumstance of the case the accused- petitioners are entitled to be enlarged on ad-interim bail. (PER SHEIKH ABDUL AWAL, J) Md Hossain (Driver) vs State, 70 DLR 20
Section 42(6)-The investigating officer is to face departmental proceeding if he/she fails to complete the investigation within the stipulated time but prosecution kept totally mum on that point as regards to aking any step against the investigating officer leaving the investigation totally incertain which entitle the accused- petitioners to go on bail. (PER MD MOZIBUR RAHMAN MIAH, JAGREEING WITH SHEIKH ABDUL AWAL, J) Md Hossain (Driver) vs State, 70 DLR 20
Section 44
Section 44 of the Act shows that on a written request by the Director General of the Directorate of Narcotics, the investigating agency may hand over charge of investigation of a case. It is thus clear that besides the Director General of the Directorate of Narcotics an officer subordinate to him specially empowered by the Government, investigation of an offence under this Act may also be done by any designated member of the law enforcing agency competent to investigate the case. The power of the Director General of the Directorate of Narcotics to investigate a case under this Act is neither exclusive nor absolute. The State-Vs.- Amin Huda 2 ALR (2013)(AD) 177
