Narcotics Control Act (XX of 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 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
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]
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
Heroin-When mixed—
When mixed with, the entire stuff has to be considered as Heroin for the purpose of conviction and sentence. When law is stringent no consideration either humanitarian or otherwise can serve the purpose of reducing the sentence than prescribed by law. The hands of court are tied. The power of remission, commutation etc. lies with the Government or the President under Chapter XXIX of the Cr. PC. and Article 49 of the Constitution. The State Vs. Ms. Eliadah Mac Cord— 1, MLR (1996) (AD) 238.
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
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
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
Sections 19(1) Table 1 (Kha) -The charge sheet shows that the quantity of heroin was 100 grammes.
The High Court Division observed that there is no certainty as to when the trial would be concluded and there is no crimi- nal record against accused and hence he is not a habitual offender. It is not denied that despite passage of a substantial length of time, the trial has not been commenced. The High Court Division does therefore feel that because of the provision in 3390 Cr. P.C, it would be proper to enlarge the petitioner bail, and enlarged the petitioner on bail. The Rule is hence, her made absolute.
Section 22(Ga)
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 Ain, 1990. ......(16) 29 BLC (AD) (2024) 52
Section 22(Ga)
From the FIR and charge-sheet it transpires that the alleged liquor were recovered from the dining room of the house of accused and the accused persons gathered in that house for some immoral purpose. The FIR and charge-sheet do not disclose that the respondents had the exclusive possession of the liquor in question or they abetted accused commit such offence.
29 BLC (AD) (2024) 52
Section 22 (Ga) -Leave-petitioners were granted bail by the High Court Di- vision for a period of 6 (six) months and these period of bail was subsequently ex- tended several times and lastly it was ex- tended for a period of 3 (three) months on 19.08.1999. This period expired on 19.11.1999, but thereafter these accused- petitioners did never appear before the court and never prayed for fresh bail and consequently they became fugitive.
The Appellate Division observed that being aggrieved by this judgment and order of the appellate court below the convicted accused- persons preferred the above men- tioned criminal revision before the High Court Division and obtained rule. Ulti- mately, a Single Bench of the High Court Division discharged that rule directing the accused-petitioners to surrender before the trial court within 60 (sixty) days from the date of receipt of that order to serve out the remaining period of their sentence. It ap- pears that these leave-petitioners were granted bail by the High Court Division for a period of 6 (six) months and these period of bail was subsequently extended several times and lastly it was extended for a pe- riod of 3 (three) months on 19.08.1999. This period expired on 19.11.1999, but the reafter these accused-petitioners did never appear before the court and never prayed for fresh bail and consequently they be- came fugitive. On 02.12.2012 the rule is- sued in that Criminal Revision No. 939 of 1998 was taken up for hearing and the learned Judge of the High Court Division took into consideration this fact that the convicted petitioners became fugitive. The High Court Division, therefore, discharged the rule. The Appellate Division has gone through the judgments of both the trial court and the appellate court below and found that both the courts, on careful ex- amination and consideration of evidence adduced by the prosecution found the charge against both the accused-persons proved beyond all reasonable doubt. The Appellate Division finds no wrong in these concurrent findings and decision of the trial court and the appellate court below. Md. Hosen Ali Bishu and another -Vs.- The State (Criminal) 13 ALR (AD) 173- 175
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)
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]
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 39 and 40-Section 44 of the Act, 1990 prima-facie, shows that besides the Director- General of the Directorate of Narcotics, or an officer subordinate to him specially empowered by the Government by gazette notification, inves- tigation of an offence committed under the Act shall also be done by other agency and that agency cannot but be an agency as contemplated in the Code in view of sub-section (2) of section 5 thereof. Had the Director-General of Narcotics Directorate or any officer subordinate to him specially empowered by the Government by the gazette notification the exclusive authority to investigate into an offence committed under the Act, 1990, then the question of making request by the Director-General to hand over charge of investigation of a case to an officer specified by him as provided in section 44 of the Act would not have arisen. State vs Amin Huda 63 DLR (AD) 152.
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
