Punjab-Haryana High Court
Vikas Sehgal vs State Of Punjab on 8 March, 2010
Author: Nirmaljit Kaur
Bench: Nirmaljit Kaur
Crl. Misc. No.M-1247 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-1247 of 2009
Date of Decision: 08.03.2010
Vikas Sehgal
....Petitioners
Versus
State of Punjab
...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Balbir Singh, Advocate
for the petitioner.
Mr. K.S. Pannu, D.A.G., Punjab
for the respondent-State.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is a petition under Section 482 Cr.P.C for quashing of FIR No.423 dated 15.11.2008 under Sections 22/61/85 of Narcotics Drugs and Psychotropic Subsances Act, 1985 registered at Police Station Division No.6, Jalandhar.
Brief facts of the case are that the petitioner is proprietor of a Medical/Chemist Shop being run under the name and style of M/s Sehgal Medicos at Mithapur Chowk, Jalandhar for the last about 10 year. The case of the prosecution is that on 15.11.2008, the petitioner was apprehended while coming on foot to be in possession of some drugs and 11 injections of NORPHIN, 1 injection of CURAPOSE, 9 injections of Pheniramine Maleate etc. were recovered from him. The petitioner is operating the said chemist shop by means of license, bearing nos. 14215- Crl. Misc. No.M-1247 of 2009 2 NB and 14215-B issued by the State Drugs Controlling & Licensing Authority, Punjab, Chandigarh for the sale, stock, exhibit or offer for sale or the distribution of drugs both Biological and Non-Biological. The said license is valid till 31.12.2012. The petitioner had purchased questioned medicines/drugs through retail invoice No.2632 dated 11.11.2008.
Learned counsel for the petitioner submitted that the drugs recovered from the petitioner do not fall under the Narcotics Drugs and Psychotropic Substances Act, 1985. Rather, the recovered drugs being come under the Drugs and Cosmetics Act. It is further stated by learned counsel for the petitioner that that the Drug Controller had issued a certificate to the petitioner, which authorized him to possess Biological and Non-Biological medicines and even if some medicines are found to be in possession of the petitioner, it does not attract provisions of the Narcotic Drugs and Psychotropic Substances Act.
Learned counsel for the petitioner brought to the notice of the Court the order dated 22.03.2006 passed in Criminal Appeal No.1834 of 2003, whereby, on directions of this Court, the State Government had constituted a Committee to go into all such matters and see in case any offence under the NDPS Act is made out in those cases where the recovery of drugs is involved and specially when these persons are having license to run Chemist Shop.
Accordingly, the meeting regarding review of the said case was held and the SIT has submitted its report vide forwarding letter dated 24.02.2010 of the Additional Director General of Police, Crime, Punjab Chandigarh. The said report was handed over by the learned counsel for the State and the same is taken on record. As per the same, the Chemical Analysis Report revealed as under :-
" Chemical Analysis report reveals that the recovered drugs contain the salt of Crl. Misc. No.M-1247 of 2009 3 Bprenorphine hydrochloride, Diazepam, Pheniramine Maleate."
As per the said report, the Technical opinion of Drugs Inspector is as under :-
" The drugs recovered vide
recovery memo i.e. Buprenorphine &
Diazepam are psychotropic substances
covered under the NDPS Act 1985 but as per
Rule 66 of the said Act, a person holding a
valid drugs sale license can stock these drugs for sale & distribution being scheduled drugs formulations under Drugs & Cosmetics Act 1940. Further the drug pheniramine is anti-
allergic scheduled drug, hence does not fall within the preview of NDPS Act 1985."
Thereafter, the Committee recommended as under :-
" On perusal of the Chemical Analysis & Drug Inspector's report it is revealed that the recovered injections Norphine & Curapose contain psychotropic substances. Further the quantity of Inj. Curapose & Inj. Pheniramine Maleate as listed in the attested photocopy of the bill produced by the petitioner bill is 24*10ML & 1*24*10ML respectivly whereas the recovered Inj. Norphine (11 inj.) is not listed in the bill. Petitioner is the holder of a valid drugs sale license no.14215/NB & 14215/B (copies attached), in favour of M/s Sehgal Medicos, Mithapur Chowk, Jalandhar with competent person in charge Sh. Jaswant Rai Magoo (Pharmacist). Therefore it is concluded that the provisions of NDPS Act in this case are not attracted as the petitioner is a holder of a valid drugs sale license but has violated the provisions of the Drugs & Cosmetics Act 1940."Crl. Misc. No.M-1247 of 2009 4
Thus, as per the above report, no offence under Narcotics Drugs and Psychotropic Substances Act, 1985, is made out. However, the provisions of Drugs & Cosmetics Act 1940 have been violated.
This Court, in the case of Johnson and another vs. State of Punjab in Crl. Misc. No.25319-M of 2004 vide Order dated 11.10.2006, in similar circumstances, held as under -
" After reviewing the present case, the
aforementioned committee concluded that no
offence under NDPS Act was made out and the allegations disclosed commission of offence under the Drugs and Cosmetic Act only. The conclusion of the Committee in respect of the present case is reproduced hereinbelow :
" Do not attract the provision of NDPS Act 1985 because psychotropic substance salts are not found in recovered medicines. Accused deserved to be charge under Drug & Cosmetic Act, 1940. Recommended for cancellation."
As a result of above, I hold that no offence under the provisions of NDPS Act is made out against the petitioners. The prosecution allegation disclose commission of an offence under the Drugs and Cosmetic Act. However, the petitioners cannot be prosecuted for the offence under the Drugs and Cosmetics Act on the basis of FIR as only a complaint by the Drugs Inspector was competent for initiating action against the petitioners in accordance with the provisions of that Act."
In another case of Pawan Kumar and another vs. State of Punjab (CRR No.165 of 2009, decided on 28.01.2010), this Court allowed the revision petition by holding as under :-
" In view of the recommendations of the Committee and above discussion, the petitioner can Crl. Misc. No.M-1247 of 2009 5 be prosecuted only under the Drugs and Cosmetic Act.
Accordingly, the present revision petition is allowed and the impugned order dated 15.11.2008 (Annexure P-1) passed by the Special Judge, SAS Nagar, Mohali whereby the petitioners have been charged for offences under Sections 22/61/85 of NDPS Act in consequence of FIR No.243 dated 12.08.2008 registered at Police Station Kharar, District SAS Nagar, is quashed.
However, the State is at liberty to proceed against the petitioners under the relevant provisions of the Drugs and Cosmetic Act."
Thus, in view of the recommendations of the Committee and above discussion, no offence under the provisions of Narcotics Drugs and Psychotropic Subsances Act, 1985, is made out against the petitioner. The prosecution allegation disclose commission of an offence under the Drugs and Cosmetics Act.
Accordingly, the present petition is accepted and the proceedings launched against the petitioner under the provisions of Narcotics Drugs and Psychotropic Subsances Act, 1985 by way of registration of FIR are quashed. However, the concerned Drug Inspector is at liberty to proceed against the petitioner under the relevant provisions of the Drugs and Cosmetic Act by filing a criminal complaint, if so advised.
(NIRMALJIT KAUR) 08.03.2010 JUDGE gurpreet