Madhya Pradesh High Court
Kamlesh Mali vs The State Of Madhya Pradesh on 10 August, 2018
1 MCRC-19693-2018
The High Court Of Madhya Pradesh
MCRC-19693-2018
(KAMLESH MALI Vs THE STATE OF MADHYA PRADESH)
4
Jabalpur, Dated : 10-08-2018
Shri Sudhansu Kumar Singh, learned counsel for the petitioners.
Shri Y.D. Yadav, learned GA for the respondent/State.
This petition under Section 482 of Cr.P.C. has been filed to invoke the inherent jurisdiction of this Court and to quash the FIR at Crime No.470/16, registered at Police Station Beohari, District Shahdol for offences under Sections 8, 21 and 22 of the NDPS Act.
The prosecution story in brief is that, on receiving an information that, the petitioner No.1/Kamlesh Mali and petitioner No.2/Ram Prasad are selling prohibited narcotic drug carrying in a white bag. Police party raided the place and found the petitioners near the gas agency. On asking their names, petitioners No.1 & 2 disclosed their names. On search, 24 bottles of Corex syrup, Rs.200/- cash and a notice under the NDPS Act was found. Each Corex bottle of 100 ml. each was found, which was seized in the presence of witnesses, Anurag Singh and Ramsorit Sharma. The two seized samples A/1 and A/2 were kept separately and other seized materials were kept separately. The petitioner no.1/Kamlesh @ Ravi Mali and petitioner No.2/Ram Prasad were taken into custody. Rs.100/- from the pocket of petitioner No.2 and a notice under Section 50 of the NDPS Act was seized. The Corex bottles was seized. The sample of the article was sent to the FSL for examination.
On behalf of the petitioners, it is contended that, the petitioners are innocent and there is no restriction in keeping the cough syrup. The petitioner No.1/Kamlesh Mali and petitioner No.2/Ram Prasad have submitted that, they obtained this Corex syrup from one Ajay Gupta resident of Maanpur, District Umariya. It would be appropriate to mention that, the case of Ajay Gupta was decided as M.Cr.C. No.837/17, vide order dated 01/09/2017 and he has been exonerated from the charges.
The Laboratory report dated 12.07.2016 issued by I.T.L, Laboratory Pvt. Ltd., Indore shows that each 5 ml. contains 10.30 mg of Codeine Phosphate, the limit of which is 09.00 mg to 11.00 mg. In the second sample, the result was 10.09 mg in Codeine Phosphate in each 5 ml. of the syrup and in the third sample, it was 9.78 mg Codeine Digitally signed by RASHMI RONALD VICTOR Date: 14/08/2018 13:45:21 2 MCRC-19693-2018 Phosphate for each 5 ml. of the syrup and in the fourth sample, 10.19 mg of Codeine Phosphate for each 5 ml. syrup.
It would be appropriate to mention here that in exercise of the powers conferred by Clause (XI) of sub clause (b) of Section 2 of the Act, the Central Government has issued Notification No. S.O. 826(E), dated 14th November, 1985 which declares certain narcotics substances to be manufactured drugs. The relevant Entry No. 35 of the notification reads as follows:-
"morphine (commonly known as 'Codeine'), and Ethyl Morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and contain g not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5percent in undivided preparations and which have been established in therapeutic practice".
From the perusal of the above entry, it is clear that a preparation containing not more than 100 mgs. of Codeine Phosphate per dosage unit with the concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice is exempted from the application of Section 21 of the Act.
It would be appropriate to hold that 24 bottles of the COREX have been seized from the accused Kamlesh Mali and accused Ram Prasad Vishwakarma. In a similar case 23 bottles of Cosome LCD Syrup and 38 bottle of Codex Syrup (which are cough syrups), seized by the police. In Criminal Revision No. 200/2015 (Shiv Kumar Gupta Vs. State of M.P.) vide order dated 16.02.2015, the applicants were discharged by a co- ordinate Bench of this Court for offence under Section 8 read with Section 21 of the N. P.S Act. Similarly, vide order dated 28.04.2016, passed in M.Cr.C. No. 19922/2015 (Arvind Chandwani Vs. The State of Madhya Pradesh), 372 boxes of Phensedyl Cough Syrup bottles of 100 mg were seized and 37,200 bottles were seized. The Co-ordinate Bench of this Court has quashed the proceeding for offence under Sections 8, 21, 22 of Narcotic Drugs & Psychotropic Substances Act, 1985. In the case of Rohit Chadha Vs. State of M.P., 480 bottles of syrup was seized vide order dated 15.10.2015, the co-ordinate Bench of this Court has discharged the accused for offence under Section 8(C) read with Section 21(B) of the N.D.P.S. Act.
The syrup containing 10 mg. Codeine Phosphate, in each 5 ml. of Digitally signed by RASHMI RONALD VICTOR Date: 14/08/2018 13:45:21 3 MCRC-19693-2018 the bottle of Corex which is less than the permissible limit of 2.5%. Selling or keeping the drugs does not amount to an offence under the NDPS Act.
However, the petitioners are allegedly selling the drugs (Corex Syrup) without any valid license. Therefore, they may be liable for offence under the Drugs and Cosmetics Act.
With the above note, this petition is allowed. The FIR at Crime No.470/16 registered at Police Station Beohari, District Shahdol for offences under Sections 8, 21 and 22 of the NDPS Act, 1985 is concerned, is quashed. The prosecution may if deemed fit, proceed against the petitioners under the Drugs and Cosmetics Act, 1940.
(SUSHIL KUMAR PALO) JUDGE RS Digitally signed by RASHMI RONALD VICTOR Date: 14/08/2018 13:45:21