Bombay High Court
Parveen Firoz Shaikh vs The State Of Maharashtra on 18 February, 2020
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
BA-3095-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3095 OF 2019
Parveen Firoz Shaikh ... Applicant
Vs
The State of Maharashtra ... Respondents
...
Mr. Rajeev Patil, Senior Advocate i/by Mr. Hasan Patel for the Applicant.
Mrs. Sharmila Kaushik, APP for the Respondent-State. PSI Mr. Dipesh C. Kini, Bhiwandi Police Station present.
CORAM : SANDEEP K. SHINDE J.
DATE : 18 th FEBRUARY, 2020 P.C. :
1. Applicant is seeking her enlargement on bail in Crime No.59 of 2019 registered with Bhiwandi City Police Station for the ofences punishable under Sections 328, 273, 276, 411, 379 read with Section 34 of the Indian Penal Code, 1860 ('IPC' for short) along with Sections 18 (c), 27(B)(2), 27(D) of the Drugs and Cosmetics Act, 1940 along with Sections 8 and 22 of the Narcotics and Psychotropic Substances Act, 1985 Shivgan 1/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt ('NDPS' Act for short) and under Section 77 of the Child Labour Act, 2005.
2. On 5th February, 2019, based on secret information, residential premises of the applicant was raided and searched whereupon the following incriminating articles were found;
1] 190 bottles each containing 100 ml rexus active cough syrup worth around 22,000/-;
2] 30 stripes of alko-laplrazolam tablets worth Rs.810/- ;
3] one mobile phone with dual SIM cards and about 10 more mobiles.
On being asked about any documentation/licence for the possession of the said medicine in a huge quantity, the applicant could not produce any valid documents to that efect.
3. Chemical analysis of the contents of the Shivgan 2/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt cough syrup disclosed that it contained Codeine Phosphate I.P. 10 MG and Chlorpheniramine Maleate IP 4 MG in each 5 ML contents of cough syrup. Thus, in each bottle of cough syrup of 100 ML, 200 MG Codeine was found and detected.
4. The learned counsel for the applicant submitted that the small quantity in relation to Codeine (Non-proprietary name) is 10 gms and commercial quantity is 1 kg and, therefore, the total quantity of Codeine in all 190 bottles was less than the commercial quantity prescibed under the NDPS Act. It is further submitted that the medicine Rexus active cough syrup is a Scheduled Drug and in view of the Notifcation dated 14th November, 1985 issued by the Central Government under the NDPS Act, it declared that certain preparations are exempted from the purview of 'Manufactured Drugs' provided, the preparation contained in the narcotic drug was limited to the extent Shivgan 3/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt permitted under the notifcation. It is further submitted in respect of Codeine under Entry No.35 of the said notifcation which reads as under
"Methyl 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 containing not more than 100 milligrammes of the drug/per dosage unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice."
Therefore, it is his submission that since the said cough syrup preparation containing Codeine falls below the prescribed quantity under the said Notifcation referred to above, it shall, therefore, fall under Schedule 'H' of the Drugs & Cosmetics Rules and shall only be governed by the said Rules. Additionally, it is submitted that since the applicant could not produce a valid licence and/or purchase bills for the drugs recovered from the applicant on the date of recovery, she could be prosecuted only under the applicable provisions of Shivgan 4/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt Drugs and Cosmetics Act, 1940 and Rule, 1945. In short, it is submitted that the recovery of Rexus Active Cough Syrup bottles, even though it contained Codeine Phosphate and Chlorpheniramine Maleate being covered at Sr.No.35 of Notifcation S.O. 826(E) under the NDPS Act, dated 14th November, 1985, would not attract punitive provisions of the NDPS Act, 1985.
5. Application has been opposed by the State by fling afdavit-in-reply of Dipesh Chandrakant Kini, Police Sub-Inspector, Bhiwandi City Police Station and reliance was placed on Entry No.(35) of the Notifcation S.O.826(E) dated 14th November, 1985 which has been referred to above.
6. It is submitted that this said notifcation has been issued in exercise of the powers under Section 2(xi)(b) of the NDPS Act, 1985 by the Central Government declaring certain narcotic substances and Shivgan 5/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt preparations to be 'Manufactured Drugs' vide entry at Sr.No.35 which itself permits use of codeine in the manufacture of drugs, however, upto 100 mg per dosage unit and with a concentration of not more than 2.5% in undivided preparation along with it being established in therapeutic practise. It is not the case of the Respondent/State that bottles recovered from the possession of the applicant violated permissible limit as stipulated in Notifcation dated 14 th November, 1985 but the violation was in respect of the second condition under the twin conditions namely
(i) That contents should not be more than 100 MG of Codeine per dose unit and with a concentration of not more than 2.5% in undivided preparation AND
(ii) it should established for therapeutic practice.
7. In support of this contention, the learned APP Shivgan 6/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt has strongly relied upon the judgment of the Apex Court in Mohammed Shahabuddin and Ors. v. State of Assam 2012 (8) SCR 1193.
8. In the case in hand, admittedly, Rexus Active Cough Syrup is a pharmaceutical product covered under the relevant provisions of the Drugs and Cosmetics Act and Rules wherein Rule 65 prescribes the conditions of licences to sell such cough syrups in open market.
9. It may be stated that earlier, in terms of Rule 97 of the Drugs and Cosmetics Rule, 1945, which deals with labeling of medicines, this drug could be sold in retail market, only on the prescription of registered medical practitioners which is also mentioned in the Schedule 'H' of the Drugs and Cosmetics Rules. Later, when the Drugs and Cosmetics Rules were amended by notifcation dated 30th August, 2013, Schedule 'H1' Shivgan 7/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt was introduced wherein the present drug i.e., Codeine was shifted to at Sr. No.20 from the earlier position into schedule 'H' at serial no. 132.
10. Schedule 'H1" drugs were mainly allocated to restrict selling of antibiotics through over the counter (OTC) sales, after it was noted that any number of these drugs could be brought from pharmacies across India without any limitations. Having found irrational prescription of antibiotics and other drugs by doctors and chemists, the Government of India via gazette notifcation, dated 30 th August, 2013 prescribed Schedule 'H1' Drugs which included certain habit-forming drugs like psychotropic drugs. (emphasis supplied). Therefore, corresponding amendments were made wherein, Rule 97 Clause (f) was added, which reads as under
"97(f) if it contains a drug substance specifed in Schedule H1 and comes within the purview of Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) be labeled with symbol Nrx, Shivgan 8/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt which shall be in red and conspicuously displayed on the left top corner of the label and shall also be labeled with the following words in legible black coloured font size in completely red rectangular box;
_______________________________________________________ SCHEDULE H1 PRESCRIPTION DRUG - CAUTION
- It is dangerous to take this preparation except in accordance with the medical advice.
- Not to be sold by retail without the prescription of Registered Medical Practitioner.
_______________________________________________________
11. Therefore, if the medicine contains a drug substance specifed in Schedule 'H1' and comes within purview of Narcotic Drugs and Psychotropic Substances Act , 1985, the necessary compliance with Rule 97(f) also becomes mandatory in nature.
12. Thus, in view of the Notifcation dated Shivgan 9/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt 30th August, 2013, Codeine is Scheduled 'H1' drug and it can be sold only subject to compliance of Rule 97(f) of the Drugs and Cosmetics Rules, 1945. This rule itself place the word 'Caution' which is to signify that it is dangerous to take this medicine except in accordance with medical advice and not to be sold in retail without prescription of registered medical practitioner.
13. Admittedly, 'Codeine' is a manufactured drug within the meaning of Section 2(xi) of the NDPS Act posed at serial no. 28 of the table given under the Notifcation bearing S. O. 1055(E) dated 19.10.01. Its possession except for medical or scientifc purposes and to the extent provided by the provisions of this Act or rules or order made thereunder and in case where any such provision imposes any requirement by way of licence is not permissible.
14. In the case in hand, a substantial stock of Shivgan 10/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt 190 bottles, each containing 100 ml Rexus Active Cough Syrup in all containing 38 gms codeine was found in possession of the applicant, without any valid license/document, contrary to notifcation bearing S. O. 826(F) dated 14.11.1985 under NDPS Act and therefore, holding/possessing such stock of the drugs listed in 'H1' Schedule of the Drugs and Cosmetics Act read with Section 8 of the NDPS Act was found to be prohibited.
15. Now, so far as the Notifcation dated 14th November, 1985 issued in exercise of the powers under Section 2(xi)(b) of the NDPS Act is concerned, it is to be held that twin conditions have been enumerated therein which are required to be satisfed as has been explained above. Notably, in the present case, it was found that stock of Rexus active cough syrup was not for therapeutic practice since there was no valid license/document to support the possession of Shivgan 11/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt the medicines in such huge quantity. In view of this fact, the Apex Court in the case of Mohammed Shahabuddin (Supra) has held in paragraph 12 as under "12. The submission of the Learned Counsel for the Appellants was that the content of the codeine phosphate in each 100 ml. Bottle if related to the permissible dosage, namely, 5 ml. would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifcations dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfed the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. Of Codeine, per dose unit and with a condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means 'contributing to cure of disease'. In other words, the Assessment of codeine content on dosage basis can only be made only when the cough syrup is defnitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent."
16. In the cited case, on secret information, police had intercepted a truck, whereupon the search, 347 cartons, each carton containing 100 bottles of 100 Shivgan 12/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt ml of Phensedyl cough syrup were found. The chemical analysis of the contents of the cough syrup disclosed that it contained 'Codeine Phosphate' beyond the prescribed quantity and, therefore, the said medicines were seized. The Hon'ble Apex Court, while dealing with the bail plea of the accused therein, had, thus, held twin conditions enumerated and laid down in the Notifcation dated 14th November, 1985 are to be necessarily satisfed. Thus, drawing cue from the judgment of the Apex Court, in the said case in hand, though the content of codeine phosphate in each 100 ml bottle contained a permissible amount of Codeine in per dosage unit, i.e., 5 ml, but having found that it was not established for therapeutic practice, it can be held prima facie, that, there was no due compliance with the said notifcation. Therefore, in my view, since the applicant failed to comply with the specifc condition under the above referred Notifcation for claiming exemption in order to seek bail, for the reasons Shivgan 13/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 ::: BA-3095-2019.odt mentioned hereinabove, no case is made out for releasing the applicant on bail.
17. Application is rejected.
18. It is made clear that observations made hereinabove shall be construed as an expression of opinion only for the purpose of refusal of bail and the same shall not in any way infuence the trial in other proceedings.
(SANDEEP K. SHINDE, J.) Shivgan 14/14 ::: Uploaded on - 20/02/2020 ::: Downloaded on - 10/06/2020 11:03:01 :::