Madhya Pradesh High Court
Laxmi Medical Agency Thr. vs The State Of Madhya Pradesh on 10 March, 2017
1
CRR No.744/2016
(Laxmi Medical Agency v. State of MP & Another)
10.03.2017
Shri Abhishek Parashar, learned counsel for the
petitioner.
Shri Kamal Jain, learned Government Advocate for
respondent-State.
Shri Shashank Indapurkar, learned counsel for Central Bureau of Narcotics.
Heard.
1. Petitioner is aggrieved by the order dated 20.07.2016, whereby the Court of Special Judge (NDPS) Gwalior has refused to handover the confiscated drugs namely phensedyl to the petitioner under the provisions of Sections 451 and 457, of the Criminal Procedure Code on the ground that when the drugs were confiscated neither any bill nor purchase bills were produced, which were necessary at the time of transport of such drugs. It is further mentioned that the bills appear to have been prepared subsequently to take drugs in custody and therefore the Court has held that possibility of misuse of such drugs being handed over on custody cannot be ruled out.
2. Learned counsel for the petitioner submits that such presumption on the part of the Special Judge is erroneous and in fact he is the holder of a Valid Drug Licence having validity upto 31.12.2016 issued by the Office of the Food and Drugs Administration, Gwalior. He has produced copy of Invoice dated 06.06.2016 issued by Abbott Health Care Pvt. Ltd. Indore in the name of the firm of the petitioner showing the sale of Phensedyl new cough linctus 100 ML 2 CRR No.744/2016 (Laxmi Medical Agency v. State of MP & Another) and the billed quantity has been shown as 5000. It is his case that since he had purchased the aforesaid medicine on 06.06.2016 from Abbott Health Care Pvt. Ltd. Indore, therefore he was entitled to transport them in favour of M/s. Maa Rukmani Medical stores, Ashoknagar and since medicines were being transferred to Maa Rukmani Medical Stores, Ashoknagar vide Invoice dated 11.06.2016 through Transporter Shri Nagaji Freight Carrier, therefore for such medicines from Transporter Shri Nagaji Freight Carrier being his property, he is entitled to custody of the same in terms of the provisions contained in Sections 451 and 457, Cr.P.C. It is also submitted that the property seized is drug and it has a shelf life, therefore there is probability of its decay and therefore being rendered useless, it should be handed over in the custody of the petitioner subject to conclusion of the enquiry or trial. Petitioner has placed reliance on the judgment of Allahabad High Court in the matter of Baljeet Singh v. Union of India as reported in 2015 (3) Cri. CC 31, wherein it has been held that Phensedyl Cough Syrup is a schedule "H" drug under the Drugs and Cosmetic Acts and is governed under exceptions provided under Entry No.35 of Central Government Notification dated 14.11.1985 issued under Section 2 (xi) (b) of the NDPS Act and therefore cannot be construed as a narcotic drug or manufactured drug, hence, Section 8 of the NDPS Act would not attract. In view of this judgment, it is submitted that admittedly Phensedyl 3 CRR No.744/2016 (Laxmi Medical Agency v. State of MP & Another) Cough Syrup contains codeine within the prescribed quantity, therefore Special Judge erred in denying the custody of the drugs only on the ground that the drugs as confiscated from the Transporter did not carry the Invoice as has been produced by the petitioner.
3. In the opinion of this Court, the provisions contained in Section 451, Cr.P.C. are to be kept in mind. Learned counsel for the respondents submits that during investigation, the property can be kept without handing over its custody as it may be necessary to keep such property for further investigation.
4. From the above discussion, it is apparent that in the light of the law laid down in the case of Baljeet Singh (supra), once phensidyl manufactured by Abbott Health Care Pvt. Ltd. Indore, has been declared to be as Schedule 'H' drug, then for the purpose of investigation and further enquiry, the competent authority under the Drugs and Cosmetics Act is entitled to take samples for testing and these samples can be obtained from the confiscated goods and secondly since the drug has an expiry date of September 2017, it should not be allowed to be wasted by denying custody in favour of the owner and at best if it is found that the petitioner has prepared fictitious bills subsequently or the drugs were handed over for transportation without being supported by the bills of sale or purchase, as the case may be, then that will constitute an offence under the provisions of the Drugs and 4 CRR No.744/2016 (Laxmi Medical Agency v. State of MP & Another) Cosmetics Act, 1940. Intimation regarding this case of the petitioner can be made over to the Controller of the Drugs and Cosmetics in the State of Madhya Pradesh so also the Drugs Controller of India, but denying custody of the goods may obstruct the basic purpose of the provisions contained in Sections 451 and 457, Cr.P.C. Therefore the order dated 20.07.2016 is set aside. The respondents are directed to release the goods so confiscated in favour of the petitioner, but prior to such release, they should intimate the competent authority of the District under the provisions of the Drugs and Cosmetics Act so that they may, if required, obtain samples and also assist the prosecution if there is any violation of the provisions of the Drugs and Cosmetics Act besides NDPS Act. Let this exercise be completed within a period of 30 days from today.
Certified copy as per rules.
(Vivek Agarwal)
meh/ Judge