Madhya Pradesh High Court
Shiv Kumar Gupta vs The State Of Madhya Pradesh on 16 September, 2015
CRR-200-2015
(SHIV KUMAR GUPTA Vs THE STATE OF MADHYA PRADESH)
16-09-2015
HIGH COURT OF MADHYA PRADESH :
JABALPUR
Criminal Revision No. 200/2015
Shiv Kumar Gupta
Vs.
State of Madhya Pradesh
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri B.K.Vaishya, counsel for the applicant.
Shri K.S.Patel, Panel Lawyer for the respondent/State.
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ORDER
(16-09-2015)
1. This criminal revision filed on behalf of applicant Shiv Kumar Gupta, is directed against the order dated 22-12-2014 passed by Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred in the order as âthe Actâ), Sidhi, in Special Case No.12/2014, whereby a charge under section 8 (b) read with section 21 (b) of the Act, was framed against applicant Shiv Kumar Gupta and two other co-accused persons Vidya Charan Shukla and Ajay Kumar Rawat.
2. Shorn of details, the prosecution case may be stated thus:
On 25-11-2014, Inspector Manish Mishra of P.S. Kotwali, Sidhi, received information from an informer that accused persons Vidya Charan and Ajay are sitting in a Tata Super Loading Vehicle No.MP-55-GA-2257 with Psychotropic drugs for sale for being used for the purpose of intoxication. After completing necessary formalities, they reached the place mentioned by the informer near Gala Mandi Sidhi and raided the vehicle. Accused persons Vidya Charan Shukla and Ajay Rawat were sitting in the vehicle with 32 bottles of Cosome LCD syrup and 38 bottles of Codex syrup in an old white bag. Each bottle contained 100 milliliters of syrup. It was recorded on the label of each bottle that each 5 milliliters of cough syrup contained 10 milligrams of Codeine Phosphate. As such, each bottle of syrup contained 2 milligrams of Codeine Phosphate and 70 bottles of cough syrup contained 14 grams of psychotropic substance Codeine Phosphate.
3. On inquiry, accused persons Shiv Kumar Gupta and Ajay Kumar Rawat informed that Vidyacharan runs a medical shop in the name and style of Vidya Medical Store at Sidhi and Ajay was his driver. They were sitting in the vehicle with the bottles of the syrup for sale to the addicts, who purchased bottles of syrup for the purpose of intoxication, paying Rs.100/- for each bottle. They also informed that the bottles of cough syrup were supplied to them by applicant Shiv Kumar Gupta, who runs a Medical Store in the name of his father, called âShiv Medical Storeâ. Applicant Shiv Kumar Gupta also admitted that he supplied bottles of aforesaid cough syrup to co-accused persons Vidya Charan Shukla and Ajay Kumar Rawat for being sold as intoxicants because the addicts used it for the purpose of intoxication and payed anything between Rs.100/- to Rs.150/- for each bottle, generating huge profits. Police also seized a receipt book of estimates from the possession of applicant Shiv Kumar Gupta. The book contained estimate No. 556 which was in the form of a carbon copy, bearing the date of 22-11-2014, issued in favour of Vidya Medical Store Sidhi, wherein the transaction relating to 72 such 100 m.ls. bottles of Cosome (LCD) was recorded.
4. Applicant Shiv Kumar Gupta has challenged the framing of charge mainly on the ground that both the syrups namely Codex and Cosome are manufactured drugs established in therapeutic practice. Notification No. S.O. 826(E), dated 14th November, 1985, issued by the Central Government in exercise of powers conferred upon it by sub-clause (b) of clause (xi) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), declares certain narcotics substances to be manufactured drugs. Entry No.35 inter alia relates to Methyl Morphine (commonly known as 'Codeine') and Ethyl Morphine and their salts (including Dionine). The concentration in which the Codeine Phosphate was found in Codex and Cosome Cough Syrups, is exempted by Entry No. 35 from the category of manufactured drugs. Thus, it has been argued that neither syrup Codex nor syrup Cosome fall within the purview of manufactured drugs. Therefore, no charge is made out against the applicant under section 8 read with either 21 or 22 of the Act.
5. Learned Panel Lawyer for the respondent/State on the other hand has supported the impugned order framing charge. It has been argued on behalf of respondent/State that syrups Cosome and Codex are widely used for the purpose of intoxication by those who are addicted to Narcotic drugs and psychotropic substances; therefore, no leniency should be shown to the applicant, who in the garb of Medical Store, is supplying contraband to the drug addicts.
6. The question that arises for consideration before this Court is whether any of the above drugs or substances fall within the definition of "manufactured drug" or "psychotropic substance" made punishable under the Act?
7. If any of these drugs or substances does not fall within the ambit of the aforesaid two expressions, or is exempted by the Act or any rule framed thereunder or any notification or order issued thereunder, no charge can be framed under the Act.
8. Section 21 of the Act provides for punishment for contravention in relation to manufactured drugs and preparations. The term âManufactured Drugâ has been defined in section 2 (xi) of the Act. It inter alia means a narcotic substance or preparation which the Central Government may by notification in official gazette, declare to be a manufactured drug.
9. In exercise of powers conferred by sub-clause (b) of clause (xi) of section 2 of the Act, the Central Government had issued Notification No. S.O.826(E), dated 14 th November, 1985, which declares certain narcotics substances to be manufactured drugs. The Entry No.35 of the Notification reads as follows:
âMethyl 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 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice.â
10. From the perusal of the aforesaid entry in the notification, it is clear that a preparations containing not more than 100 milligrams of drug codeine phosphate per dosage unit and with concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice, is exempted from the application of section 21 of the Act.
11. Reverting back to the facts of the case, this Court finds that as per prosecution, the label affixed to each bottle declared that it contains Codeine Phosphate in the ratio of 10 milligrams per 5 milliliters of syrup. 5 milliliters quantity of syrup is equivalent to one dosage unit. As such, both syrups contained Codeine Phosphate in proportion of 10 milligrams per 5 m.ls., that is to say 10 milligrams per dosage unit, which is permissible in view of Entry No. 35 of the Notification. In other words, it also does not fall within the ambit of manufactured drug.
12. Now the Court shall consider as to what was the concentration of Codeine Phosphate in undivided preparations? At the outset let it be mentioned that there is no report of any Forensic Science Laboratory on record. However, in the case of Amrik Singh vs. State of Punjab, 1996 CRI. L. J. 3329, the Punjab and Haryana High Court was faced with similar situation. In that case, cough syrup Phensedyle was seized from the possession of the accused in 125 m.l. bottles. Each bottle contained codeine phosphate in proportion of 9.5 m.gs. per 5 m.ls. The sample was sent to Forensic Science Laboratory and as per the report of FSL the concentration of Codeine Phosphate in undivided preparations came to 1.9%. In the instant case, syrup Codex and Cosome contained Codeine Phosphate in proportion of 10 m.gs. per 5 m.ls., which would surely be less than 2.5% in concentration in undivided preparations.
13. Likewise, in the case of Deep Kumar v. State of Punjab, 1997 CRI. L. J. 3104, on similar grounds, the Punjab & Haryana High Court held that Phensedyle cough syrup was not a manufactured drug, as defined under the Act.
14. It is not disputed that both cough syrups namely Codex and Cosome (LCD) are established in therapeutic practice for treatment of cough.
15. The argument that such syrups are being widely used by the drug addicts as substitutes for narcotic drugs and psychotropic substances by itself, is not sufficient to prosecute the applicant. In this regard, this Court adopts with approval the observations made in paragraph No. 20 of the judgment rendered in the case of Rajeev Kumar Vs. State of Punjab and others reported in 1998 CRI. L. J. 1460, which read as follows:
âIt has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all kinds of intoxicating substances. It may be stated that all penal statutes ought to be construed strictly, that is to say, that the Court must say that the thing charged as an offence is within the plain meaning of the words used and must not strain the words so as to bring it within the mischief of the statute. Maxwell on Interpretation of Statutes, 12th Edition at page 239 says, the strict construction of penal statutes seems to manifest itself in four ways in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.â
16. In aforesaid view of the matter, even if all allegations contained in the charge sheet and the documents filed therewith are taken at their face value and taken to be true, no offence under section 8 read with section 21 of the NDPS Act is made out against the applicant.
17. It is not disputed that the applicant is carrying on business as retail druggist under the name and style of Shiv Medical Store. If the petitioner has contravened any provision of the Drugs and Cosmetics Act, 1940, or the Rules framed thereunder, Drugs Inspector appointed under the that act shall be free to initiate requisite action against the petitioner in accordance with the provisions of that Act.
18. On the basis of aforesaid discussion, this revision petition is allowed. The impugned order 22.12.2014 passed by Special Judge (Narcotic Drugs and Psychotropic Substances Act) Sidhi, passed in Special Case No. 12/2014, in so far as it relates to the applicant Shiv Kumar Gupta, is set-aside and applicant Shiv Kumar Gupta is discharged of the offence punishable under section 8 read with section 21 of the Act.
19. Let a copy of this order be transmitted to the concerned Drug Inspector for information.
(C V SIRPURKAR) JUDGE