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[Cites 10, Cited by 0]

Delhi District Court

State vs Bhim Singh Tyagi on 30 May, 2013

    IN THE COURT OF SH. BRIJESH KUMAR GARG:  
 SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH­
       EAST) : KARKARDOOMA COURTS, DELHI

SC No.          28/2007
FIR No.         39/2005
PS              Narcotics Branch
Under Section   22/25 NDPS Act 
Case ID         02402R0446842005

State           Versus                             Bhim Singh Tyagi
                                                   S/o Sh. Om Prakash Tyagi,
                                                   R/o C­244, LIG Flats, 
                                                   East of Loni Road, Delhi.
                                                                                                       
Date of Institution                                06.07.2007
Date of hearing Arguments    17.05.2013
Date of Judgment                                   30.05.2013

J U D G M E N T

1. In the present case, the accused is facing trial for the offence punishable U/s 22 (b) of the NDPS Act, 1985. It has been stated in the chargesheet that on 27.06.2005, a secret information was received by Constable Pushpender at Narcotics Cell, Shakarpur, at about 3.30 p.m., FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 1/13 that the accused, who used to manufacture and supply Alprazolam / Alprax tablets, shall come between 5.00 p.m. to 5.30 p.m., from Ghaziabad, in his Maruti Zen Car bearing registration No. DL5CC 6681 and will go to his residence via Loni Flyover and if a raid is conducted, he can be apprehended with the drugs. On receiving the secret information, Constable Pushpender produced the secret informer before SI B.P. Singh, who also informed DCP, N&CP Sh. D.L. Kashyap, on phone, who directed him to take immediate action. Thereafter, a raiding party was prepared and the raiding party reached Loni Chowk at 4.30 p.m. At the spot, several public persons were asked to join the investigations, but nobody obliged and thereafter, the police officials took their respective positions near the spot and a barrier was also raised. It is further stated that at about 5.10 p.m., the accused came in his Maruti Zen bearing registration No. DL5CC 6681 and the same was stopped and the driver was identified by the secret informer, as the accused. Thereafter, introduction of the raiding team was given to the accused and the facts of secret information were also disclosed to him and after explaining him, his legal rights, the search of the accused and the vehicle was conducted. In the search of the vehicle, two cartoons of Alprazolam/Alprax tablets were recovered. FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 2/13 Thereafter, the IO seized the said tablets and took out the samples and seized all the articles and prepared the relevant documents. Before conducting personal search of the accused and search of the vehicle, the notice U/s 50 NDPS Act was also served upon the accused and his refusal was also recorded.

2. After seizure of the Alprazolam/Alprax tablets, the IO also prepared the rukka (Asal Tehrir) and the same was sent to police station, on which, case FIR No. 39/2005 was registered at PS­ Narcotics Branch, U/s 22 & 25 of the NDPS Act.

3. During investigations, the IO arrested the accused and prepared the various documents and also seized the vehicle and got the samples chemically examined at FSL, Rohini. During investigations, he also recorded the statement of the witnesses and after completion of investigations, the chargesheet was filed in the Court and the accused was sent up for trial.

4. Vide order dated 06.05.2011, the charge for the offence punishable U/s 22 (b) of the NDPS Act was framed against the accused, by the Ld. Predecessor of this Court, to which, he pleaded not guilty and claimed trial.

5. During the course of trial, the prosecution has examined a total FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 3/13 of twelve witnesses, who are all police officials. No independent public witness was examined during the trial.

6. After completion of the prosecution evidence, the statement of the accused was recorded U/s 313 Cr.P.C., on 25.04.2013, wherein, he has denied all the incriminating evidence against him and has stated that he is innocent and has been falsely implicated in this case. He has also stated that no recovery of any contraband was effected from his possession. He has also stated that he was running a clinic as B.E.M.S. Doctor and was also running a factory of Ayurvedic medicines and he was having some dispute with one Sh. Shiv Charan Dua, who was also having a factory of manufacturing of Ayurvedic medicines, at Bhiwari. He has also stated that the said Shiv Charan Dua used to supply Ayurvedic medicines to him and due to this dispute with the said Shiv Charan Dua, he has been falsely implicated in the present case, in connivance with the police officials. The accused has not examined any witness in his defence, despite opportunity.

7. After completion of trial, final arguments were addressed by Sh. Sanjay Kumar, Ld. APP for the State and Sh. S.K. Ahluwalia, Advocate, for the accused.

8. During the course of arguments, the main contention of the Ld. FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 4/13 defence counsel has remained that the Alprazolam/Alprax tablets are being used for medicinal purposes and in view of the notification dated 26.02.2003. issued by the Ministry of Finance & Company Affairs, Govt. of India, the salt "Alprazolam" has been deleted from the schedule­II of the NDPS Rules, 1985 and therefore, no offence has been committed by the accused by possessing the Alprazolam/Alprax tablets and the offence U/s 22 (b) of the NDPS Act is not made out against him.

9. On the other hand, the Ld. APP for the State has argued that this submission has already been heard by the Ld. Predecessor of this Court on 06.05.2011, when the order on charge was passed and the charge for the offence punishable U/s 22 (b) of the NDPS Act was framed against the accused. He has also argued that in view of the charge framed against the accused, the accused cannot take the defence of notification dated 26.02.2003 again. He has also argued that the prosecution witnesses have duly proved the possession of Alprazolam/Alprax tablets by the accused and therefore, he should be held guilty and be convicted for the offence punishable U/s 22 (b) of the NDPS Act.

10. I have carefully gone through the case file and I have given my FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 5/13 considered thoughts to the arguments addressed by the Ld. APP for the State and the Ld. defence counsel. Perusal of the record shows that on 27.06.2005, the accused was allegedly found in possession of 123600 Alprax tablets containing Alprazolam salt, without any license or permit. The possession of the said tablets have been proved by the various witnesses i.e. PW­5 ASI Shakir Hussain, Inspector Brij Pal Singh and HC Pushpender. But, the main contention of the Ld. defence counsel has remained that despite possession of the Alprazolam/Alprax tablets, the accused has not committed any offence, as the provisions of Section 8 and Section 22 of the NDPS Act are not applicable to the present case. The Ld. defence counsel has also relied upon the notification of the Govt. of India, dated 26.02.2003, whereby, the salt Alprazolam has been deleted from schedule­II of the Narcotic Drugs and Psychotropic Substances Act, Rules, 1985.

11. The legal position regarding the applicability of Section 8 and 22 of the NDPS Act has been discussed in detail by the Hon'ble High Court of Delhi, in case titled as 'Directorate of Revenue Intelligence Vs. Raj Kumar Arora & Anr.', reported as MANU/DE/2662/2011, FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 6/13 wherein, it has been held as under:­ "16. A perusal of Section 8(d) shows that except for medical or scientific purpose and in the manner and to the extent provided by the provisions of the Act or Rules or Orders made therein and in a case where any such provision imposes any requirement by way of any licence, permit or authorization, produce, manufacture, possess, sell, purchase, transport warehouse, use, consume, inter­State export and import, import into India export from India or tranship any narcotic drug or any psychotropic substance. Thus the twin requirement of Section 8 (d) is that no person shall produce manufacture possess etc. any narcotic drug or psychotropic substance except for any medicinal or scientific purpose and in a manner and to the extent provided by the Act Rules or Orders there under. Thus possession even for medical or scientific purpose has to be in the manner and to the extent provided by the provisions of the Act. Section 22 of the Act prohibits the possession, manufacture, sale etc. of psychotropic substance in contravention of any provision of the Act or any Rule or order made there under. Thus a plain reading of the two provisions shows that the possession, manufacture etc. of a psychotropic substance is an offence except permitted by the provisions of the Act, Rules or orders made there under. However, in the case of medicinal and scientific purpose and in compliance of provisions of the NDPS Act the possession and manufacture, sale etc. is not an offence. Chapter VI of the Rules deal with import and export inter country and Chapter VII deals with manufacture, possession, transportation, import & export, inter country sale, purchase, consumption etc. Both these chapters start with the general prohibition mentioned in the Rule 53 and Rule 64 respectively, according to which sale, purchase inter country and intra country of psychotropic substance mentioned in Schedule I is prohibited. Thus both these general provisions relate to Schedule I of the NDPS Rules and not to the Schedule to the NDPS Act. Buprenorphine Hydrochloride is a psychotropic substance mentioned in the Schedule to the NDPS Act but not mentioned in the Schedule I to FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 7/13 the NDPS Rules. Rule 53 states that subject to the provisions of this chapter import into and export out of India of the narcotic and psychotropic substance specified in Schedule I are prohibited. Thus the import and export inter country of psychotropic substance specified in Schedule I is prohibited except if permitted by the other provisions of the chapter. The only Rule which mentions about the Schedule to the Act is Rule 55 which says subject to Rule 53 no narcotic drug or psychotropic substance specified in the Schedule of the Act shall be imported into India without an import certificate in respect of a consignment issued by the issuing authority. Rule 53 again relates to Schedule I and not the Schedule to the Act. Again similar provisions is in Rule 57 which is also subject to Rule 53."

(emphasis supplied by me)

12. It has been further held as under:

"18. Thus the facts relating to Buprenorphine powder relate to intra country supply. Moreover, it is further stated that so far they had not exported any pharmaceuticals so far, however, they were trying to export Buprenorphine injections to Dubai through Air Cargo, Delhi and that they had already sent their applications to Central Bureau of Narcotics, Gwalior for obtaining export permission but they had yet not received the permission. Even in view of this admission of Respondent No. 3, no case for applicability of Chapter VI of the NDPS Rules is made out. No charge was framed under Section 23 NDPS Act against the Respondents. The Petitioner has not challenged the same before this Court by a petition earlier. To now contend that if the Respondents are not charged for offences under the provisions of NDPS Act, the Petitioner will have no chance to get the charge under Section 23 NDPS Act framed against them. I am not in agreement with learned Counsel for the Petitioner that by interpreting the Statute and the Rules, a penal offence be made out and the Respondents should be tried thereof. Thus, I am of the considered view that the possession and transportation intra country of Buprenorphine Hydrochiloride would FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 8/13 not be an offence under the Act and hence not punishable under Section 22 and 29 of the Act and the learned Trial Court had rightly remanded the matter to the learned Metropolitan Magistrate holding that no case for offnce under the NDSP Act was made out and the learned MM would examine the same in the light of the provisions of D&C Act. 19. The Division Bench of this Court in Rajesh Sharma (supra) has earlier also taken this view. At this stage, it would be appropriate to reproduce the Division Bench decision in Rajesh Sharma (Supra) wherein the decision rendered in Rajesh Kumar Gupta (Supra) of the Hon'ble Supreme Court has been followed and the decision cited by the learned Counsel for the Petitioner duly considered and rejected. In Rajesh Sharma (Supra) it was held:
22. We are now left to consider the decisions cited by the counsel for the parties. The first and most important decisions which needs consideration is that of Rajesh Kumar Gupta (supra). In that decision, the accused was an Ayurvedacharya and the allegation against him was that in the medicines supplied by him, he had been using unlabelled tablets containing psychotropic substances and thereby making the unsuspecting patients addicted to drugs. His clinic and premises were raided and about 70 kgs of pure phenobarbitone was recovered. The accused therein was alleged despatching the said drugs by post also. Charges had been framed against him under Sections 8 and 22 of the NDPS Act. His application for bail before the Special Judge was dismissed. However, the High Court granted him bail and it was against the said grant of bail that the State of Uttaranchal preferred the Special Leave Petition before the Supreme Court. The High Court, in that case, was of the opinion that the substance in question, i.e., phenobarbitone was not listed in Schedule­I to the NDPS Rules and, therefore, the accused could not be said to have committed any offence under Section 8 read with Section 22 of the NDPS Act. In this connection, the Supreme Court analysed various provisions of the NDPS Act and the NDPS Rules, including Section 8 and 22 of the NDPS Act and Rule 53 of the NDPS Rules. While construing the FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 9/13 prohibition contained in Section 8 of the NDPS Act, the Supreme Court observed as under:
.... The said provisions contained an exception which takes within its fold all the classes of cases preceding thereto. Use of the contraband for medical or scientific purposes is, therefore, excluded from the purview of the operation thereof. However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder.
23. The Supreme Court specifically observed that it had not been brought to their notice that the NDPS Act provided for the manner and extent of the passion of the contraband. The NDPS Rules, however, provided for both the manner and the extent, inter alia, or production, manufacture, possession, sale, purchase, transport, import, export etc. of the contraband. In this connection, the Supreme Court considered the provisions of Chapter VI and VII of the NDPS Rules in the following manner:
... Chapter VI of the 1985 Rules provides for import, export and transhipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule­I appended thereto is prohibited. Such prohibitions, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general provisions contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule­I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rule 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 10/13 sale, purchase, consume or use of the psychotropic substances specified in Schedule­I, Rule 65 prohibits manufacture of psychotropic substances; whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67­A provides for special provisions for medical and scientific purposes.... Importantly, the Supreme Court, after a survey of the relevant provisions of the NDPS Act, observed:
The general provisions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule­I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule­I of the Rules prescribes only 35 drugs and psychotropic substances.
24. Referring to the facts of the case, the Supreme Court noted that it was not in dispute that the medicines seized form the clinic of the accused therein fell within the purview of Schedules 'G' and 'H' of the Drugs and Cosmetics Act. It was also not in dispute that the same were mentioned in the Schedule to the NDPS Act, but did not find place in Schedule­I appended to the NDPS Rules. In this context, the Supreme Court made a categorical observation as under:
... If the said drugs do not find place in Schedule­I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences there under.
(emphasis supplied by me)

13. Furthermore, the notification of the Govt. of India, dated 26.02.2003, runs as under:

"Ministry of Finance And Company Affairs (Department of Revenue) NOTIFICATION FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 11/13 New Delhi, the 26th February, 2003 G.S.R. 129(E).­In exercise of the powers conferred by Section 9, read with Section 76 of the Narcotic Drugs and Psychotropic Substances Act,1985 (61 of 1985), the Central Government hereby makes the following rules further to amend the Narcotic Drugs and Psychotropic Substances Rules, 1985, namely:­
1. (1) These rules may be called the Narcotic Drugs and Psychotropic Substance (Amendment) Rules, 2003.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Narcotic Drugs and Psychotropic Substances Rules, 1985 in Schedule II, serial number Alprazolam and the entries relating thereto shall be omitted.

­Sd­ [F. No. V/3/2002­NC] SHYAMALA MOHAN, Under Secy."

14. From the above notification, it is clear that the salt Alprazolam has been deleted from Schedule II of the NDPS Rules, 1985 and therefore, in view of the settled legal position, as discussed above & the notification dated 26.02.2003, I am of the considered opinion that no offence punishable U/s 22 (b) NDPS Act is made out against the accused and accordingly, the accused is hereby acquitted for the offence punishable U/s 22 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

15. The bail bond submitted by the accused on 13.10.2005 shall remain in force, for a further period of six months from today, as per FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 12/13 the provisions of Section 437­A of the Cr.P.C.

16 The accused is further directed to appear before the appellate Court, as and when, the notice is issued to him by the appellate Court, in any appeal, if preferred by the State, against his acquittal.

It is ordered accordingly.

File be consigned to record room, after due compliance.

Announced in the open court Brijesh Kumar Garg on this 30th day of May, 2013. Special Judge NDPS (North­East) ASJ:KKD Courts, Delhi.

FIR­39/2005 PS­Narcotics Branch ASJ/Special Judge NDPS (N/E) Page 13/13