Tripura High Court
Sri Ramu Saha vs The State Of Tripura on 4 March, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
Crl.Petn 4 of 2022
Sri Ramu Saha,
Son of late Chandra Mohan Saha,
Resident of East Shibnagar,
Near Udichi Club,
PO: Dhaleswar, PS: East Agartala,
District: West Tripura, PIN: 799004.
---Appellant(s)
Versus
1. The State of Tripura,
Represented by the Ld. Public Prosecutor,
High Court of Tripura, PO: Kunjaban,
PS- New Capital Complex,
Sub-Division: Sadar, District: West Tripura
2. The Commissioner & Secretary,
Home Department, Government of Tripura,
New Secretariat Complex, Gurkhabasti, Agartala,
PO- Kunjaban, PS- New Capital Complex,
Sub-Division: Sadar, District: West Tripura
3. Sri Sanjib Debbarma
(Investigating Officer of Raniz Bazar
PS Case No. 20/2020 dated 29.04.2020)
Sub-Inspector of Police, Ranir Bazar Police Station,
District: West Tripura.
----Respondent(s)
Crl.Petn 5 of 2022 Sri Ramu Saha, Son of late Chandra Mohan Saha, Resident of East Shibnagar, Near Udichi Club, PO: Dhaleswar, PS: East Agartala, District: West Tripura, PIN: 799004.
---Appellant(s) Versus
1. The State of Tripura, Represented by the Ld. Public Prosecutor, High Court of Tripura, PO: Kunjaban, PS- New Capital Complex, Sub-Division: Sadar, District: West Tripura
2. The Commissioner & Secretary, Home Department, Government of Tripura, Page 2 of 13 New Secretariat Complex, Gurkhabasti, Agartala, PO- Kunjaban, PS- New Capital Complex, Sub-Division: Sadar, District: West Tripura
3. Sri Litan Bhadra (Investigating Officer of East Agartala PS Case No. 68/2020 dated 30.04.2020) Sub-Inspector of Police, East Agartala Police Station, Agartala, District: West Tripura.
----Respondent(s) For Petitioner(s) : Mr. P Roy Barman, Sr. Adv.
Mr. S. Bhattacharjee, Adv.
Mr. K. Chakraborty Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. PP
Date of hearing : 21.02.2022
Date of pronouncement : 04.03.2022
Whether fit for reporting : Yes.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
The present criminal petition is filed since they are involved on the same point and facts and laws and common points to be decided, the both petitions are clubbed and heard and decided by way of this common order.
Crl.Petn 4 of 2022 [2] This is petition under Section 482 of Cr.P.C 1973, for quashing/setting aside the impugned FIR bearing No.2020 RNB 020 dated 29.04.2020 insofar as it relates to the Petitioner, registered in Raniz Bazar Police Station, West Tripura, against one Sri Krishna Kanta Debnath & Sri Chandan Debnath under Sections 21(c)/25/27(A)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
Crl.Petn 5 of 2022 [3] This is petition under Section 482 of Cr.P.C 1973, for quashing/setting aside the impugned FIR bearing No.2020 EAG 068 Page 3 of 13 dated 30.04.2020 registered in East Agartala Police Station, Agartala, West Tripura, under Sections 21(c)/ 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 against Petitioner.
[4] It is agreed by the counsel for the parties to decide both the Criminal Petition 4 of 2022 and Criminal Petition 5 of 2022 together. For the sake of convenience the parties are referred to as in the cause title of Crl.Petn 4 of 2022.
[5] The brief facts of the case is that the petitioner is conducting the business of medical shop under the name and style of "Trisha Medical Agency" for many years and he is having a valid license and the same has been renewed. He has been selling Spasorid Poxivon capsules along with all permissible drugs.
[6] The investigating officer had registered FIR bearing No.2020 RNB 020 dated 29.04.2020 alleging that the petition is selling Spasorid Poxivon capsules and the same is prohibited and the drug contained in the said capsule is Tramadol Hydrochloride, Di-cyclomine hydrochloride & Chlorpheniramine Meleate included in the Schedule H1 drug under the Drugs & Cosmetics Rules, 1945.
[7] The text of the complaint dated 29.04.2020 is extracted below:
Officer-in-Charge Raniz Bazar Police Station Ranir Bazar, West Tripura Subject: Submission of complaint.
Sir, I Sri Mithun Saha, SI of Police (U/B) of Raniz Bazar Plice Statoin do hereby lodge a complaint for taking lawful action against the below noted accused persons to the Page 4 of 13 effect that, on 29/04/2020 at 09:05 hrs a secret information has been received by me to th effect that one Krishan Kanta Debnath and Chandan Debnath both are brothers and residents of Mohanpur are selling banned SP tablets in their shops without any prescription as narcotic drugs. They have good stock in their house. The information was reduced to writing vide Ranir Bazar PS DDE No.-10 dated 29.04.2020. OC PS has informed the matter to immediate senior, SDPO, Jirania and obtained permission to conduct raid.
On the above information, I along with inspector Soumen Das (OC RNB PS) W/C 1910 Rupali Shil and personnel of F/71 CRPF and other staff left PS for Mohanpur to conduct raid and search. Search authorization could not be obtained without affording opportunity for concealment of drugs of escape of offender, This refers to RNB PS GDE No.11 of dated 29.04.2020. On arrival at Mohanpur the raiding party cordoned the shop of Krishna Kanta Debnath and Chandan Debnath. Two independent witnesses Tapan Debnath and Tapas Debnath have been called in Pre Search memo have been prepared and we offered ourselves to be searched.
After conducting search at the shop of Krishna Kanta Debnath the following items were recovered.
i) Total 62 (sixty two) nos. of SPASORID- POXIVON Capsules, manufactured in India by RIDLEY LIFE SCIENCE PVT. LTC, D-1651, DSIDC, INDL, Complex, Narela, Delhi 110010, having Batch No. SPS - 1909, Mfg date Nov-
2019, EXT Date- OCT 2021, weighing approx 40 grms which was found inside the packet and marked as ―A‖.
ii) Total Cash Rs. 1,29,200/- (Indian Currency) One Lakhs Twnety Nince thousand Two hndred) found in the Janakalyan Medical Shop and from the possession of Sri Krishna Kanta Debnath (break up of seized Denomination are :- 2000 x 07 nos = 14,000/- (Fourteen thousand,), ii) 500 x 66 nos + 33,000,/- (Thirty three thousand), iii) 200 x 300 nos. = 60, 000 (Sixty thousand), iv) 100 x 183 nos. = 18, 300/- (Eighteen thousand three hundred), v) 50 x 78 nos. = 3900/- (Three thousand Nine hundred).
On being asked through notice under Section 67 NDPS Act, Krishna Kanta Debnath could not produce any document in favour of possession of the recovered tablets. Accordingly the recovered items were seized and sealed in presence of witnesses observing legal formalities.
Subsequently, in the similar manner search was conducted in the shop of Chandan Debnath and the following items were recovered;
i) Total 47 (Forty seven) nos. of SPASORID - POXIVON Capsules, manufactured in India by RIDLEY LIFE SCENCE PVT. LTD D-1651 DSIDC, INDL. Complex, Narela, Delhi 110040, having Batch No.SPA-1909, Mfg date NOV- 2019 Exp Date OCT 2021, weighing approx 30 gms. Which was found inside the Capsuel packet and exhibit marked as ―B‖.
Page 5 of 13On being asked through notice under section 67 NDPS Act Chandan Debnth could not produce any document in favour of possession of the recovered tablets. Accordingly the recovered items were seized and sealed in presence of witnesses observing legal formalities.
On spot interrogation, Krishna Kanta Debnath disclosed that he has a stock of SP tablets in his house and sale proceeds are stored in a wooden almirah at the dwelling room of Chandra Debnath. Accordingly on their lead, raiding team reached the house of Krishana Kanta Debnath and Chandan Debnath, Pre-Search memo was prepared and we offered ourselves to be searched in presence of independent witnesses. Accordingly, at the first instance search was made in the rooms occupied by Krishna Kanta Debnath and his family. During search in an under construction building belonging to Krishna Kanta Debnath the following items were recovered. .....75 (Seventy Five) nos. packets of SPASORID - POXIVON Capsules, manufactured in India by RIDLEY LIFE SCENCE PVT. LTD D-1651 DSIDC, INDL. Complex, Narela, Delhi 110040, Mfg LIC No.1930 having Batch No. SPA 1909, Mfg date Nov-2019, Exp Date OCT 2021. Each packets contains 06 strips of capsules, each strip contains 24 nos. of capsules, total 10800 nos (Ten thousand Eight hundred) capsules, weighing approx 675 gms. (Every 24 capsules weight 15 gms.) These 75 packets are found in 02 nos of cement bags.
Accordingly the recovered items were seized and sealed n presence of witnesses observing legal formalities.
Subsequently in the similar manner search was conducted in dwelling room of Chandan Debnath and the following items were recovered and sealed.
i) Total Indian Currency an amount of case Rs. 10,09,765/-(Ten laksh Nine thousand seven hundred and sixty fi) found n the wooden Almirah, in the house of Sri Chandan Denbath, Break up of seized denominations are:
i) 2000 x 11 nos. = 22, 000/- (Twenty two thousand).
ii) 500 x 1140 = 5,70, 000/- (Five lakhs seventy thousand).
iii) 200 x 1144 nos. = 2,28,800/- (Two laksh Twnety eight thousand Eight hundred)
iv) 100 x 1814 nos. = 1,81,00/- (One lakhs Eighty one thousand Four hundred).
v) 50 x 90 nos. = 4,500/0 (Four thousand five hundred)
vi) 10 x 131 nos. = 1,310 (one thousand three hundred and ten).
vii) 5 x 15 nos. 75/- (Seventy five only) It may be noted here that the composition of recovered SPASORID-PROXIVON capsules indicates that each capsule contains Tramodol Hydrochloride IP-50 MG.
Tramadol has been notified to be an DNPS vide notification dt. 26th April 2018 and it is entered in Sl.No. 110Y. Besides, both Krishna Kanta Debnath (44) S/o Lt.
Page 6 of 13Indu Bhusan Debnath of Mohanpur East Para, PS-RNB and Chandan Debnath (32) S/o Lt. Indu Bhushan Debnath of DO have failed to produce any document in favour of procurement, possession and selling of SPASORID- PROXIVON capsules which contain Tramadol, an NDPS item; as such both the persons have violated the provisions of NDPS act. Again recovery of the huge amount of cash from the procession of he noted persons indicate accumulation of money earned through illicit trafficking of Narcotic Drugs in violation of provision of NDPS Act.
Hence, I do hereby lodge a written complaint before OC RNB PS to register a specific case against the owner U/s-21(c)/25/27A/29 of NDPS Act for taking lawful action.
Particulars of accused persons:
1. Krishna Kanta Debnath (44) S/o Lt. Indu Bhusan Debnath of Mohanpur East Para, PS- RNB.
2. Chandan Debnath (32) S/o- Lt. Indu Bhushan Debnath of DO Dated-Ranir Bazar, The 29th April, 2020.
Yours sincerely, (SI, Mithun Saha) Ranir, Bazar Police Station) Ranir Bazar, West Tripura.
[8] After perusal of the record, it is clear that the investigation has been over and the chargesheet has been filed. Questioning the charge sheet the present petition is filed before this court. It is pertinent to mention here that after registering the FIR before filing of the chargesheet there were certain events which took place. The accused petitioner in connection with East Agartala PS Case No. 68 of 2020 under Sections 21(C)/29 preferred for bail which was rejected by the learned Special Judge, West Tripura, Agartala. Subsequently, the petitioner moved to this high court for granting pre-arrest bail in BA No.94 of 2020 in connection with East Agartala PS Case No. 68 of 2020 under Sections 21(C)/29. The matter was heard by this court and Page 7 of 13 accordingly, the bail was granted. In the process of granting the bail this court had an occasion to summon Mr. Narayan Goswami, Dy. Drug Controller, Government of Tripura and made some questions. The relevant portion of the bail order dated 14.09.2020 is reproduced herein under:
―During the course of hearing, I have made some questions to Mr. Narayan Goswami, Dy. Drug Controller, Government of Tripura, who is present before the Court today. Mr. Goswami, has categorically stated that ―Tramadol‖ is still listed in the ―Schedule-H1 Drug‖ under the Rules-65 and 97 of the Drugs and Cosmetic Rules, 1945. Mr. Goswami, has further clarified that the Government of India has not banned manufacturing of ―Tramadol‖. Many companies are manufacturing this drug. Mr. Goswami, clarifies that the drug which falls under the H1 schedule of the rules 1945 has to be sold as per prescription of a registered medical practitioner, that means, this medicine can be sold if it is prescribed by a registered medical practitioner.
This Court has made a specific question to Dr. Narayan Goswami, as to whether his department can issue any such direction for storing or selling of the medicine ―Tramadol‖. He has made a specific reply that they have no authority or intention to stop or selling of medicine ―Tramadol‖ for the reason that it is still useful drug for the treatment of cancer patients and many companies are engaged in manufacturing this drug.‖ [9] Heard both sides.
[10] During the course of argument, the counsel for the petitioner argued that the drug tramadol is not in its original form as a bulk drug but it is under seal in the form of capsule permissible by drug controller department by way of Spasorid Poxivon capsules. The composition of this capsule which is the subject matter of the present criminal petition is combination of Tramadol Hydrochloride-50mg, Dicyclomine Hydrochloride -10gm and Chlorpheniramine Maleate -
4mg. Counsel for the petitioner further argued that, once this is a Page 8 of 13 permissible drug for sale, it cannot be treated as Narcotic Drug. In so far as the case of prosecution is that the capsules were seized elsewhere other than the licensed premise and the batch number was not as per the invoice i.e. the stock seized is 1909 but whereas the distributor supplied vide batch no. 1911 to the petitioner. The petitioner is innocent and has no mens rea knowledge and he is nowhere connected with the unauthorized premise from where the capsules with batch No.1909 have been seized. The petitioner is only conducting the business in his licensed premises and selling the medicines as per the medical prescription and there is no violation and crime committed as contemplated in the FIR and prayed for quash the chargesheet accordingly.
[11] Mr. S. Ghosh, learned Addl. PP filed has counter affidavit and also argued that the tramadol drug is included in the schedule H1 Drug under the provision of Drugs and Cosmetic Rules, 1945 and the petitioner has committed crime in storing the seized capsules (Spasorid Poxivon capsules) in a godown which is a unauthorized premise and through his driver and other henchmen he is selling the capsules without medical prescription and also without any bill and making huge profit in illegal manner.
[12] The statement recorded by the investigating officer pertaining to agent and driver of the petitioner herein categorically strengthen the case of the prosecution against the petitioner who is dealing with narcotic drugs in gross violation of law and is punishable in Page 9 of 13 view of the charges framed against him and prayed to dismiss the criminal petition.
[13] Mr. Ghosh, learned Addl. PP has placed his reliance in Hira Singh and another vs. Union of India and another reported in AIR 2020 SC 3255 where the court has observed in the following manner:
10. In view of the above and for the reasons stated above, Reference is answered as under:
(I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the ―small or commercial quantity‖ of the Narcotic Drugs or Psychotropic Substances;
(III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;
(IV). Challenge to Notification dated 18.11.2009 adding ―Note 4‖ to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed.‖ [14] It is the case of the petitioner that he is conducting business of medical stores and a valid license in the license premise and selling permitted medicines under valid prescription. "Spasorid Poxivon capsules" have been seized by the investigating officer by registering an Page 10 of 13 FIR bearing No.2020 RNB 020 under Sections 21(c)/25/27(A)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 alleging that the said capsules contained tramadol which is a prohibited drug and accordingly it is a offence under Narcotic Drugs & Psychotropic Substances Act, 1985. Referring to Schedule H of the Drugs and Cosmetics Rules, 1945 the drug tramadol hydrochloride is shown at Serial No.25 as per earlier Gazette notification dated 30.08.2013 published by Department of Health and Family Welfare. Later vide the said notification in Schedule H1 the drug tramadol is shown at Sl.
No.45.
[15] It is pertinent to note here the text mentioned in the Schedule H1 in the Gazette notification dated 30.08.2013 which is extracted herein under:
Note: Preparations containing the above drug substances and their salts excluding those intended for topical or external use (except ophthalmic and ear or nose preparations) containing above substances are also covered by this Schedule.‖ [16] The Drug Controller officer Dr. Dhiman Singha, In-Charge Deputy Drugs Controller & Licensing Authority, Government of Tripura, Agartala who was present before this court in B.A No.94 of 2020. On being asked question with regard to selling of the drug which falls under H1 schedule of the rules 1945, the relevant portion of which is stated supra.
[17] This court feels that the tramadol drug which is prohibited is not sold by the petitioner in the form of drug but he is selling medicines which is manufactured by pharmaceutical companies which have valid Page 11 of 13 approval from the government. The Spasorid Poxivon capsules which is the subject matter of the present criminal petition cannot be treated as commercial use, personal use as dealt in NDPS Act and Rules. Since the same is not in the use of drug but in the form of bulk drug, the judgment cited by learned public prosecutor are not relevant to the facts of the case in view of the above observation made by this court. It is not for this court to appreciate the argument of both sides as whether the said Spasorid Poxivon capsules or the drug tramadol is used for curing cancer and whether the doctors are prescribing the said capsules. The only point which falls for consideration before this court is whether the Spasorid Poxivon containing tramadol to be treated as narcotic drug for the purpose of committing an offence under section 21(c)/25/27(A)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
Section 21(c), 25, 27(a) and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 are extracted herein under:
―21. Punishment for contravention in relation to manufactured drugs and preparation.
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
[25. Punishment for allowing premises, etc., to be used for commission of an offence.--
Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.]
27. Punishment for consumption of any narcotic drug or psychotropic substance.--Whoever, consumes any Page 12 of 13 narcotic drug or psychotropic substance shall be punishable,--
(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and‖ [18] In view of the discussion made above, this court is of the strong view that above penal provisions does not attract to a composite form of a capsule which has been approved by the government and duly manufactured by pharmaceutical company under valid authorization by the government and which is available in the open market through the authorized medical store, it cannot be said that the capsule is a narcotic drug and ignoring the other composition like Hydrochloride, Dicyclomine Hydrochloride and Chlorpheniramine Maleate.
[19] Article 19(1)(g) of the Constitution of India provides for right to conduct business towards citizens, however the same with some regulations. The petitioner herein by virtue of his medical store license issued by the competent authority is having a right to conduct pharmacy business and deal with permissible medicines. However, in so far as the regulations of conducting the medical store business is concerned for selling the certain class of medicines under doctor's prescription is concerned that cannot ignored. A medical store trader is supposed to follow the license conditions and further sale the medicines under the valid medical prescription and also to store the medicines under authorized premises. Since the point which falls for consideration Page 13 of 13 by this court is only with regard to treat Spasorid Poxivon capsules containing tramadol basic drug are narcotic drug or not.
[20] In view of the above observation, this court has no hesitation to say that Spasorid Poxivon capsules cannot be treated as narcotic drug and possessing the same under valid license in the licensed premises and selling to the patients under doctor's prescription is not an offence attracting penal provision under the NDPS Act.
[21] With the above observation the petition is allowed.
JUDGE Dipak