Madras High Court
Packiaraj vs Union Of India on 29 November, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.(MD)No.11216 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 25.11.2024
Delivered on 29.11.2024
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD) No.11216 of 2020
and
Crl.M.P. (MD) No.5117 of 2020
1.Packiaraj
2.Kaleeswaran ... Petitioners/
Accused Nos.2 & 3
Vs.
Union of India,
Through the Superintendent of Police,
Narcotics Control Bureau,
Madurai Sub Zone, Madurai.
(In NCB F.No.48/1/09/2018/NC3-MDU) ... Respondent/Complainant
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for records pertaining to the complaint
in C.C.No.234 of 2019 on the file of the Principal Special Judge for
NDPS Act cases at Madurai and quash the same as illegal.
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Crl.O.P.(MD)No.11216 of 2020
For Petitioner : Mr.T.Lajapathi Roy
Senior Counsel for
M/s.A.Balaji
For Respondent : Mr.C.Arul Vadivel @ Sekar
Special Public Prosecutor
for NCB cases
ORDER
This petition has been filed to quash the complaint in C.C.No.234 of 2019 pending on the file of the Principal Special Judge of NDPS Act cases at Madurai.
2.The respondent has filed a private complaint against A1 to A3 for alleged offence under Section 8(c) read with Sections 21(c), 22(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation made in the complaint is that on 06.07.2018 at about 4.00 p.m., the Intelligence Officer belonging to NCB received an information to the effect that A1 is in the process of procuring substantial quantity of Alprazolam 0.5mg tablets from A2, who was running KSP Pharma and was selling unauthorizedly without valid documents. In continuation to the above information, it was 2/11 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11216 of 2020 informed to the higher authorities and a team was formed. On 06.07.2018, the team went near a building complex around 19.00 hours and found A1 and A2 walking towards a godown in the first floor of the building. They immediately rushed to the spot and disclosed their identity and also identified A1 and A2. On enquiry, they informed the officials that they had come to the place to take delivery of 500 boxes of becalm 0.5mg tablets containing 0.5mg Alprazolam per tablet. The officials asked A1 and A2 for the relevant documents since it is a 'Schedule H1' drug. It was found that the drug was stored without any license and it was attempted to be delivered to A1 without any documents. A3 is the brother of A2 and he is said to have been contacted A1 and since he was out of town, A1 had come to that place to get the stock from A2.
3.The NCB team identified 573 boxes and 26 strips of the tablet and the total weight was ascertained at 25.863 kilograms. The accused persons (A1 and A2) were arrested based on the statements recorded under Section 67 of the NDPS Act.
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4.In the course of investigation, it was ascertained that A1 to A3 in collusion were diverting the tablets by way of selling it in the medical shop of A1 and were helping A1 in procuring the tablets in bulk quantities. This was done by A2 and A3 without license and without proper documents. A1 was illegally selling the tablets to unauthorized persons and he had sold huge quantities for which he was aided by A2 and A3 who supplied these tablets.
5.Heard the learned counsel for the petitioners and the learned Special Public Prosecutor appearing on behalf of the respondent.
6.The main ground that was urged on the side of the petitioners is that the petitioners are having valid license for wholesale and retail sale of drugs including 'Schedule H' drugs under the Drugs and Cosmetics Act, 1940 and the Rules thereunder. For the possession of the drugs, the petitioners were maintaining invoice and also sale bills apart from maintaining the stock register. A1 was also having a valid retail license issued by the competent authority during the relevant point of time. He was also holding a wholesale license. In view of the same, the 4/11 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11216 of 2020 petitioners sold the tablets to A1. Thereafter, if A1 had sold those drugs without proper prescription or without proper bills and had diverted the same, the petitioners cannot be made liable for the same. Incidentally, it was brought to the notice of this Court that A1 died during the pendency of this case and hence, the charge against A1 has abated.
7.Per contra, the respondent had taken a stand that the voluntary statement of A1 was recorded under Section 67 of the NDPS Act and he has stated that he received huge quantities of Alprazolam tablets and it was illegally diverted without any prescription or bills. That apart, the petitioners did not have a proper license and did not maintain proper stock register and the same is in violation of Rule 65(5) of the Drugs and Cosmetics Rules, 1945. Once such violation is committed, considering the nature of drug, the offence under the NDPS Act is automatically attracted and a prima facie case has been made out for violation of Section 8 of the NDPS Act. To substantiate this submission, the learned Special Public Prosecutor relied upon the judgment of the Delhi High Court in Arvind Kumar v. The State, reported in MANU/DE/0245/2020.
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8.This Court has carefully considered the submissions made on either side and the materials available on record.
9.In the instant case, if this Court finds that the petitioners had a valid license and had also maintained proper records for possessing the Alprazolam tablets which is a 'Schedule H' drug, the charge against the petitioners will have to automatically fall.
10.It is seen from records that there is a drug license issued in favour of KSP Pharma which has been renewed from time to time. The same is available at page nos.37 to 42 of the convenience set filed on the side of the petitioners.
11.It is also seen that there is a drug license issued in favour of A1, who is the proprietor of M/s.Sakthi Medicals. Therefore, the supply of the tablets to A1, per se cannot be held to be illegal and A1 after getting the drugs selling it illegally to third parties without proper prescription or bills, cannot be put against the petitioners. For that action, 6/11 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11216 of 2020 A1 has to independently face the prosecution.
12.It is also seen from records that for the subject seized drug there are purchase bills available at page nos.43 and 44 of the convenience set. Likewise, for the subject seized drugs, there is also an entry available in the inward ledger maintained by A2. This documents is available at page nos.45 to 47 of the convenience set. For the sale of the drugs to Sakthi Medicals, sale bills are also available from page nos.48 to 50 of the convenience set.
13.It is therefore quite evident that the petitioners were dealing with the drugs by properly accounting for the same and by holding a valid license.
14.In the instant case, the FIR itself came to be registered based on the information that an attempt was made to sell the drugs without proper bills. There is nothing illegal in selling the drugs in favour of A1 since A1 was also having a proper license and was a wholesale dealer. When proper documents are available, the respondent 7/11 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.11216 of 2020 cannot fasten the penal liability against the petitioners only on the ground that A1 was diverting the drugs to third parties in large quantities without proper bills or prescriptions.
15.It has been established by the petitioners that all the records and relevant forms have been maintained by the petitioners in accordance with the Drugs and Cosmetics Act, 1940 and Rules thereunder. The above documents that have been placed before this Court are of unimpeachable character and sterling quality and can be acted upon by this Court.
16.Even as per Section 8(c) of the NDPS Act, possessing a drug for medical purposes by way of proper license, permit or authorization, will not attract the offence. The continuation of the proceedings against the petitioners will only result in abuse of process of law since the petitioners have not committed any offence and hence, it requires the interference of this Court in exercise of its jurisdiction under Section 482 of Cr.P.C.
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17.In the result, the proceedings in C.C.No.234 of 2019 on the file of the Principal Special Judge of NDPS Act cases, Madurai, is hereby quashed and this Criminal Original Petition stands allowed. Consequently, connected miscellaneous petition is closed.
29.11.2024
NCC : Yes
Index : Yes
Internet : Yes
PKN
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Crl.O.P.(MD)No.11216 of 2020
To
1.Union of India,
Through the Superintendent of Police,
Narcotics Control Bureau,
Madurai Sub Zone, Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.11216 of 2020
N.ANAND VENKATESH,J.
PKN
Crl.O.P.(MD)No.11216 of 2020
Dated: 29.11.2024
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