Delhi District Court
Cbi vs . 1 Puran Chand, on 19 April, 2010
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (NDPS)
OUTER DISTRICT: ROHINI COURTS:
DELHI
SC No.128N/2008
RCSB2006E0006
U/s 18/22/29 NDPS Act
CBI Vs. 1 Puran Chand,
S/o Sh. Ganda Ram,
R/o Mahadev Colony,
Near Deshraj Colony,
Panipat, Haryana.
2 Jasbir Singh @ Soni,
S/o Sh. Puran Chand
R/o Mahadev Colony,
Near Deshraj Colony,
Panipat, Haryana.
ORDER
1 There was a tipoff that accused Jasbir Singh and his father Puran Chand, involved in illicit trade of Bonorwin injections which contained Buprenorphine, a psychotropic substance, were likely to deliver huge quantity of same to some unknown person on 18.08.2006 near Karnal By Pass Bus Stop, Delhi at 11.30 AM. A raiding party was prepared. At about 11.40 AM, both accused were found standing at the aforesaid bus stand in a suspicious manner. Their movements were watched for about 10 minutes and when they were about to move, they were overpowered. They both were carrying one bag each. They both were made aware about their legal rights and their bags were checked. Bag carried by accused Puran Chand was found containing 26 packets of Bonorwin injections containing Buprenorphine. Each packet contained 10 small packets and each small packet further contained 10 ampoules of 2 ml each. Thus, there were total 2600 ampoules of 2 ml each. From accused Jasbir Singh, 3400 ampoules of 2 ml each were recovered. Those CBI Vs. Puran Chand Page 1 of 11 injections were apparently manufactured by M/s Willmark Pharmaceuticals Pvt. Ltd and when the accused were asked to produce the documents i.e. bill, voucher, license etc. to prove their justified possession, they could not produce any such document. Samples were drawn. On the basis of disclosure statements made by accused persons, residential premises of accused Jasbir Singh was raided and 200 ampoules of 2 ml each of Bonorwin injections were recovered. Samples were sent to CRCL for necessary expert opinion and as per report, injections were found having presence of Buprenorphine. Further investigation failed to show that consignment in question had been supplied either by M/s Willmark Pharmaceuticals or by any of its agent/distributors. According to CBI, there was no clinching evidence to chargesheet M/s Willmark Pharmaceuticals. It is in these circumstances that chargesheet has been filed and Fatherson duo has been sent up to face trial for commission of offences u/s 18/22/29 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act').
2 Arguments on charge have been heard. It would not be out of place to mention here that earlier Sh. Rajan Dahiya, learned Prosecutor for CBI had argued the matter at length. Sh. V.K. Sharma learned Senior P.P. for CBI has also addressed arguments.
3 I have heard Sh. Vikas Arora and Ms. Chandrani Prasad, learned defence counsels.
4 Written submissions have also been placed on record from both the sides.
CBI Vs. Puran Chand Page 2 of 115 Case property was also called during the arguments and the label declaration was found to be as under:
Rx BUPRENORPHINE INJECTION I.P. BONORWIN* 2ml Ampoule FORUMLA Each ml contains: Buprenorphine Hydrochloride I.P. equivalent to 0.3 mg of Buprenorphine water for Injection I.P. q.s. Dose: As directed by the physician Store in a cool and dark place. * Discard if any particle seen. SCHEDULE 'H' DRUG WARNING: To be sold by retail on the prescription of a Registered Medical Practitioner only.
Mfg. Lic. No. 1132B FOR I.V. OR
Batch No. 1889 I.M. INJECTION
Mfg. Date: July 2006
Exp. Date: June 2009
M.R.P. Rs.: 10.25
Manufactured in India by:
WILLMARK PHARMACEUTICALS PVT. LTD. Regd. Off. Majitha Road, Amritsar143004 Willmark.CBI Vs. Puran Chand Page 3 of 11
6 Learned defence counsel has contended that there is no material on record to charge accused persons under any of the provision contained under NDPS Act. It has been argued that though Buprenorphine Hydrochloride is a psychotropic substance yet since its name does not figure in the scheduleI attached to NDPS Rule, Rule 64 NDPS Act does not stand attracted and the prohibition qua its possession as per Rule 64 does not apply. It has been argued that it, being a schedule H Drug, falls under the Drugs & Cosmetics Act 1940 and Rules made thereunder. Defence has also relied upon following judgments.
(i) Ouseph @ Thankachan Vs. State of Kerala (2004) 4 SCC 446.
(ii) Rajender Gupta Vs. State 123 (2005) DLT 55.
(iii) State of Uttaranchal Vs. Rajesh Kumar Gupta JT 2006 (10) SC 8.
7 From the side of CBI, it has been argued that Buprenorphine Hydrochloride is a psychotropic substance and even if such substance is not mentioned in the Schedule attached to NDPS Rules, its possession is offence as its name is clearly mentioned in the Schedule attached to NDPS Act and, therefore, accused persons are liable to be charged under NDPS Act. Ld. Prosecutor has also contended that as per Rule 66 (i) of NDPS Rules, no person can possess any psychotropic substance for any of the purpose covered under 1945 Rules (Drugs & Cosmetics Rules 1945) unless he is lawfully authorized to possess such substance under those Rules. It has been argued that Rule 66 is not limited to the psychotropic substances mentioned in the ScheduleI attached to the Rules and it talks about any psychotropic substance. He has argued that onus is on the accused persons to show that they were lawfully authorized to possess such psychotropic substance and since they have not been able to produce any material, they are liable to be charged under CBI Vs. Puran Chand Page 4 of 11 NDPS Act. It has been argued that as per Section 80 of NDPS Act, simultaneous prosecution under both the Acts is permissible. He has also relied upon judgment of Hon'ble Supreme Court given in the case of Sanjay Kumar Kedia Vs. NCB & Anr 2007 (13) Scale 631. It has also been argued that statute is required to interpreted in such a manner so that the purpose of enactment is achieved and construction should not be in such a way that intention and very objective of enactment is defeated and thwarted away.
8 I have given my thoughtful consideration to the rival contentions.
9 There is no doubt whatsoever to the effect that Buprenorphine Hydrochloride is a psychotropic substance. Reference be made to case of Rajender Gupta (supra). In that case also, situation was precisely similar. It was observed that Buprenorphine Hydrochloride was a psychotropic substance within the meaning of the NDPS Act.
10 But, there was next question which was of vital importance.
11 "Would that in itself make the possession, sale or transportation of Buprenorphine Hydrochloride injections an offence under the NDPS Act, punishable under Section 22 thereof ?"
12 Answer to this all important question was given in negative by Hon'ble Bench. It was observed as under in Para A10: "...In the context of Section 21 of the NDPS Act which is an analogous provision in respect of "narcotic drugs", the Supreme CBI Vs. Puran Chand Page 5 of 11 Court, in the case of Sajan Abraham v.
State of Kerala, (2004) 4 SCC 441 :
(2004 Cri LJ 1757, held (page 443) : "7. It is thus apparent that what is made punishable under Section 21 is possession, sale, purchase, etc. of the drugs and preparations mentioned therein in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder. Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the limits specified under the rule and subject to such conditions as the rule may prescribe, such a person cannot be held guilty of the offence under Section 21 of the Act if it is shown that his possession is not in contravention of such rule."
This would apply equally to the offence punishable under section 22 of the NDPS Act in relation to psychotropic substances. This is clear as, in the case of Ouseph v. State of Kerala, (2004) 4 SCC 446, the Supreme Court had observed that (at page 447) : "If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed."
And, in Hussain v. State of Kerala, (2000) 8 SCC 139 (at page 142), the Supreme Court had already held that :"If it was "psychotropic substance" possession of the same would amount to an offence only if it was in contravention of Section 8 of the Act. That section shows that no person shall possess any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder."
CBI Vs. Puran Chand Page 6 of 1113 Conclusive findings are given Para A11 which reads as under: "A11. Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with "Psychotropic Substances". Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribes the general prohibition. It provides that "No person shall manufacture, possess, transport, import interState, export interState, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I". It is to be noted that this "Schedule I" is different to the Schedule to the NDPS Act. This Schedule I is appended to the NDPS Rules and is in two parts" (I) Narcotic Drugs and (II) Psychotropic Substances. We are concerned with psychotropic substances. There is a list of 33 specific psychotropic substances with entry No. 34 being "Salts and preparations of above". It is significant to note that neither Buprenorphine Hydrochloride nor Buprenorphine find mention in this list. This clearly means that Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules and therefore the general prohibition contained in Rule 64 of the NDPS Rules does not apply to it.
Consequently, Rules 65 to 67, which also have reference to psychotropic substances specified in the said Schedule I, would also not be applicable in respect of Buprenorphine Hydrochloride. In this connection, it is pertinent to point out that there are several psychotropic substances which find place both in the schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example:
CBI Vs. Puran Chand Page 7 of 11Methaqualone4, Delorazepam5, Ketazolam6, Loprazolam7, Pipradrol18, Tetrazepam9. At the same time, there are others like Buprenorphine10, Amphetamine11, Bromazepam12, Lorazepam13, Phenobarbital14 and Pemoline15 which, though specified in the Schedule to the NDPS Act, do not find mention in Schedule I to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in Schedule I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule I to the NDPS Rules. It may be mentioned here that the Supreme Court, in the afore mentioned decisions, was not called upon to examine this aspect of the matter, namely, whether Rule 66 of the NDPS Rules applied to all psychotropic substances or only those specified in Schedule I to the NDPS Rules. It is, therefore, open to this Court to consider and decide this aspect of the matter.
Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in Schedule I shall be in accordance with the conditions of licence granted under the D and C Rules and D and C Act. In other words, insofar as the psychotropic substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the D and C Act and Rules and not by the CBI Vs. Puran Chand Page 8 of 11 NDPS Act or NDPS Rules. Rule 66 relates to possession etc., of psychotropic substances. Subrule (1) thereof provides that no person shall possess "any psychotropic substance" for any of the purposes covered by the D and C Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under the NDPS Rules. The expression "any psychotropic substance"
obviously has reference to those listed in Schedule I to the NDPS Rules. Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance does not find mention in Schedule I to the NDPS Rules, the prohibition qua possession contained in Rule 64 does not apply. That being the case, in respect of such a psychotropic substance, Rule 66 would also not apply as it has reference to only those psychotropic substances which are included in Schedule I to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the transport, import interState or export interState of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule I to the NDPS Rules. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being a Schedule H drug would fall within the rigours of the D and C Act and Rules."CBI Vs. Puran Chand Page 9 of 11
14 All the contentions raised by CBI stand automatically answered in view of aforesaid specific observations. I have also seen the judgment in the case of SANJAY KEDIA (supra). In that case, psychotropic substance was different and moreover, the kind attention of Apex court was not drawn to previous specific Supreme Court's Judgments as mentioned in the case of Rajender Gupta (Supra). Moreover, in other case of STATE OF UTTARANCHAL VS. RAJESH KUMAR GUPTA (supra) decided by Hon'ble Apex court, view taken by Hon'ble Delhi High Court has been approved. In that case, it was observed that medicines seized from the clinic of accused came within the purview of Schedules G and H of the Drugs and Cosmetics Act and it was also not in dispute that medicines Epilan C. Phenobarbitone and Chlorodiazepoxide were found mentioned in Entries 69 and 36 of the 1985 Act respectively but it was also noted that none of these found place in the Schedule I appended to the 1985 Rules. It was held that if the said drugs did not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. It was also held that in view of the fact that the drugs being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Act indisputably were used for medicinal purposes and once the drugs were said to be used for medicinal purposes, it could not be denied that these were acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes".
15 CBI has also relied upon D. RAMAKRISHNAN V. INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU ,2009(4) R.C.R.(CRIMINAL) 315 SC. I, however, feel that CBI cannot draw any advantage out of same at all. In that case as well, said judgment given in the case of STATE OF UTTARANCHAL VS. RAJESH KUMAR GUPTA was noted and even extracted. It was CBI Vs. Puran Chand Page 10 of 11 distinguished merely for the reason that Drugs and Cosmetics At, 1940 did not deal with exports at all and, therefore, accused (licensees) were required to comply with the specific requirements of NDPS Act and the Rules made thereunder and since they neither applied for nor were granted any authority to export by the Narcotic Commissioner or any other authorized Officer, launching of prosecution under NDPS Act was held justified. Question of simpliciter possession was not involved therein.
16 In view of aforesaid legal position, no prima facie case warranting trial under NDPS Act is made out.
17 It, however, needs to be scanned by the concerned Magisterial court as to which provision, if any, of Drugs and Cosmetics Act 1940 has been flouted by the accused and whether accused are required to be charged for any such violation or not.
18 Matter is accordingly remanded to the court of Ld. ACMM (Outer), Rohini who may either consider the matter himself or assign the case to some other court of competent jurisdiction. Accused would appear before the court of Ld. ACMM (Outer), Rohini on 26.04.2010 at 2.00 PM.
Announced in the open Court On this day of 19th April, 2010.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi CBI Vs. Puran Chand Page 11 of 11