Madhya Pradesh High Court
Kaushlesh Chaturvedi vs The State Of Madhya Pradesh on 6 October, 2017
THE HIGH COURT OF MADHYA PRADESH
MCRC-323-2017
(KAUSHLESH CHATURVEDI Vs THE STATE OF MADHYA PRADESH)
06-10-2017
Shri Prakash Upadhyay, learned counsel for the
petitioner.
Shri Pramod Choubey, learned GA for the
respondent/State
This petition under Section 482 of Cr.P.C has been filed to invoke the extra ordinary jurisdiction of this Court and to quash the proceedings of Special Case No.08/2015, pending before the Special Judge (under NDPS Act) Rewa.
2. The facts relevant for adjudication of this petition are that on 11.9.2014, on the tip of an informer, Police Station Mangawan, District-Rewa intercepted the motor cycle bearing Registration No.MP 17 MC-6877, on which two persons were travelling namely Kaushlesh Chaturvedi (Petitioner) and Sanju @ Sanjeev Kol. They were carrying 107 bottles of Rexcof Syrup. The persons were taken into custody and on interrogation it is stated that the 107 Rexcof bottles of syrup was given to them by accused Vimal Singh, who is running a medical store. Five bottles of Rexcof Syrup has also been seized from accused Vimal Singh. He has also been taken into custody after completion of investigation. Challan No.316/2014 was filed on 30.9.2014. The learned Special Judge (NDPS) Rewa framed charge against the petitioner on 22.5.2015 under Sections 8(C) and 21(B) of the NDPS Act, 1985.
3. On behalf of the petitioner, the same has been challenged on the ground that the Court below failed to appreciate that the Drug Codeine Phosphate is a medical drug and, therefore, offence under NDPS Act, 1985 is not made out. It is also stated that the drug is sold for medical use. The Codeine Phosphate Rexcof Syrup is manufactured under Section 2(11) of NDPS Act is a concentration of a Codeine. The permissible limit is 2.5% but in the present syrup it contains only 0.20% of Codeine. The purchase, stocking, transporting and sale of the syrup do not contravene the provisions of NDPS Act and the rules made thereunder.
4. The syrup is used in therapeutic practice for the treatment of cough. The prosecution has failed to appreciate that if any medical drug is sold in contravention of Drugs and Cosmetic Act, 1940 or the rules framed thereunder, the prosecution is authorized to prosecute the person under due process of law. But no such averment is made out in the complaint. It is also pleaded that under similar circumstances in numerous cases, this Court has earlier passed orders, therefore, the petitioner is in parity and is entitled for quashment of the criminal proceeding launched against him.
5. Learned Government Advocate for the respondents/State opposed the contentions and submits that the petitioner and accused persons violated the provisions of NDPS Act, in transporting 107 bottles of Rexcof Cough Syrup, containing Codeine Phosphate, a product of Narcotic Drug, therefore, the petitioner has committed an offence under the NDPS Act.
6. Perused the police diary. Section 21 of the NDPS Act 1985 provides for punishment for contravention in relation to manufactured drugs and preparations. The term "manufactured drug" has been defined under Section 2 (11) of the Act. It means that inter-alia any narcotic substances or preparation which the Central Government may declare by notification in the Official Gazette to be a "manufactured drug". The Central Government has declared certain substance to be "manufactured drug" under the notification No.S.0.826(E) dated 14th of November, 1985. The entry No.35 of the notification is relevant in this regard.
"Methyl 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 miligrams of drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice."
7. The provisions of Section 21 of the Act, if read conjointly, with the aforesaid, it is clear that a preparation, containing not more than 100 mgs of codeine phosphate per dosage unit with the concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice, is exempted.
8. In the present case, the report of the ITL Labs Private Limited shows that the Rexcof Cough Syrup 100 ML contained 9.95 mg in one sample, 10.01 mg and 9.88 mg in other samples, whereas the limit of Codeine phosphate is 9.0 mg to 11.0 mg as per the ITLC-33 method. Which means the Codeine phosphate contained in the seized bottles is within the limit claimed in the Label i.e. 10mg per 100 ml Syrup.
9. The Rexcof syrup has been manufactured by Cipla Company. The contents of each bottle is taken to be correct, even though as the Rexcof syrup was being sold as a schedule H drug, the same cannot be taken as a substance being sold as "opium derivative". Because it was being sold as medication drug. There could be a possibility of storing and selling the drug from a place where the license has not been granted or in violation of any condition of Drugs and Cosmetics Act. As has been earlier discused, the preparation of the drug has been approved by the notification dated 14th of November, 1985 issued by the Central Government.
10. In the earlier cases i.e. Amrik Singh Vs. State of Punjab [1996 Cr.L.J. 3329 (P&H High Court)], Rajiv Kumar Vs. State of Punjab [1998 Cr.L.J. 1460 (P&H High Court)], Sanjeev Kumar Dwivedi & Anorther Vs. State of Madhya Pradesh [2016 SCC Online MP 4242] and in the case of Rohit Chadha Vs. State of Madhya Pradesh Criminal Revision No.1621/2015 vide order dated 15.10.2015, the Courts have held that the aforesaid syrups are not 'manufactured drug'. Therefore, in view of the above, even if the allegations contained in the charge-sheet and the documents filed therewith are taken at their face value and presumed to be true, no offence under Section 8 read with Section 21 of the NDPS Act is made out against the petitioner. Though the petitioner may be liable for contravention of Drugs and Cosmetics Act, 1940 and the Rules made thereunder. The prosecution may initiate appropriate action against the petitioner in accordance with the provisions of the Act, 1940.
11. With the above observations, this petition is allowed. The proceedings against the petitioner Kaushlesh Chaturvedi pending before the Special Court under the NDPS Act, Rewa for offence under Section 8(C) & 21 (B) of the NDPS Act is quashed. Before parting with the case, it would be appropriate to direct for transmission of a copy of this order to the Drug Inspector, Rewa for taking appropriate action in compliance of the above.
(SUSHIL KUMAR PALO) JUDGE nd