Rajasthan High Court - Jodhpur
Vasudev vs State on 5 January, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
1.
S.B. CRIMINAL REVISION PETITION NO. 31/2012
(Vasudev Vs. The State of Rajasthan)
DATE OF ORDER : 05.01.2012
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. Vineet Jain, for the petitioner.
Mr. Anil Joshi, Public Prosecutor.
The present revision petition has been filed by the petitioner challenging the order dated 26.11.2011 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar in Sessions Case No.41/2011, whereby, he has framed the charge against the petitioner for the offence under Section 8/22 of the NDPS Act.
Briefly stated facts necessary for the disposal of the revision petition are that the SHO, Police Station Keshrisinghpur registered an FIR on 16.05.2011 on the basis of a recovery said to have been effected from the house of the petitioner, whereupon, the following tablets said to be covered under the NDPS Act were recovered.
(i) Alto 0.5 mg
(ii) Alprasal
(iii) At-two
(iv) Lomotil
(v) Eqbron
(vi) Parvon Spas Capsule
(vii) Rexcof 100 ML
Based on the said recovery, the investigation was conducted and thereafter the charge-sheet has been filed in the concerned court against the petitioner and the learned trial Judge thereafter proceeded to frame charge against the petitioner for offence under Section 8/22 of the NDPS Act, whereupon, the present revision petition has been filed assailing the charge.
Learned counsel for the petitioner arguing for quashing of the charge has submitted that this Court in the case of Jawahar Lal Vs. State of Rajasthan (S.B. Criminal 2. Revision Petition No.1012/2011) has decided the issue in relation to certain medicinal preparations not being covered under the definition of psychotropic substances with reference to the Schedule of psychotropic substances as issued under Section 2 (xxiii) of the NDPS Act.
Thus, learned counsel submits that the order of the learned Judge framing charge against the petitioner is absolutely illegal and has been passed with total non application of mind. He further submits that the tablets Parvon Spas are not covered under the definition of the psychotrophic substances or a narcotic drug by virtue of Notification No.S.O. 40(E) dated 29.01.1993. He also submits that the syrup Rexcof also does not fall within the definition of either psychotrophic substances or a narcotic drug by virtue of the very same Notification as the concentration of the Codein Phosphate in each bottle is not beyond the permissible limit as per the Notification. Thus, he submits that the matter be remanded back to the learned trial court for reconsideration of the question of charges as per the Schedule of psychotropic substances and the Notification issued by the Central Government as interpreted by this Court in the case of Jawahar Lal Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1012/2011).
Learned Public Prosecutor has opposed the revision petition but not in a position to dispute this fact that the learned trial Judge has framed the charge without making proper consideration of the schedule of psychotropic substances and the Notification No.S.O. 40(E) dated 29.01.1993 to find out whether or not the covered medicinal preparations are covered by the said schedule.
Resultantly, this revision petition succeeds. The order dated 26.11.2011 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar is set aside. The learned trial Judge is now directed to reconsider the question of charge framed against the petitioner after taking into account the definition of psychotropic substances as 3. prescribed under the Act and the Schedule of psychotropic substances as well as the Notification No.S.O. 40(E) dated 29.01.1993 and thereafter to record a specific finding as to whether the recovered articles are covered under any of the Schedule or Notification issued under the Act. The learned trial Judge shall also consider and decide that if the recovered articles do fall within the said Schedule or Notification, then, whether they fall within the commercial quantity or small quantity as prescribed under the NDPS Act and thereafter necessary directions for trial shall be issued according to the findings thus arrived. That apart, the question of framing charge under the Drugs and Cosmetics Act against the petitioner shall also be considered by the learned trial Judge.
The revision petition as well as stay petition stand disposed of accordingly.
(SANDEEP MEHTA), J.
ms rathore