Madhya Pradesh High Court
Rajendra Bandil @ Raju Bandil vs The State Of Madhya Pradesh Thr on 27 April, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
01
THE HIGH COURT OF MADHYA PRADESH
MCRC-13546/2016
(Rajendra Bandil @ Raju Bandil Vs. State of M.P. & ors.)
Gwalior, Dated: 27.04.2022
Shri Sankalp Sharma with Shri Prashant Sharma and Shri
Sugam Gupta, learned counsel for applicant.
Shri Shiraz Qureshi, learned Public Prosecutor for
respondent/State.
Shri P.C.Soni, learned counsel for respondents No.2 and 3. Petitioner has filed this petition under Section 482 CrPC for quashing FIR bearing crime No. 289/2016 registered on 19.10.2016 for the offence punsihable under Section 21 and 22 of Narcotic Drug and Psychotropic Substance Act, 1985 by Police Station Kotwali Lashkar Gwalior.
Brief facts for disposal of this petition are that on 19.10.2016 at 2:10 pm Assistant Police Sub Inspector Virendra Singh of Kotwali Lashkar Gwalior got secret information infront of Pharma Agency Cooperative Market Lashkar Gwalior, one loading four wheeler bearing registration No. MP07 G 6538 was standing in which Gopal Gupta Pharma Agency narcotic drug codeine phosphate cough syurp phensedyl was stored. The quantity of narcotic drug codeine phosphate was in excess. That owner with the help of his persons is going to send the aforesaid drug somewhere. By entering the information in Rojnamcha and giving information to CSP under 02 Section 41(2) of NDPS Act, he alongwith police personnel and independent witness reached on the spot. Due to urgency, he could not get search warrant. He reached infront of cooperative market where aforesaid vehicle was standing. Driver was sitting on the driving seat. Two persons were sitting on the articles. All of them were inquired. They have stated their names as Atik Ahmad, Raju @ Rajendra Bandil and driver has stated his name as Kamal Kishore @ Lalla. Two persons who were sitting on the carton stated that in carton codine phosphate syrup has been kept. 60 bags were found in which 180 carton of phensedyl syrup were kept. They have stated that the said loading vehicle is in ownership of Gopal Gupta. On the spot they were having no documents. In each bottles 100-100 ml codeine phosphate syrup was filled. Drug and vehicle were seized. Thereafter offence under section under Section 21 and 22 of Narcotic Drug and Psychotropic Substance Act, 1985 bearing crime No. 289/2016 was registered against Atik Ahmad, Raju @ Rajendra Bandil, Kamal Kishore and one Gopal Gupta. After investigation charge-sheet has been filed against aforesaid persons. Sample of phensedyl was went for analysis. As per chemical analysis report, sample of phensedyl cough syurp was found to be of standard quality.
From the side of petitioner it is submitted that loading vehicle seized by police from the spot is phensedyl which is used as a medicine for cough and cold. Total 18000 bottles of 100 ml were 03 seized from the spot. Each bottle filled with 100 ml in which narcotic drug which contained in each bottle is less than permissible limit. Permissible limit is 9.0 to 11.0 MG. It is also contended that applicant is having registration under the Drugs and Cosmecits Act. Annexure- A/4 is the registration certificate, which is valid from 13.2.16 to 12.2.21. It would be appropriate to mention here that the incident took place on 19.10.2016.
The affidavit sumbitted by Suprerintendent of Police Gwalior on 8.10.2018 was to the effect that the strength of drug in each of the bottles as mentioned on the label was 10 mg codeine phosphate per 5 ml of syrup. Each 100 ml bottle contained 200 mg of drug Codine Phosphate, and the entire 18000 bottles contained the total weight of prue drug Codine Phosphate as 3.6 KG. Besides this Government Drug Testing Laboratory Bhopal found the samples to be of Standard Quality meaning thereby that amont of drug as mentioned on the laber was correct i.e. 10 mg Codeine Phosphate per 5 ml of syrup. The permissible limit is 9.0-11.0 mg. The laboratory report shows that it contains 10 mg Codeine Phosphate in each 5 ml. quantity.
It would be appropriate to mention hear that in exercise of powers conferred by Clause (XI) of sub-clause (b) of Section 2 of the Act, the Central Government has issued Notification No.S.O.826(E), dated 14th of November, 1985, which declares certain narcotics substances to be manufactured drugs. The relevant Entry No.35 of the 04 notification reads as follows :-
"morphine (commonly known as 'Codeine'), and Ethyl Morphine and their salts (including Diodine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 miligrams of the drug per dosage unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice."
From the perusal of the above entry, 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 from the application of Section 21 of the NDPS Act.
In the case of Amrik Singh Vs. State of Punjab, 1996 CriLJ, 3329 and Ashok Kumar Vs. Union of India decided on 15.10.2014 in Criminal Appeal No.2976/2014, in similar situation, the Courts held that it is not violative of any provision of the NDPS Act. In the case of Arvind Chandwani Vs. State of Madhya Pradesh in M.Cr.C.No.19922/2015 decided on 28.4.2016, 372 boxes of Phensedyl Cough Syrup bottles containing 100 ml were seized and 37,200 bottles were seized. The coordinate bench of this Court has quashed the proceeding for offence under Section 8 r/w 21 & 22 of NDPS Act, 1985. In the case of Shiv Kumar Gupta Vs. State of MP in criminal revision No.200/2015 decided on 16.2.2015, the accused persons were discharged by a coordinate bench of this Court for 05 offence under Section 8 read with Section 21 of the NDPS Act for they were in possession of 38 bottles of Codex Cough Syrup in similar circumstances.
In this view of the matter, this Court does not deffer from the views adopted earlier by this Court in the cases referred above. It is held that prosecution may consider and take appropriate action, if any provision of Drugs & Cosmetics Act has been violated but, so far as the provisions of Section 21 & 22 of NDPS Act is concerned, the Crime No.289/2016 registered at Police Station-Kotwali Lashkar Gwalior is, therefore, quashed.
The Petition is allowed.
(Deepak Kumar Agarwal) Judge ojha YOGENDRA OJHA 2022.04.28 19:27:47 +05'30'