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Madhya Pradesh High Court

Ajay Gupta vs The State Of Madhya Pradesh on 1 September, 2017

                        MCRC-837-2017
             (AJAY GUPTA Vs THE STATE OF MADHYA PRADESH)


01-09-2017
                    M.Cr.C No. 837/2017

01/09/2017
Shri S.K. Sharma, learned counsel for the petitioner.
Shri     Santosh    Yadav,    learned     P.L   for     the
respondent/State.

Heard.

This petition has been filed under Section 482 Cr.P.C for quashment of the proceeding registered against the petitioner in pursuance to the F.I.R at Crime No. 470/2016 registered at the Police Station Beohari, District Shahdol for offence under Sections 8/21, 22 of N.D.P.S. Act.

2 As per the prosecution story, on the information by an informer on 09.07.2016 Police Station, Beohari, Kamlesh Mali was intercepted and after giving notice to him, search was made in presence of witnesses. From the possession of Kamlesh Mali, a plastic bag containing 24 bottles each containing of 100 ml. of CHLORHENIRAMINE MALEATE named as COREX has been seized. The same has been seized and sample A1 and A2 were kept for chemical examination. Similarly, 24 bottles were also seized from co-accused Ram Prasad Vishwakarma. Sample B-1 and B-2 has been taken for chemical examination. The accused persons Kamlesh Mali and Ram Prasad Vishwakarma intimated to the police that they obtained the COREX from the applicant Ajay Gupta, resident of Manpur, District Umaria by paying the price.

3 On behalf of the petitioner, it is submitted that the petitioner has been falsely implicated. The prosecution case, if considered in its entirety, does not constitute any offence. The Circular dated 26.10.2005 and 01.03.2009 issued by the Drugs Controller General India to all the State Drugs Controllers and a letter dated 15.10.2012 issued by the Pharmaceutical Company “Abbott,” (the manufacturer of the drug) to its trade partnership show that the drug is not a Narcotic Drug as the concentration of Codeine Phosphate in it is mere 0.20% as compared to permissible limit to 2.5%. The drug comes under the Schedule H-1of the Drugs and Cosmetics Rules, 1940. Therefore, the stocking and sale of the drug do not attract the provisions of the N.D.P.S Act and the Rules, 1985.

4 The petitioner has also placed reliance on 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. 5 It is further claimed that the petitioner has not violated any provisions of the NDPS Act or Rules. The drug is a syrup and less than the concentration of Codeine Phosphate provided in the Drugs and Cosmetic Rule, 1940. Therefore, no offence is made out under Sections 8/21, 22 of N.D.P.S. Act.

6 Perused the record.

7 The Laboratory report dated 12.07.2016 issued by I.T.L, Laboratory Pvt. Ltd., Indore shows that each 5 ml. contains 10.30 mg of Codeine Phosphate, the limit of which is 09.00 mg to 11.00 mg. In the second sample, the result was 10.09 mg in Codeine Phosphate in each 5 ml. of the syrup and in the third sample, it was 9.78 mg Codeine Phosphate for each 5 ml. of the syrup and in the fourth sample, 10.19 mg of Codeine Phosphate for each 5 ml. syrup.

8 It would be appropriate to mention here that in exercise of the 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 November, 1985 which declares certain narcotics substances to be manufactured drugs. The relevant Entry No. 35 of the notification reads as follows:-

“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 milligrams 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.”

9 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 Act.

10 It would be appropriate to hold that 24 bottles of the COREX have been seized from each accused Kamlesh Mali and accused Ram Prasad Vishwakarma. In a similar case 23 bottles of Cosome LCD Syrup and 38 bottle of Codex Syrup, which are cough syrups, seized by the police. In Criminal Revision No. 200/2015 (Shiv Kumar Gupta Vs. State of M.P.) vide order dated 16.02.2015, the applicants were discharged by a co-ordinate Bench of this Court for offence under Section 8 read with Section 21 of the N.D.P.S Act. Similarly, vide order dated 28.04.2016, passed in M.Cr.C. No. 19922/2015 (Arvind Chandwani Vs. The State of Madhya Pradesh), 372 boxes of Phensedyl Cough Syrup bottles of 100 mg were seized and 37,200 bottles were seized. The Co-ordinate Bench of this Court has quashed the proceeding for offence under Sections 8, 21, 22 of Narcotic Drugs & Psychotropic Substances Act, 1985. In the case of Rohit Chadha Vs. State of M.P., 480 bottles of syrup was seized vide order dated 15.10.2015, the co-ordinate Bench of this Court has discharged the accused for offence under Section 8 ( C) read with Section 21 (B) of the N.D.P.S. Act.

11 It is to be held that if 5 ml. of the syrup contains 10 mg. Codeine Phosphate which is less than permissible limit of 2.5% selling or keeping the drugs does not amount to an offence. Therefore, criminal proceeding initiated against the petitioner vide Crime No. 470/2016, registered at Police Station Beohari for offence under Sections 8 read with 21, 22 of N.D.P.S Act, 1985 and subsequent criminal proceedings are liable to be quashed. This petition is allowed.

awinash/ (SUSHIL KUMAR PALO) JUDGE awinash