Allahabad High Court
Baljeet Singh vs Union Of India (Ncb) on 15 April, 2015
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 21 AFR Reserved on 09.03.2015 Delivered on 15.04.2015 Case :- U/S 482/378/407 No. - 2107 of 2014 Applicant :- Baljeet Singh Opposite Party :- Union Of India (NCB) Counsel for Applicant :- Ratnesh Chandra Counsel for Opposite Party :- Shikha Sinha Hon'ble Vishnu Chandra Gupta,J.
Judgement Heard Shri Ratnesh Chandra, learned counsel for the petitioner and Mrs. Shikha Sinha, learned counsel for opposite party.
By means of the present petition under section 482 Code of Criminal Procedure (for short ''Cr.P.C'.), petitioner Baljeet Singh has prayed for quashing of the order dated 10.3.2014 framing of charges against the petitioner under sections 8/21,25,29 of Narcotic Drug And Psychotropic Substances Act,1985 (for short 'NDPS Act') passed by the Additional Sessions Judge, Court No. 8, Lucknow in Criminal Case No. 20 of 2014 Union of India Vs. Baljeet Singh and others as well as the entire proceeding of the above mentioned case.
Brief facts for deciding this petition are that on 26.8.2013 a raid was conducted on the establishment of the petitioner, wherein he was carrying business of whole sale medicines in the name and style 'M/s Simran Pharma', by a team of officials of Narcotics Control Bureau, Lucknow (hereinafter referred to as ''NCB') on the basis of secret information received that the petitioner is doing an illegal trade of drugs. The establishment of petitioner was situated in shop UGF No. 9, New Medicine Market, Aminabad, Lucknow. During the course of raid, a huge quantity of Phensedyl Cough Syrup, Spasmoproxyvon Capsules and Spasmocip Plus Capsules were found in the godown of the petitioner situated in the IInd floor of the complex in which his shop is situated. In the presence of the petitioner a recovery memo was drawn. The facts mentioned in the recovery memo reveal that following drugs were found;
1.Phensedyl Cough Syrup (Total 10,950 bottles) 62 boxes containing 100 bottles of 100 ml. in each box 95 boxes containing 50 bottles of 100 ml in each box,
2.Spasmoproxyon Capsules, total 1,08,072 Capsules
3.Spasmocip Plus Capsules, total 5,04,000 capsules The petitioner was having no record of purchase and sale of such huge drugs containing Narcotic Drugs and Psychotropic Substances. The articles were seized and samples of recovered articles were sent for analysis. After investigation a complaint was filed by NCB against the petitioner, which has been annexed as annexure no. 1 to the supplementary affidavit.
In the complaint, it has been stated that Phensedyl Cough Syrup contains codeine phosphate, a narcotic drug and Spasmoproxyvon Capsules and Spasmocip Plus Capsules both contain dextropropoxy-phene. It is also stated in the complaint that petitioner in the statement recorded under section 67 of NDPS Act admitted illegal trafficking of the aforesaid narcotic drug and psychotropic substance. It is also stated therein that during the course of pendency of bail before the court of sessions, the petitioner filed certain documents to show the sell of the aforesaid narcotic drug and psychotropic substance to different persons, but after investigation, the same was found to be fictitious.
For the sake of convenience para 44 of the complaint is reproduced herein below:-
"That 1,08,072 Nos. of Spasmoproxyvon Capsules and 5,04,000 Nos. of Spasmocip plus capsules were also recovered from M/s Simran Pharma, New Medicine Market, Lucknow on 26.8.2013. These medicines contained a salt namely ''Dextropropoxy-phene' which is a '' manufactured drug' as notified at Sl. No. 87 of GOI notification No. 862 (e) dated 14.11.1985. The Central Govt. vide their notification No. 252 dated 23.05.2013 suspended the manufacture for sale, sale and distribution of drug namely ''Dextropropoxyphene and formulation containing Dextropropoxyphene for human use with immediate effect. Based on this notification, M/s Wockhardt Limited, Mumbai recalled the stock of spasmoproxyvon capsules which contained ''Dextropropoxyphene' from the market vide his circular dated 10.06.2011 . Inspite of this recall letter, Baljeet Singh, Proprietor of M/s Simaran Pharma knowingly kept these medicines in his godown in huge quantity . Keeping Spasmoproxyvon Capsules in his godown uptil 26.08.2013 (date of seizure) even after suspension of sale by the GOI and recall of the manufacturer from the market is evident of the fact that Baljeet Singh indulged himself in illegal trade of this medicine fully knowing the facts and thus has violated the provisions contained in section 8/21/27A/80 of NDPS Act."
Ashok Kumar, another accused was also found indulged in the trafficking of drug and psychotropic substance with the present petitioner.
The complaint also contained that petitioner along with other known and unknown persons have entered into and with the purpose of criminal conspiracy, abetted each other to purchase, store and sell Phensedyl Cough Syrup containing codeine phosphate, a narcotic drug under NDPS Act, 1985, without proper bills and documents and permitted use of the go-down under his control for storage of drugs and psychotropic substance covered under NDPS Act. On the basis of aforesaid allegations in complaint requested to prosecute and convict them under Sections 8/21/25/30/27-A/80/29 of NDPS Act, 1985. The cognizance has been taken on the basis of complaint. Thereafter impugned order to frame charges was passed. Aggrieved by the aforesaid order, this petition has been filed.
Undisputed facts in between the parties are as follows-
1.That petitioner is the owner of M/s Simran Pharma situate at shop No.UGF 9, New Medicine, Aminabad, Lucknow.
2.That the petitioner was having a drug licence no.-lko/FDA-20B-2903/13 issued under Rule 61 (1) of the Drugs and Cosmetics Rules, 1945 (for short' Rule, 1945') in respect of whole sale business of drug other than Schedules C, C(1) and X , with effect from 2.7.2013 to 1.7.2018.
3.That the petitioner was having a drug licence no.-lko/FDA-21B-2904/13 issued under Rule 61 (2) of 1945 Rules in respect of whole sale business of drug of Schedules C, C(1) excluding drugs of Schedule X , with effect from 2.7.2013 to 1.7.2018.
4.That Phensedyl Cough Syrup (Total 10,950 bottles of 100 ml), Spacmoproxyvon Capsules (total 1,08,072 Capsules) and Spacmocip Plus Capsules (total 5,04,000 capsules) were recovered during the raid from the go-down of the petitioner in his presence.
5.That Phensedyl Cough Syrup contains codeine phosphate which is narcotic drug falling under NDPS Act.
6.That Spasmoproxyvon Capsule and Spasmocip Plus Capsule contain Dextropropoxy-phene salt which is psychotropic substance falling under NDPS Act.
7.That permissible limits of narcotic drug and substances mentioned at serial Nos. 35 and 87 in the Notification issued by the Government of India on 14.11.1985 are reproduced herein below:-
"35.- 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 milligrams of the 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.
87.- (+)-4-dimetylamino-1, 2-diphelyl-3-methyl{1- 2 butanol propionate, (the international non-proprietary name of which is Dextropropoxyphene) and its salts and preparations, admixture, extracts or other substances containing any of these drugs, except preparations for oral use containing not more than 135 mg. of Dextropropoxyphene base per dosage unit or with a concentration of not more than 2.5% in undivided preparation, provided that such reparations do not contain any substances control under the Convention on Psychotropic substances, 1971."
8.That Ministry of Health and Family Welfare of Central Government vide notification dated 23.3.2013 suspended the manufacture for sale, sale and distribution in public interest with immediate effect the drug containing Dextropropoxy-phene or its formulation containing the same for human consumption and human use.
9.That in pursuance thereof manufacturer of Spasmoproxyvon Capsules and Spasmocip Plus Capsules, which were manufactured by M/s Wocord Ltd., Mumbai recalled the stock of Sposmoproxyvon and Spasmocip plus capsule vide its letter dated 10.6.2013. But instead of recall letter of manufacturer, the petitioner M/s Simran Pharma was keeping the aforesaid medicines in his godown.
10. That Phensedyl cough syrup, Sposmoproxyvon and Spasmocip plus capsule are schedule H drug within the meaning of Drug and Cosmetics Act, 1940 (for short D.C. Act).
11. That prosecution initiated against co-accused Ashok Kumar has been quashed by a co-ordinate Bench of this Court vide order dated 15.10.2014 passed in Criminal Misc. Case No. 2976 of 2014 (U/s 482 Cr.P.C.).
12. That while deciding Criminal Misc. Case No.2976 of 2014 instituted by co accused Ashok Kumar, the Court did not deal about the effect of possession of Spasmoproxyvan and Spasmocip Plus Capsules with Baljeet Singh, the petitioner of the present petition.
Learned Counsel for the petitioner relied upon the judgement delivered on 15.10.2014 by this Court in Ashok Kumar's case (Supra) in support of his submissions. The Learned Counsel for NCB heavily relied upon judgement delivered in Criminal Appeal No.660 of 2007 Union of India & Another Versus Sanjeev V. Deshpande decided on 12.08.2014 by Hon'ble Supreme Court.
It has been contended by learned Counsel for petitioner that the recovery alleged to have been made is of manufactured narcotic drugs as is evident from notification of Central Government dated 14.11.1985. The petitioner is holder of whole sale drug licence duly issued under the provisions of DC Act. Therefore, possession of those drugs with petitioner would not be illegal. Mere non production of any bill or vouchers at the time of recovery may at the most constitute the offence under DC Act and not under NDPS Act as held in Ashok Kumar's Case.
Learned counsel for NCB would submit that judgement rendered in the case of Ashok Kumar has been passed ignoring the judgement delivered in Criminal Appeal No.660 Of 2007 Union of India & Another Versus Sanjeev V. Deshpande decided on 12.08.2014, a binding precedent of Hon'ble Supreme Court. As such, the judgement in Ashok Kumar's case has no bearing in the case in hand and the same has been delivered in contradiction with the ratio propounded in Sanjeev V. Deshpande's case. The Apex Court in Sanjeev V. Deshpande overruled it own two Bench Judgement in State of Uttaranchal vs Rajesh Kumar Gupta, (2007) 1 SCC 355, which has been relied upon by this Court in Ashok Kumar's case. As such Ashok Kumar's case has lost it binding effect.
It was further submitted that Judgement passed in Ashok Kumar's case has already been challenged in Supreme Court by NCB in Special Leave Petition, which is pending.
It was further urged that even if Ashok Kumar's case is taken to be of binding effect, which is not admitted to NCB, the same deal with Phensadyl Cough Syrup only and not considered the possession of banned drug containing Dextropropoxy-phene. As such, the possession of Spasmoproxyvon Capsules and Spasmocip Plus Capsules containing Dextropropoxy-phene would fall within the ambit of NDPS Act.
In Criminal Appeal No.660 of 2007 Union of India & Another Versus Sanjeev V. Deshpande decided on 12.08.2014 Hon'ble Supreme Court considered the following referred question:
"Our attention has been invited by the learned counsel to two decisions of this Court; namely, a decision of 3-Judge Bench in Collector of Customs, New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and subsequent decision of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kumar Gupta (2007) 1 SCC 355. Reference was also made of Section 80 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which reads as under:
"80. Application of the Drugs and Cosmetics Act, 1940 not barred. - The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.
In our opinion, in view of the fact that the effect of Section 80 requires to be considered, we grant leave and direct the Registry to place the papers before the Hon'ble the Chief Justice for placing the matter before a 3-Judge Bench."
Section 8(c) is very important so far as to consider the application of Section 8 of NDPS Act. Section 8 of NDPS Act reads as under;
"Section 8. Prohibition of certain operations. -No person shall -
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or 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 and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter- State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Paragraphs no.20 and 21 of the judgment in Sanjeev V. Deshpande are relevant and the same are quoted hereinbelow:
"20......
Rule 66 mandates that-
"no person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules."
21. It is submitted by Ms. Pinky Anand, learned Additional Solicitor General that the High Court of Bombay following two earlier decisions, (one of the Delhi High Court and another of the High Court of Punjab & Haryana), in its judgment, which is impugned in Special Leave Petition No.5714 of 2006, held thus:
"38. So given, as far as psychotropic substances is the present case are concerned, operations pertaining to them are permitted because Schedule I to the Rules do not include them at all. That these substances are included in the schedule to the act is not of any relevance because one has to see everything viz., the Act, the Rules and Order made thereunder together and in a harmonious manner. It is well settled that the psychotropic substance is included in the Schedule to the Act but it is not included in the Schedule I to the Rules, then operations covered by Section 8 cannot be said to be contravening provisions of the Act and, therefore, punishable. That is how, these provisions have been interpreted by Delhi High Court and earlier by Punjab and Haryana High Court. Their views have my respectful concurrence."
The learned ASG submitted that such a conclusion wholly unwarranted on the face of clear language of Section 8(c) of the Act."
Their Lordships while considering the interpretation given in Rajesh Kumar Gupta's case overruled the ratio propounded with regard to Section 8 (c) of NDPS Act and held as follows:
"29. We are unable to agree with the conclusion (reached in Rajesh Kumar Gupta's case) that the prohibition contained in Rule 6311 of the 1985 Rules is applicable only to those narcotic drugs and psychotropic substances which are mentioned in Schedule-I to the Rules and not to the psychotropic substances enumerated in the Schedule to the Act. Such a conclusion was reached in Rajesh Kumar Gupta's case on the understanding that Rule 53 (prohibiting the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I to the Rules) is the source of the authority for such prohibition. Such a conclusion was drawn from the fact that the other Rules contained in the Chapter permit import into and export out of India of certain narcotic drugs and psychotropic substances other than those specified in Schedule-I to the Rules. Unfortunately, the learned Judges in reaching such a conclusion ignored the mandate of Section 8(c) which inter alia prohibits in absolute terms import into and export out of India of any narcotic drug and psychotropic substance. Rules framed under the Act cannot be understood to create rights and obligations contrary to those contained in the parent Act."
While replying the questions posed their Lordships overruled the ratio propounded in Rajesh Kumar Gupta's case and held in para 34 as under:
"34. On the above analysis of the provisions of chapters VI and VII of the 1985 Rules, we are of the opinion, both these Chapters contain Rules permitting and regulating the import and export of narcotic drugs and psychotropic substances other than those specified in the Schedule-I to the 1985 Rules subject to various conditions and procedure stipulated in Chapter VI. Whereas Chapter VII deals exclusively with various other aspects of DEALING IN psychotropic substances and the conditions subject to which such DEALING IN is permitted. We are of the opinion that both Rules 53 and 64 are really in the nature of exception to the general scheme of Chapters VI and VII respectively containing a list of narcotic drugs and psychotropic substances which cannot be dealt in any manner notwithstanding the other provisions of these two chapters. We are of the clear opinion that neither Rule 53 nor Rule 64 is a source of authority for prohibiting the DEALING IN narcotic drugs and psychotropic substances, the source is Section 8. Rajesh Kumar Gupta's case in our view is wrongly decided."
Section 80 of NDPS Act is also important for deciding the matter. Hence, Section 80 of NDPS Act is quoted herein below:
"Section 80. Application of the Drugs and Cosmetics Act, 1940 not barred.--The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act,1940 (23 of 1940) or the rules made thereunder."
Dealing with scope of Section 80 of NDPS Act their Lordships held in para 35 as under:
"35. In view of our conclusion, the complete analysis of the implications of Section 8015 of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. Of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act."
The Question for consideration in Ashok Kumar's case decided by this Court is quoted below:
"The question posed to this Court is whether Possession of 'Phensedyl Cough Syrup' (containing Codeine, an opium derivative), manufactured by a licenced manufacturer, stocked by a licenced stockist in licenced premises would constitute an offence, punishable under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act)?"
After discussing the facts of the case and the law the Court concluded in para 102 as under:
"102. Considering the above noted discussion, relevant provisions of N.D.P.S. Act and Rules, relevant provisions of D & C Act and Rules, judgments rendered by various courts and documents appended with the petition which have neither been disputed nor controverted referred to hereinabove, this Court concludes as follows:
(i) Even if all the facts and circumstances alleged by the prosecuting agency are admitted to be correct, it cannot be said that the petitioner, who was serving as Territory Sales Manager in M/s Abbott Health care Pvt. Ltd. (manufacturer of Phensedyl Cough Syrup), Division at Lucknow, in any way abetted or conspired to commit offence under Section 8 of the N.D.P.S Act as punishable under Section 21 of the said Act. It was the duty of the petitioner to procure orders of Phensedyl Cough Syrup from licenced stockists or distributors and ensure its supply from licenced manufacturer viz; employer of the petitioner.
(ii) Phensedyl Cough Syrup is a Schedule 'H' drug under the Drugs and Cosmetics Act; has been manufactured by M/s Abbott Healthcare Pvt. Ltd, a licenced manufacturer under the D & C Act and Rules; had been stocked by a licenced stockist viz; M/s Simran Pharma, owned by co-accused, at licenced premises.
(iii) Phensedyl Cough Syrup is a therapeutic drug containing 'codeine' within specified limits, as provided under licence of the licenced manufacturer, under Drugs and Cosmetics Act.
(iv) Phensedyl Cough Syrup, as recovered, is covered under exception provided under entry no.35 of Central Government Notification dated 14.11.1985 issued under Section 2 (xi)(b) of the N.D.P.S. Act and, therefore, cannot be construed as a Narcotic Drug or Manufactured Drug, hence, Section 8 of the N.D.P.S.Actwould not be attracted
(v) The Directorate General of Health Services has issued clarification dated 26.10.2005 to specify that Phensedyl is a Schedule 'H' drug under the D & C Act and Rules and although it contains 'codeine' in limited prescribed quantity, would not fall under the provisions of N.D.P.S. Act and Rules.
(vi) Considering the Narcotic contents and nature of Schedule 'H' drug, the manufacture and distribution of the drug has been regulated under the D & C Act and Rules. For that purpose the provisions require the manufacturer, stockist, distributor and seller etc. to obtain licence, which is issued on compliance of certain conditions. If it is ensured that these conditions are adhered and complied with and the Schedule 'H' drug is sold only on prescription, there would be no misuse of the drug. The authorities therefore are required to ensure strict compliance of the conditions of licence so as to prevent its misuse. In the case in hand, if at all, an offence has been committed, it would be under the D & C Act, committed by the stockist viz; the co-accused, for violation of the provisions of Section 18-B punishable under Section 28-A of the D & C Act and/or other provisions.
(vii) This Court is also persuaded in concluding as above by judgments rendered by the Punjab and Haryana High Court in 1996 Cr.L.J. 3329, Amrik Singh v. State of Punjab; 1998 Cr.L.J. 1460 titled 'Rajeev Kumar v. State of Punjab'; 1997 Cr.L.J. 3104 titled 'Deep Kumar v. State of Punjab' and judgment rendered by the Hon'ble Supreme Court of India in Md. Sahab Uddin and another v. State of Assam, decided on 5.10.2012 in Criminal Appeal No.1602 of 2012, S.L.P.(Crl.) No.5503 of 2012 read with judgment of Gauhati High Court in Md.Sahab Uddin and another v. State of Assam (Bail Application no.885 and 886 of 2012, decided on 25.5.2012). Likewise the judgment rendered by the Hon'ble Supreme Court of India in Rajesh Kumar Gupta's case (supra) favours the legal proposition propounded on behalf of the petitioner.
(viii) This Court has also taken into account that N.D.P.S. Act and Drugs and Cosmetics Act, both are Central Legislations. N.D.P.S. Act specifically provides exceptions whereunder a 'narcotic drug' (codeine) can be used for medicinal/therapeutic purposes. Under the provisions of the Act, Central Notification dated 14.11.1985, whereunder prescribed quantity of codeine has been allowed to be included, per dosage unit, has been issued. Admittedly, Phensedyl Cough Syrup contains 'codeine' within the prescribed quantity. Thus, in the considered opinion of this Court Phensedyl Cough Syrup falls within the exception provided under the N.D.P.S. Act and, therefore, its possession with licenced stockists would not invite the penalties under N.D.P.S. Act. Phensedyl Cough Syrup, in the facts and circumstances of this case is required to be considered as a drug under the the Drugs and Cosmetics Act."
Before proceeding further, It would be important to mention here that narcotic drug and psychotropic substance has been defined under the NDPS Act. It not only include the substance in natural form but also its synthetic form or any salt or preparation of such substances. The definition of narcotic drug and of psychotropic substance has been given in Section 2 (xiv) and Section 2(xxiii) respectively, which are extracted below:-
(xiv)"narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs"
(xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;
The word ''manufactured' has also been defined in Section 2 (x) which in relation to narcotic drug and psychotropic substance includes all process other than production by which such drug and substance may be obtained.
The word 'Manufactured Drug' is also defined in Section 2(xi) and is extracted below;
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
The word ''preparation' has also been defined in Section 2 (xx). The same is also extracted below;
"(2)(xx) "preparation", in relation to a narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances;"
Scheme made under the NDPS Act makes it clear that all manufactured drugs which contained narcotic drug or psychotropic substance are initially fall with the ambit of narcotic drug or psychotropic substance. But if it is dealt with in manner prescribed subject to provisions of Section 8 read with Rules 65A and 66 of Rules framed under the NDPS Act, there shall be no offence under NDPS Act. It is clear that D.C. Act and Rules made thereunder have co-relation with the provisions of NDPS Act and they cannot stand in isolation, so far as the present case is concerned. In the present case the alleged manufactured drug, if is covered by notification issued on 14.11.1985, that ipso facto cannot be out of purview of NDPS Act, if not dealt with provisions of Section 8 and Rules 65A and 66 of Rules framed under NDPS Act .
While delivering the Judgement by this Court in Ashok Kumar''s case decided on 15.10.2014, the judgement of Apex Court delivered in Sanjeev V. Deshpande's case decided on 12.08.2014 was not noticed. Consequently, it has to be seen now whether judgement of Apex Court delivered in Sanjeev V. Deshpande, would altered the legal propositions discussed and decided in Ashok Kumar's case?
In Ashok Kumar's case the court concluded that Phensedyl cough syrup is covered under item in para 35 of Central Government Notification dated 14.11.1985 issued under Section 2(xi)(b) of the NDPS Act. The same cannot be construed as a Narcotic Drug or Manufactured Drug. Section 8 of the NDPS Act would not be attracted in this case. If no record has been kept by the licensed dealer of sale and purchase of the drugs, it would not be an offence punishable under N.D.P.S. Act as contained in judgement delivered by the Punjab and Haryana High Court. The view expressed in Ashok Kumar's case is based on aforesaid judgements of Punjab and Haryana High Court and judgement in Rajesh Kumar Gupta case delivered by Apex Court. Thus, mere recovery of Phensedyl cough syrup from the license premises would not constitute any office.
It was held in the case of Ashok Kumar (supra) that Phensedyl cough syrup is a therapeutic drug containing ''codeine' within specified limits and the same is under exception provided in entry no. 35 of Central Government Notification dated 14.11.1985 issued under sub-section 2 (xi) (b) of NDPS Act, therefore, it cannot be termed as a Narcotic Drug or Manufactured Drug. Thus the provisions of NDPS Act would not be attracted. It was further held that Director General Health Services has issued clarification vide its letter dated 26.10.2005 indicating therein that Phensedyl is a schedule ''H' drug under the D.C. Act and Rules made thereunder. Although it contains ''codeine' but in prescribed quantity, would not fall under the provisions of NDPS Act and Rules. The drug is for sale only on prescription and to ensure that there should be no misuse of it. The authorities are required to ensure strict compliance of the conditions of the licence. Offence which according to the allegation has been committed falls under D.C. Act and is punishable under Section 28-A read with Section 13 (b) of D.C. Act and not under NDPS Act.
In Sanjeev V Deshpande's case the ratio propounded in Rajesh Kumar Gupta's case by the Apex Court has been over ruled as is evident from Para 34 of the judgement of Sanjeev V Deshpande. In para 34 of the said judgment the Hon'ble Supreme Court held that both Rules 53 and 64 of NDPS Rules are really in the nature of exception to the general scheme of Chapters VI and VII respectively containing a list of narcotic drugs and psychotropic substances which cannot be dealt in any manner notwithstanding the other provisions of these two chapters. Their Lordships held that they are of the clear opinion that neither Rule 53 nor Rule 64 is a source of authority for prohibiting the DEALING IN narcotic drugs and psychotropic substances, the source is Section 8. Rajesh Kumar Gupta's case in our view is wrongly decided."
Their Lordships in Para 35 of Sanjeev V Deshpande's case ruled that provisions of the NDPS Act operate in addition to the D.C. Act . For this the Hon'ble Supreme Court took reference of Rules 65 and 66 of the NDPS Act wherein it has been provided that no person shall possess any psychotropic substance for any other purpose covered by 1945 Rules which were framed under the D.C. Act, 1940. Therefore, if the person possessing narcotic substance in terms of Rules,1945, cannot be prosecuted under the NDPS Act, but at the same time, if person violates Rules 65 and 66 of 1945 Rules, then that person would be governed by NDPS Act.
Having considered carefully the latest judgement of the Apex Court in Sanjeev V Deshpande's case, which has been heavily relied upon by the counsel for NCB and the Judgement in Ashok Kumar's case, which has been heavily relied upon by the counsel for petitioner, this Court is of the view that terms and conditions of licence issued under 1945 Rules have been violated by the petitioner. The petitioner would not only be prosecuted for violation of the terms of the licence under D.C. Act but could also be prosecuted under NDPS Act for possessing the drug containing dextropropoxyphene in view of the provisions contained in Rules 65 and 66 of rules made under the NDPS Rules No doubt that the petitioner has drug licence, the formate of licence contains condition to be followed by holder of licence. Condition no. 3 and 4 of licenses are very clear and unambiguous contains that no drug shall be sold unless such drug is purchased under cash memo or credit memo from the duly licence dealer or duly licence manufacturer. It further provides that no sale of any drug shall be made to any person not holding and requisite licence for sale, stock or exhibit for sale.
Admittedly, in this case the allegations in the complaint are that the petitioner could not show any document, invoice or Bill in regard to the recovered drugs. Therefore, protection which may be extended to the petitioner under Section 8 and Rule 66 of NDPS Rules cannot be extended and the possession of the the alleged manufactured drugs would be punishable under the NDPS Act.
So far as the Phensedyl cough syrup is concerned, at the most the same can be termed as "manufactured drug" but so far as Spasmo Proxyvon Capsules and Spacmocip Plus Capsules containing dextro propoxyphene are concerned, have been banned, restricted and prohibited to be used for human consumption by notification issued on 23.3.2014 by Central Government under section 26A of D.C. Act and as such, it ceases to be a "manufactured drug" as mentioned in notification issued on 14.11.1985. The possession of it shall certainly fall within the purview of NDPS Act.
Therefore, in view of the notification issued under Section 26A of D.P. Act on 23.3.2014 and withdrawal of the stock of Spasmo Proxyvon Capsules and Spacmocip Plus Capsules by manufacturer prior to recovery of huge quantity and absence of any efforts to return the same by the petitioner to manufacturer in terms of its letter, leaves no room to doubt that the possession of the same was per se illegal and the petitioner cannot take any advantage of possessing the drug licence in legalising its possession. The stock of Spasmo Proxyvon Capsules and Spacmocip Plus Capsules after notification issued by the Central Government under Section 26A of the D.C. Act and withdrawal of Spasmo Proxyvon Capsules and Spacmocip Plus Capsules from the market, the manufactured drugs containing dextropropoxyphene would fall with the definition of narcotic drug and psychotropic substances and would be dealt with under the provisions of NDPS Act and not under the provisions of D.C. Act and rules made thereunder.
One more thing has been pointed out by learned AGA as well as by Counsel for NCB that premises for which drug licence was issued is in respect of particular shop, description of which has been given in the drug licence. But the recovery was not made from that premises mentioned in drug licence but from different premises, i.e., from second floor of same complex.
If the facts broadly taken into consideration, it cannot be said that order framing charges against the petitioner under N.D.P.S. Act are per se illegal or without jurisdiction or no prima facie case is made out to frame charges against the petitioner. The trial court has rightly concluded that it is not a case of discharge. I do not find any reason to interfere in the impugned order. Thus the petition deserves to be dismissed.
Before parting with the case, it is necessary to mention that whatever I have discussed in this judgement touching to the merits of the case would not have any binding on the trial court while deciding the case. The observations made in this judgement are made only with intent to decide this petition and the trial court will proceed with trial without being influenced by any of the findings or observations made in this judgement.
In view of above, this petition is dismissed.
Dated:15.04.2015 GSY