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Punjab-Haryana High Court

Sandeep Kumar vs State Of Punjab on 10 May, 2012

CRM No. M 2755 of 2012                                                1


    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                               CHANDIGARH
                                        --

                                  CRM No. M 2755 of 2012
                                  Date of decision: 10.05.2012

Sandeep Kumar                                          ........ Petitioner
            Versus
State of Punjab                                          .......Respondent(s)


Coram:      Hon'ble Ms Justice Nirmaljit Kaur
                     -.-
Present:    Ms Meena Salwan, Advocate
            for the petitioners

            Mr. K D Sachdeva, Addl. A G Punjab
            for the respondent (s)
                  -.-
      1.    Whether Reporters of local papers may be
            allowed to see the judgment?

      2.    To be referred to the Reporter or not?

      3.    Whether the judgment should be reported in
            the Digest?

Nirmaljit Kaur, J. (Oral)

This is a petition under Section 482 Cr.P.C for quashing of FIR No. 154 dated 27.08.2011 under Sections 21/22/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'the Act'), registered at Police Station Sadar Amritsar along with all the subsequent proceedings arising out of the same.

At the time issuance of notice of motion i.e. on 02.02.2012, the following order was passed:-

"Contends that the recovery of drugs do not fall under the NDPS Act and, if at all, it is a case under the Drugs and Cosmetic Act, 1940.

Notice of motion for 10.05.2012.

Let, the matter be referred to the Committee constituted for the purpose vide this Court order dated 22.03.2006 passed in Criminal Revision No. 1834 to go into all such matters and see in case any offence under the NDPS Act is made out in those cases where the recovery of drugs is involved and specially when these persons are having license to run Chemist shop. The Committee is requested to decide the case before the next date of hearing.

The report of the Committee be placed on the record as soon as it is available for taking further action in the matter.

Meanwhile, the personal appearance of the petitioner before the trial Court is exempted except as and when required."

In pursuance of the said order, now, the learned State counsel has placed on record a copy of the letter dated 08.05.2012 of Additional Director General of Police, Crime, Punjab, Chandigarh along with report of the Review Committee in Court today for kind perusal of this Court. The same is taken on record.

As per the said report of the Review Committee, the technical opinion of Drugs Inspector is as under:-

"As per FSL report No. 6859 dated 27.09.2001 Parcel No. 1,2 was found to contain Dextropropoxy phene Hydrochloride 15 mg/cap, Dextropropoxy phene Napsylate 14.96/mg/cap. As per Govt. of India notification no. 826 E dated 14.11.1985, listed at sr. No. 87 if a unit dosage from of Dextropropoxy phene HCL contains not more than 135mg, then it does not fall under NDPS Act. Parcel No. 3, was found to contain Diphenoxylate Hydrochloride 1.23 mg/tab as per CRM No. M 2755 of 2012 3 Government of India notification No. 826 E dated 14.11.1985, listed at sr. No. 58 if a unit dosages form of Diphenoxylate Hydrochloride not more than 2.5 mg then it does not fall under NDPS Act. Parcel No. 4, was found to contain Codeine Phosphate 1.01 mg/5ml. As per Govt. of India notification No. 826(E) dated 14.11.1985, listed at Sr. No. 87 if unit dosage form of Codeine Phosphate contains not more than 100mg. Then it does not falls under NDPS Act.

Dicyclomine HCL and Paracetamol, Acetaminophen and Chlorophenearmine Maleate are neither Narcotic nor Psychotropic Drugs. Thus, these drugs do not fall under NDPS Act. However, the accused also did not produce records of the drugs kept by him for sale at time of seizure. Therefore, in my opinion, accused contravenes Drugs and Cosmetic Act, 1940."

Further, as per the said letter, the recommendation of the committee is as under:-

"In this case, the committee is of the opinion that as per FSL report Parcel No. 1 and 2 were found to contain Destropropoxy phene HCL, Destropropoxy phene Napsylate. As per Govt. of India Notification No. 826 (E) dated 14.11.1985, listed at sr. No. 87. Parcel No. 3 was found to Diphenoxylate HCL listed at Sr. No. 58. Parcel No. 4 Codeine Phospate listed at Sr. No. 87 in the above said Notification. Dextropropxy phene contains not more than 135 mg, Diphenoxylate HCL contains not more than 2.5 mg, Codeine Phosphate contains not more than 100 mg. Thus, these drugs do not fall under NDPS Act.

However, the accused did not produce records of the drugs kept by him for sale at time of seizure.

Accused has contravened Drugs and Cosmetic Act, 1940.

Thus, as per the aforesaid report, no offence under Narcotic Drugs and Psychotropic Substances Act, 1985, is made out. However, the provisions of Drugs and Cosmetic Act, 1940 have been violated.

This Court, in the case of Johnson and another vs. State of Punjab in Crl. Misc. No.25319-M of 2004 vide Order dated 11.10.2006, in similar circumstances, held as under -

" After reviewing the present case, the aforementioned committee concluded that no offence under NDPS Act was made out and the allegations disclosed commission of offence under the Drugs and Cosmetic Act only. The conclusion of the Committee in respect of the present case is reproduced here-in-below:-

" Do not attract the provision of NDPS Act 1985 because psychotropic substance salts are not found in recovered medicines. Accused deserved to be charge under Drug & Cosmetic Act, 1940. Recommended for cancellation."

As a result of above, I hold that no offence under the provisions of NDPS Act is made out against the petitioners. The prosecution allegation disclose commission of an offence under the Drugs and Cosmetic Act. However, the petitioners cannot be prosecuted for the offence under the Drugs and Cosmetics Act on the basis of FIR as only a complaint by the Drugs Inspector was competent for initiating action against the petitioners in accordance with the provisions of that Act."

In another case of Pawan Kumar and another vs. State of Punjab (CRR No.165 of 2009, decided on 28.01.2010), this Court allowed CRM No. M 2755 of 2012 5 the revision petition by holding as under :-

"In view of the recommendations of the Committee and above discussion, the petitioner can be prosecuted only under the Drugs and Cosmetic Act.

Accordingly, the present revision petition is allowed and the impugned order dated 15.11.2008 (Annexure P-1) passed by the Special Judge, SAS Nagar, Mohali whereby the petitioners have been charged for offences under Sections 22/61/85 of NDPS Act in consequence of FIR No.243 dated 12.08.2008 registered at Police Station Kharar, District SAS Nagar, is quashed. However, the State is at liberty to proceed against the petitioners under the relevant provisions of the Drugs and Cosmetic Act."

Thus, in view of the recommendations of the Committee and above discussion, no offence under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985, is made out against the petitioner. The prosecution allegation discloses commission of an offence under the Drugs and Cosmetics Act.

Accordingly, the present petition is accepted and the proceedings launched against the petitioner under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 by way of registration of the said FIR are quashed. However, the concerned Drug Inspector is at liberty to proceed against the petitioner under the relevant provisions of the Drugs and Cosmetic Act by filing a criminal complaint, if so advised.

(Nirmaljit Kaur) Judge 10.05.2012 mohan