Rajasthan High Court - Jodhpur
Jawahar Lal vs State on 20 December, 2011
Author: Sandeep Mehta
Bench: Sandeep Mehta
1.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: O R D E R ::
S.B. CRIMINAL REVISION PETITION NO. 1012/2011
(Jawahar Lal Vs. State of Rajasthan)
S.B. CRIMINAL REVISION PETITION
UNDER SECTION 397 READ WITH
SECTION 401 CR.P.C.
DATE OF ORDER : 20 December, 2011
PRESENT
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. H.R. Chawla, for the petitioner.
Mr. Ashok Prajapat, Public Prosecutor.
BY THE COURT :
REPORTABLE The present revision petition has been filed by the petitioner challenging the order dated 03.09.2011 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar in Sessions Case No.26/2011, whereby, he has framed the charge against the petitioner for offence under Section 8/22 of the NDPS Act.
Assailing the order of framing charge, learned counsel for the petitioner submits that in this case, the recovery which has been made from the petitioner is of pharmaceutical drugs i.e. medicines and, thus, charge for 2. offence under Section 8/22 of the NDPS Act has wrongly been framed against the petitioner.
Learned counsel for the petitioner submits that though the medicines i.e. Spasmo-Proxyvon capsules, Alprazolam tablets and Parvon Spas tablets have been recovered from the house of the petitioner but simply the recovery of the medicines by itself cannot be a ground for framing charge against the petitioner. He submits that the petitioner is a licensed pharmacist and mere possession of the medicines at his house cannot make the petitioner liable for the charge under the NDPS Act. It has also been submitted that the possession of the tablets is otherwise also not an offence under the Act because the medicines which have been recovered are over the counter drugs. Even if the possession of the said drugs is illegal, then also, the prosecution against the petitioner at best could have been launched for the offence under the Drugs and Cosmetics Act.
Per contra, learned Public Prosecutor has opposed the revision petition. He submits that now-a-days misuse of the pharmaceutical drugs particularly Spasmo-Proxyvon tablets and Alprazolam tablets is being done rampantly and these medicines are being misused as psychotropic substances for the purpose of intoxication and that is why the Central Government has brought these medicines within the ambit of psychotropic substances covered by the definition of 3. Psychotropic Substances as given in Chapter-I Section 2 (xxiii) of the NDPS Act and since the medicines in question are covered under the definition of psychotropic substances, the illegal possession thereof would very much amount to an offence under the NDPS Act and thus the learned trial Judge has not committed any error while framing charge for offence under Section 8/22 of the NDPS Act against the petitioner.
Learned Public Prosecutor submits that since the recovery of the tablets in question from the premises of the petitioner has been made on the basis of the information given by the co-accused Yasin Khan, therefore, the learned trial Judge also has to consider framing of charge under Section 8/29 of the NDPS Act against the petitioner for having sold the offending drugs to Yasin Khan. He thus prayed that a direction to the learned trial court in this regard be given whilst rejecting this revision petition.
I have heard learned counsel for the parties, perused the order impugned, record of the case annexed with the revision petition and have given my thoughtful consideration to the arguments advanced at bar.
The question before this Court is whether the medicines which have been recovered from the petitioner's house are covered under the definition of psychotropic substances within the meaning of the NDPS Act and if so then the question further would be as to whether the 4. possession thereof is an offence under the Act so as to make the petitioner liable for facing trial under the Act.
The definition of the psychotropic substances has been given in Chapter-I Section 2 (xxiii) of the NDPS Act, which reads as under :-
"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"
Thus, the psychotropic substance is a substance which has been included in the list of psychotropic substances specified in the Schedule. A perusal of the Schedule, list of psychotropic substances discloses that dextropropoxy phene, which the chief constituent of the capsules Spasmo- Proxyvon and Parvon Spas is not mentioned in the Schedule. However, Alprazolam, which is the constituent of the drug Alprazolam is mentioned at Serial No. 30 of the Schedule. Thus, the Aprazolam tablets definitely fall under the definition of psychotropic substances as given under the Act. However, the two Notifications were issued in the year 1985 being Notification No. S.O. 826(E) and in the year 1993 being Notification No. S.O. 40(E), as per which, the dextropropoxy phene has been brought within the ambit of manufactured narcotic drugs.
Subsequently under the NDPS Act, the Table under sub-clause 7(a) and 23(a) under Section 2 of the Act has 5. been enacted in the year 2001, as per which, the small and commercial quantity of the narcotic and psychotropic substances drugs have been mentioned. Dextropropoxy Phene, which is the constituent of Spasmo-Proxyvon and Parvon Spas drugs, has been mentioned at Serial No.33 of the said Table. As per this Table, 20 gms of dextropropoxy phene is the small quantity and 500 gms is the commercial quantity. Thus, the possession of dextropropoxy phene has also been made punishable under the NDPS Act as per the Table enacted in the year 2001 as being a manufactured narcotic. But the Notification of 1993 adds another rider for bringing the dextropropoxy phene within the ambit of a narcotic drug. Dextropropoxy phene is mentioned at Item No.87 of the said Notification, which reads as under :-
Item No.87 of the aforesaid Notification reads as under:-
"(+)-4-dimethylamino-1, 2-diphelyl-3-
methyl{1-2butanol 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 preparations do not contain any substance control under the Convention on Psychotropic Substances, 1971."
The Alprazolam tablets, which have been recovered from the house of the petitioner contain the constituent 6. alprapar, which has been mentioned at serial No.178 of the table with 5 grams of Alprazolam being the small quantity and 100 grams thereof being the commercial quantity. Thus, it cannot disputed that the possession of all these tablets constituents an offence under Section 8/22 of the NDPS Act.
The Hon'ble High Court of Punjab and Haryana in the case of Rajeev Kumar Vs. State of Punjab, reported in 1998 Cr.L.J. 1460 had an occasion to consider this Notification and it was held that unless and until the presence of more than 135 mg. Destroproxyphene hydrochloride is found in the single dosage of the drug, the shall not be covered under the NDPS Act.
In the opinion of this Court, from the perusal of the Notification referred to above, it becomes clear that before the charge for offence under Section 8/22 of the NDPS Act is framed against a person found in possession of medicinal tablets covered under the Notification of 1993, it has to be shown that the quantity of the prohibited drug in a single dosage unit was in excess of the permissible limits as prescribed under the Notification.
Un-disputedly, as per the seizure memo prepared at the time of the recovery, the tablets Spasmo-Proxyvon and Parvon Spas contained 100 mg and 65 mg of Dextropropoxy Phene respectively. Thus, the psychotropic contents of the (one capsule) single dosage unit of the 7. aforesaid tablets is well within the limits of 135 mg per dosage unit prescribed under the Notification dated 29.01.1993 and therefore, the capsules of Parvon Spas and Spasmo-Proxyvon cannot be said to be infringing the provisions of NDPS Act because the psychotropic substance per capsule is below the prescribed limit of 135 mg. Apparently, in this case, the limits as prescribed under the Notification have not been exceeded in the medicinal tablets so recovered.
However, no such limit is prescribed for the Alprazolam tablets in the above Notification. Thus, the illicit sale of the Alprazolam tablets to the co-accused Yasin Khan definitely makes the petitioner liable for the charge for offence under Section 8/22 of the NDPS Act.
This brings this Court to consider the question whether the possession of the medicinal tablets even by licensed persons at places different from the prescribed places of business as per license is a punishable offence or not if they are not covered under the NDPS Act.
This Court is of the opinion that Spasmo-Proxyvon and Parvon Spas tablets are Schedule-H drugs and cannot be kept in the possession of any person without any valid license and cannot be sold without proper prescription. Un- disputedly the petitioner was having these medicines in his possession at his residence. Even if the petitioner is a licensed druggist or pharmacist then also, he could not have 8. stored the tablets at a place other than the licensed premises.
Thus, the question of framing charge under the Drugs and Cosmetics Act against the petitioner has also to be considered in this matter.
Resultantly, the order framing charge under the NDPS Act against the petitioner so far as the same relates to the recovery of Spasmo-Proxyvon and Parvon Spas tablets is concerned is quashed. It appears that the learned trial Judge has overlooked to frame the charge for the illicit sale of the Alprazolam tablets by the petitioner to co-accused Yasin Khan. The total Alprazolam if calculated from the number of tablets recovered (1000 tablets containing 0.5 mg each of Alprapar) comes to 500 mg which would be below the small quantity. Thus, the charge for the conspiracy/abetment for selling the said psychotropic drug to the co-accused Yasin Khan is also to be framed against the petitioner.
Accordingly, this revision petition succeeds. The order dated 03.09.2011 passed by the learned Special Judge, NDPS Cases, Sri Ganganagar in Sessions Case No.26/2011, whereby, charges have been framed against the petitioner is hereby quashed and set aside.
The matter is remanded back to the learned trial Judge to pass a fresh order on the question of framing charge and while framing the charges, the question of 9. framing charge under the Drugs and Cosmetics Act shall also be considered by the learned trial Judge.
(SANDEEP MEHTA), J.
ms rathore