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Punjab-Haryana High Court

Ajaib Singh vs State Of Punjab on 24 May, 2011

Criminal Revision No. 96 of 2004                                   1

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                              Criminal Revision No. 96 of 2004
                              Date of Decision : 24.5.2011.
Ajaib Singh

                                               ...... Petitioner
                              Versus
State of Punjab
                                               ...... Respondent

CORAM :             HON'BLE MR. JUSTICE NAWAB SINGH

Present:            Mr. Anant Kataria, Advocate,
                    for the petitioner.

                    Mr. Ranvir S. Chauhan, Addl. AG, Punjab,
                    for the respondent-state.
NAWAB SINGH J.(ORAL)

Challenge is to the order dated November 4th, 2003 passed by Special Judge, Fatehgarh Sahib, whereby, petitioner was ordered to be charged under Sections 21 and 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and was charge-sheeted accordingly.

2. On August 5th, 2003 petitioner was intercepted. He was found in possession of the following drugs:-

1. 600 tablets of Nitraz-10,

2. 600 tablets of Nitrazepam,

3. 6200 capsules of Hypnodor-10,

4. 200 capsules of Parvon Spas,

5. 2000 tablets of Phenotil,

6. 100 injections of Norphine,

7. 240 tablets of Ativan.

3. The recovered items were sent to the Forensic Science Laboratory, Punjab, Chandigarh for analysis. Vide its report dated August 12th, 2003 (Annexure P-4) following ingredients were found in the drugs:-

     Quantity of                                      Parcel No.
                         1          2           3         4          5       6      7


Diphenoxylate            2.4        -           -         -          -       -      -
Hydrochloride
(Average mg/cap)
Atropine   Sulphate 0.25            -           -         -          -       -      -
(Avergage mg/tab)

Nitrazepam               -          9.8         9.9       9.8        -       -      -
(average mg/tab.)
Lozazepam                -          -           -         -          1.9     -      -
(Average mg/tab.)

Buprenorphine            -          -           -         -          -       0.29   -
Hydrochloride
(Average mg/ml)
Dextropropoxyphene -                -           -         -          -       -      31.9
Hydrochloride
(Average mg/cap)
Dicyclomine              -          -           -         -          -       -      9.8
Hydrochloride
(Average mg/cap.)
Acetaminophen            -          -           -         -          -       -      349.8
(Average mg/cap.)

4. Learned counsel for the petitioner has urged that as per reply filed by the State, only three drugs, that is, Lorazepam, Nitrazepam and Buprenorphene Hydrochloride mentioned at serial No.56, 64 and 92 of the schedule of the NDPS Act respectively fall under the list of 'Psychotropic Substance' and no other drug seized. These drugs do not find place in schedule I appended to the NDPS Rules. Lorazepam and Nitrazepam drugs are mentioned at serial No.294 and 360 respectively in schedule H of the Drugs and Cosmetics Rules under the heading 'Prescription Drugs' and as such do not attract the provisions of the NDPS Act.

5. As far as Buprenorphene Hydrochloride is concerned, the same also does not fall under the definition of 'Psychotropic Substance' vide letter (Annexure P-4).

6. It is not in dispute that these medicines (Lorazepam, Nitrazepam and Buprenorphene Hydrochloride) are not mentioned in schedule I of the NDPS Rules so, the provisions of Section 8 of the NDPS Act would have no application whatsoever.

Section 8 of the NDPS Act contains a prohibitory clause, violation whereof leads to penal offence thereunder. Lorazepam and Nitrazepam are the medicines which are mentioned in schedule H of the Drugs and Cosmetics Rules at serial No.294 and 360 respectively. By a notification dated July 13th, 2010, Rule 65-A was introduced in the NDPS Rules which reads as under:-

"Sale, purchase, consumption or use of psychotropic substances.-No person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945, Rules"

7. A plain reading of the rules brings it to home that no person would sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules. Meaning thereby, these medicines could be sold, of course, after having a valid licence under the Drugs & Cosmetics Act, 1940. In view of this, possession of these medicines does not fall under the NDPS Act.

8. As far as Buprenorphene Hydrochloride is concerned, vide letter (Annexure P-4) issued by Government of India, Ministry of Finance, Narcotics Control Bureau, New Delhi, it has been clarified that Buprenophine does not fall under the definition of 'Psychotropic Substance'.

9. To refute the above proposition, no effective argument has been addressed by the state counsel.

10. For the reasons aforesaid, the revision petition is accepted and the order under challenge is set aside. The petitioner stands discharged. However, the prosecution is at liberty to prosecute the petitioner under the Drugs & Cosmetics Act, 1940 or any other law for the time being in force.

24.5.2011                                 (NAWAB SINGH)
SN                                           JUDGE
        Whether refer to reporter: Yes/No