Madhya Pradesh High Court
Arvind Chandwani vs The State Of Madhya Pradesh on 28 April, 2016
MCRC-19922-2015
(ARVIND CHANDWANI Vs THE STATE OF MADHYA PRADESH)
28-04-2016
Shri Manish Datt, learned senior counsel with Shri Rahul
Sharma, learned counsel for the petitioner.
Shri Prakash Gupta, learned Panel Lawyer for the respondent-
State.
Petitioner has filed this petition under Section 482 of the Cr.P.C.for quashment of the proceedings registered against the petitioner in pursuance to the FIR lodged at the police station Kuthla, District Katni vide crime No. 165/2015 for the offences punishable under Sections 8, 21, 22 of Narcotic Drugs & Psychotropic Substances Act, 1985 and Sections 420, 467, 468 & 471 of the IPC.
It is contended by the learned senior counsel that the controversy involved in this petition has already been decided by this Court vide order dated 15/10/2015 passed in Criminal Revision No. 1621/2015, hence, with the consent of the parties, the case is heard and disposed of at motion hearing stage itself.
The police seized a truck of Mishra Freight Career Katni having registration No. WB-23 B- 5891. From the aforesaid truck 372 boxes of Phensedyl Cough Syrup bottles of 100 mg were seized. The allegation against the applicant is that his Medical Agency named as Hind Medical Agency, Jabalpur had sent 50 cartoons of Phensedyl Cough Syrup to be transported to Maa Gauri Enterprises, Lucknow. A FIR was lodged that total 37,200 bottles of Phensedyl Cough Syrup were found in the truck. Sample of the drugs was sent to ITL Labs Pvt. Ltd. Indore. On the basis of the aforesaid facts, the offences punishable under Sections 8, 21, 22 of Narcotic Drugs & Psychotropic Substances Act, 1985 and Sections 420, 467, 468 & 471 of the IPC were registered against the petitioner vide crime No. 165/2015 at police Station Kuthla, District Katni. As per the report of ITL Labs Pvt Ltd. Indore, which has been filed along with the application, the bottles of Phensedyl Cough Linctus were manufactured by the Abbott Health Care Pvt. Ltd. Each 5 ml bottle contains 9.87 ml Codeine Phosphate.
The question is that whether selling Phensedyl Cough Syrup which contains Codeine Phosphate within a limit as mentioned above in the order is an offence or not.
The aforesaid point has been considered by this Court in Criminal Revision 1621/2015. The court has held as under:-
"3. The learned counsel for the applicant has submitted that the police had sent some bottles of the seized syrup as samples for chemical analysis to the ITL Labs Pvt. Ltd., Indore, which is recognized by the Government of Madhya Pradesh. According to the report of aforesaid laboratory, each bottle contains 100 ml. syrup and each 5 ml. syrup contains 9.825 mg. codeine phosphate, whereas a label pasted on each of the bottles claims 10 mgs. Having referred to the circular letters Nos. X-11029/27-D, dated 26.10.2005 and X-11029/09-D, dated 01.03.2009 issued by the Drugs Controller General India to all the State Drugs Controllers and notifications No. G.S.R. 588 (E), dated 30.08.2013, the learned counsel for the applicant submitted that the syrup is not a manufactured drug as per Section 2(11) of the Act as the concentration of codeine phosphate in it is mere 0.20% as compare to permissible limit 2.5%. Hence, the syrup comes under the Schedule H-1 of the Drugs and Cosmetics Rule 1940. Consequently, the acts of purchase, stocking, transportation and sale of the syrup do not attract the provisions of the Act and the Rules 1985 made thereunder. He further submitted that the syrup is used in therapeutic practice for the treatment of cough. Therefore, no offence is made out against the applicant under Section 8(C) read with 21(B) of the Act. Consequently, the learned trial judge has committed gross errors of law and facts by framing the aforesaid charges against the applicant. Therefore, the impugned order of framing of charge insofar as it relates to the applicant deserves to be quashed. In support of the submissions, he placed reliance upon the decisions rendered in the matters of Amrik Singh Vs. State of Punjab [1996 Cr.L.J. 3329 (P&H High Court)] Ashok Kumar Vs. Union of India , (date of order 15.10.2014 passed in Criminal Appeal No.2976/2014 by Hon'ble Shri Justice Ajay Lamba of the Allahabad High Court) and Deep Kumar Vs. State of Punjab [1997 Cr.L.J. 3104 (P&H High Court)].
4 Per contra, learned Panel Lawyer for the respondent/State has supported the impugned order of framing of the charge. He argued that the syrup is widely consumed by the drug addicts for getting intoxication and the applicant is found in possession of huge quantity of syrup for which he has not offered any proper explanation let alone valid licence or permit, meaning thereby the seized quantity of syrup was meant for sale to the drug addicts on premium and not for therapeutic benefits. Hence, the learned judge has rightly framed the charges against the applicant.
5. A seminal question that arises for consideration is whether the syrup comes under the category of the manufactured drugs, as defined and made punishable under the Act?
6. Needless to say that no charge can be framed under the Act if the syrup does not fall within the sweep of the manufactured drug as defined in Section 2(11) of the Act or is exempted from the penal provisions of the Act by framing rules or issuing notifications or orders by the concerned Authority.
7. Section 21 of the Act provides for punishment for contravention in relation to the manufactured drugs and preparations. The term manufactured drug has been defined in Section 2(11) of the Act. It means inter alia any narcotic substances or preparation which the Central Government may declare by notification in the official gazette to be a manufactured drug.
8. In exercise of powers conferred by clause (xi) of subclause (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:-
âÃÂÃÂMethyl 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.âÃÂÃÂ
9. From the perusal of the aforesaid 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. According to the aforestated report of the laboratory, each 5 ml. syrup contains 9.825 mg. codeine phosphate, which is permissible in view of aforesaid entry of the notification. Thus, it is held that the syrup is not a manufactured drug.
11. The learned panel lawyer has justified the prosecution of the applicant on the ground that he had been found in possession of huge quantity of the syrup for which he has not offered any convincing explanation, meaning thereby he wanted to sell the syrup on premium to the drug addicts as they use it for intoxication, whereas the syrup is meant for allopathic treatment of cough. This argument is not tenable for want of any express penal provision in the Act which prescribes the possession of the syrup beyond certain quantity is an offence. This view of mine is fortified by the observations made in the matters of Amrik Singh Vs. State of Punjab (Supra) and Rajiv Kumar Vs. State of Punjab and another [1998 Cr.L.J. 1460 P&H High Court]
12. It is pertinent to mention here that in Criminal Revision No.200/2015 Shiv Kumar Gupta Vs. State of M.P., decided by the order dated 16.02.2015, the applicant has been charged under Section 8(B) read with 21 of the Act on the ground that he and his associates were found in possession of 32 bottles of Cosome LCD Syrup and 38 bottles of Codex Syrup, which are cough syrups. In this case, Hon'ble Justice C.V. Sirpurkar has discharged the applicant of the aforesaid charge on the ground that 5 ml. dosage of the syrup contains 10 mg. codeine phosphate which is less than permissible limit of 2.5%. Hence, the aforesaid seized syrups are not manufactured drugs as defined under the Act. The view taken by his Lordship further strengthens the view which I have taken in the present case.
13. In the aforesaid premises, even if all the allegations made against the applicant in the charge-sheet are taken to be true on their face value despite that no charges under Section 8 read with 21 of the act is prima facie made out against the applicant. Consequently, this revision is allowed and impugned order of framing of charge insofar as it relates to the applicant is quashed and he is discharged of the charges under Sections 8(C) read with 21(B) of the Act.
14. A copy of this order be sent to the concerned area Drug Inspector with a direction to examine whether the applicant has contravened any provisions of the Drugs and Cosmetics Act, 1940 or the rules framed thereunder if so then, he is expected to initiate penal action against the applicant in accordance with law. He is further directed to submit the report in this court within three months from the date of receipt of this order.
15. Accordingly, this revision is finally disposed of."
The Court has specifically 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.
In this view of the matter, this application is allowed. The criminal proceedings initiated against the petitioner vide crime no. 165/2015, for the offences punishable under Sections 8, 21, 22 of Narcotic Drugs & Psychotropic Substances Act, 1985 and Sections 420, 467, 468 & 471 of the IPC, are hereby quashed.
C.C. as per rules.
(S.K. GANGELE) JUDGE MISHRA