Tripura High Court
Rita Das (Saha) On Behalf Of Accused Ramu ... vs The State Of Tripura on 14 September, 2020
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
B.A. No. 94 of 2020
Rita Das (Saha) on behalf of accused Ramu Saha
.....Petitioner(s)
VERSUS
The State of Tripura.
.....Respondent(s)
For Petitioner(s) : Mr. P. K. Biswas Sr. Advocate.
Mr. P. Majumder, Advocate.
For Respondent(s) : Mr. R. Datta, P.P.
HON'BLE MR. JUSTICE ARINDAM LODH
O_r_d_e_r
14.09.2020
Heard Mr. P. K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the accused-person. Also heard Mr. Ratan Datta, learned P.P. appearing for the State- respondent through video conferencing.
This is an application filed under section 439 Cr.P.C. for granting pre-arrest bail to the accused-person, namely, Ramu Saha, who has been arrested on 04.05.2020 in connection with East Agartala P.S. Case No. 68 of 2020 under Sections-21(c)/29 of the NDPS Act, 1985. The accused-person has been in custody for more than 120 days. The present bail application has been filed by the wife of the accused- person, namely, Smt. Rita Das (Saha).
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I have perused the case diary as produced by Mr. Datta, learned P.P. for the State-respondent.
The facts behind the arrest of the accused-person are as under:
The accused-person is a registered distributor of medicine of various companies where he procures medicines from other States and sells to the dealers. Similarly, he also sells medicines from his own retail shop. The name of his shop is „Trisha Medical Agency‟, located at Maszid Patti Road, Agartala, West Tripura. The drug controller had issued notice upon the accused-person for storage of drugs at an unlicensed premise, i.e., at the top of the roof of the shop premise. The raid was conducted by the police personnel as well as the officers of the Drug Controller Department, Government of Tripura. Those medicines which were stored in unlicensed premise were seized by the police personnel as well as the officers of the Drug Controller Department under the Drugs and Cosmetic Act, 1940. During seizure, it was found that the accused-person had procured and stored a drug, namely, "Tramadol". On enquiry, it was found that he procured these drugs from one manufacturer, namely, "Om Padmawati Drug Distributor"
situated at Guwahati. The accused-person had brought these medicines "Tramadal" through courier service and paying GST and E-waybills were also issued. The police personnel found during raid that this medicine Page 3 of 8 "Tramadol" is treated as one of the narcotic drugs as per notification dated 26th April, 2018 issued by the Department of Revenue, Ministry of Finance. Ultimately, the police registered a case.
The recovery of the medicine "Tramadol", is the sole reason to implicate the accused-person under the NDPS Act, in view of the notification dated 26th April, 2018. Other allegation is that he stored medicines at an unlicensed place falls under the purview of Drugs and Cosmetic Act, 1940 and Rules 1945.
The present bail application has been moved challenging the implication of the accused under Section-21(c)/29 of the NDPS Act.
Mr. P. K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the accused-person has submitted that the accused-person should not be arrested under the NDPS Act for the reason that he procured the medicine under the licence which was valid till 16.01.2020 and before expiry of his licence period, the accused-person had applied for renewal/retention of his licence w.e.f. 17.01.2020 to 17.01.2025. The Drugs and Cosmetic Department, Government of Tripura did not inform the accused-person about the renewal or retention of his licence, that means, according to Mr. Biswas, learned senior counsel, the accused-person has been running his business with all authorities and under the same licencewhich was granted in the year 2015 and valid up to 16.01.2020. Page 4 of 8
Mr. Biswas, learned senior counsel has further submitted that the accused-person did not suppress anything about the medicines which were brought through registered courier service where he divulged the name of the medicines he was carrying and GST Department also recovered the necessary taxes for such carriage of such medicines. According to Mr. Biswas, there was no illegality in procuring the medicines and selling/storing the same by the accused- person. He further submits that the registered medical practitioners are still prescribing the medicine „Tramadol‟ for the treatment of cancer patients and he has shown some prescriptions issued by the registered doctors of ILS Hospital situated at Agartala, Tripura.
Learned P.P. appearing for the State-respondents drawing my attention from the case diary has submitted that the State Cancer Hospital as well as the G.B.P Hospital are not procuring the said medicine as it has been treated as narcotic drugs. I have seen the statement of the doctors of the GBP Hospital as well as the cancer hospital. From the statement of the doctors of Cancer Hospital, Agartala, it reveals that they are not prescribing this medicine "Tramadol" at present. The concerned authority of GBP Hospital, Agartala has stated that for the last one year they did not procure the medicine "Tramadol" and this statement of the concerned department Page 5 of 8 was made in the month of July, 2020, that means, till the month of July, 2019 they were procuring the medicine "Tramadol".
The principel question revolves around is that whether the accused person, Ramu Saha should be implicated under the NDPS Act. In my order dated 10.09.2020 I made a request to the learned P.P. to ask the Drug Controller of the State Government to remain present in the Court and participate in the hearing for some clarifications. I convey my thanks to the Dy. Drug Controller, he is present today and has participated in course of hearing, which is an immense help to decide the question involved in the present bail application.
Mr. Datta, learned P.P. appearing for the State-respondent has strenuously argued that "Tramadol" has been treated as narcotic substance in view of the notification dated 26th April, 2018, so, the accused-person Ramu Saha has committed an offence under the NDPS Act. However, learned P.P. has submitted that other offences fall under the purview of the provision of Drugs and Cosmetic Act, 1940.
During the course of hearing, I have made some questions to Mr. Narayan Goswami, Dy. Drug Controller, Government of Tripura, who is present before the Court today. Mr. Goswami, has categorically stated that "Tramadol" is still listed in the "Schedule-H1 Drug" under the Rules-65 and 97 of the Drugs and Cosmetic Rules, 1945. Mr. Goswami, has further clarified that the Government of India has not Page 6 of 8 banned manufacturing of "Tramadol". Many companies are manufacturing this drug. Mr. Goswami, clarifies that the drug which falls under the H1 schedule of the rules 1945 has to be sold as per prescription of a registered medical practitioner, that means, this medicine can be sold if it is prescribed by a registered medical practitioner.
This Court has made a specific question to Dr. Narayan Goswami, as to whether his department can issue any such direction for storing or selling of the medicine "Tramadol". He has made a specific reply that they have no authority or intention to stop or selling of medicine "Tramadol" for the reason that it is still useful drug for the treatment of cancer patients and many companies are engaged in manufacturing this drug.
To summarize, I may come to a conclusion that though the drug "Tramadol" has been included in the list of the schedule of narcotic drug, but the Central Government has not issued any such notification regarding banning/stopping of manufacturing or selling or using the said drug. It is still included in the list of schedule of H1 Drug under the provision of Drugs and Cosmetic Rules, 1945.
The petitioner possesses a valid licence for selling any kind of drugs. The only restriction in the licence is that he cannot sale drug Page 7 of 8 which are falling under Schedule-X. From his licence it is clear that the accused-person can procure and sell H1 Scheduled drugs.
In view of above, I do not find any ingredients to book the accused-person, Ramu Saha, under the provisions of the NDPS Act as "Tramadol" still exists as H1 Schedule drug under the Drugs and Cosmetic Act, 1945 and can be sold if prescribed by a registered medical practitioner.
Be that as it may, this Court specified that the accused- person should not face the rigour of Section-37 of the NDPS Act. Accordingly, it is ordered that the accused-person, namely, Ramu Saha, shall be released on bail, on furnishing a bail bond of Rs. 2,00,000/- with two sureties of the like amount to the satisfaction of the learned Special Judge, West Tripura, Agartala.
However, the accused-person is directed to take up the matter with the authorities concerned, i.e., the Drugs and Cosmetic Department, Government of Tripura, and other agencies for clarification about the procurement and selling of the drug "Tramadol" for public interest and in view of the Gazette notification dated 26 th April, 2018, the Drugs Control Department is also directed to bring some clarifications from the concerned department of the central Government viz. (i) as to whether the manufacturing of the medicine "Tramadol" is banned by the central government or not; (ii) whether the drug Page 8 of 8 "Tramadol" which is listed under the Schedule-H1 should be delisted as categorized as H1 drug in view of the Gazette notification dated 26th April, 2018; (iii) whether all the drugs relating to the agencies, physicians and doctors should be directed not to prescribe the drug "Tramadol".
I reiterate that this direction has been given to the Drug Controller, Government of Tripura for public interest and to remove all confusions amongst the drug department, Government of Tripura as well as the medicine dealers, sellers of the State of Tripura. After receipt of such clarifications from the Central Government, the Drug Control Department is requested to issue necessary notification and to apprise all the citizens including the doctors and medicine sellers about the use of this drug "Tramadol".
With the above observations and directions, the instant application stands allowed and thus disposed of.
Return back the case diary JUDGE A.Ghosh