Punjab-Haryana High Court
Mahesh Raj vs State Of Punjab on 17 September, 2014
CRR No. 1244 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRR No. 1244 of 2014
Date of decision: 17.09.2014
Mahesh Raj ....... Petitioner
Versus
State of Punjab ........ Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. Vishal Aggarwal, Advocate
for the petitioner.
R.P. NAGRATH, J.
In the instant revision, petitioner has challenged the order of framing charge, passed by learned Judge, Special Court in FIR No. 90 dated 01.11.2013, Police Station Dharamgarh for offence under Section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act of 1985'), primarily on the ground that keeping in possession 'Alprazolam' tablets is not an offence, the same being not mentioned in Schedule I of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short 'the Rules'). The other ground of attack is that charge-sheet was presented for offences under Section 22/61/85 of the Act of 1985, revealing the extent of illegality, as Section 85 does not exist even in the Act and Section 61 of the Act JITENDER KUMAR is not relevant to the controversy in as much as latter section 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -2- relates to confiscation of goods used for concealing illicit drugs or substances.
2. At the outset, I would hold that the above contention is misconceived as describing 61/85 in the challan report obviously means, (though not happily described) Act No. 61 of 1985 and it is commonly seen that the police describes the provision in the said context.
3. The version contained in the FIR is that on 01.11.2013, police party headed by Assistant Sub-Inspector (ASI) Sampuran Singh was going on metalled road from village Jakhepal towards village Kanakwal Bhangwan. At about 09.10 a.m. they saw the petitioner holding plastic bag of white colour going towards village Kanakwal Bhangwan and was apprehended on suspicion. The petitioner was apprised of the right to be searched before a Magistrate or a gazetted officer. The petitioner reposed faith in the ASI. The plastic bag was found containing 35 strips each containing 10 tablets of intoxicating tablets marked 'Alprazolam Goldy 0.5'. Two strips were prepared into separate parcels as samples. The total number of tablets recovered from these strips was 350. The contention of the petitioner is that he is a commission agent at Sunam in District Sangrur. He is suffering from anxiety and hyper tension associated with stress of everydays life. He has been suffering from depression for a number of years and using 'Alprazolam' tablets for management of the said disease. JITENDER KUMAR
4. I have heard learned counsel for the petitioner and 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -3- given my anxious thought to the questions involved in the instant revision.
5. Learned petitioner's counsel contended that even though 'Alprazolam' is mentioned in the Schedule to the Act but it is not shown in Schedule I of the Rules. Learned counsel referred to Rule 64 of the Rules in support of his contention.
6. I would say that the above contention is again misconceived. It cannot be disputed that 'Alprazolam' is a 'psychotropic substance' as defined in Section 2 (xxiii) of the Act of 1985. The term '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. 'Alprazolam' is mentioned at serial No. 30 of the Schedule containing list of psychotropic substances.
7. Rule 64 of the Rules only lays down general prohibition. It says that no person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I of the Rules. There are only four such psychotropic substances mentioned in the Schedule I of the Rules which are Entryptamine, Methaqualone, Methcathinone and salts and preparations of above, for which there is absolute prohibition as provided in Rule 64.
JITENDER KUMAR
8. There are various other provisions in the Rules, which 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -4- refer to the 'psychotropic substances' other than those mentioned in Schedule I of the Rules. Rule 66 of the Rules says in sub-rule (1) that no person shall possess any psychotropic substance for any of the purpose covered by the Drugs and Cosmetics Rules, 1945, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules. There are exceptions in respect of certain research institutes and hospitals etc. as per sub-rule (2) of Rule 66.
9. Similar was a contention raised before a Division Bench of this Court in Inderjeet Singh @ Laddi vs. State of Punjab (CRM-M-13140 of 2012) with connected petitions, decided on 31.01.2014 that if any drug/psychotropic substance recovered from any unauthorized person and is covered by Schedule I of the Rules, then it is to be tried under the Act of 1985 and if it is not covered by Schedule I of the Rules as provided under Rule 64 of the Rules, then it is liable to be tried under the Drugs and Cosmetics Act, 1940.
10. It was noticed that in terms of the notification dated 14.11.1985, the Central Government notified 88 drugs to be 'manufactured drugs' and 17 more drugs were notified as the 'manufactured drugs' subsequently.
11. It was further observed in Inderjeet Singh's case (supra) that some of the psychotropic substances and drugs in Schedule 'H' of Drugs and Cosmetics Rules, 1945 (for brevity JITENDER KUMAR '1945 Rules') are overlapping. One of those items is 'Alprazolam' 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -5- which is defined as psychotropic substance in Schedule to the Act which is also mentioned at serial No. 15 as a drug in Schedule 'H' of 1945 Rules. Vide subsequent notification dated 19.10.2001, the Central Government provided the table specifying 'small quantity' and 'commercial quantity' of narcotic drugs and psychotropic substances. Thereafter, the Central Government issued notification dated 18.11.2009 so as to add Note 4 after Note 3 to the table specifying 'small quantity' and 'commercial quantity' of narcotic drugs and psychotropic substances and this Note reads as under:-
"(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."
12. This Court authoritatively held in Inderjeet Singh's case (supra) that merely because the prosecution for a violation of the provisions of Drugs and Cosmetics Act and the Rules framed thereunder entails some kind of penalty would not be a bar to trial of cases in respect of which there has been a contravention of JITENDER KUMAR Section 21 of the NDPS Act. The Division Bench further held as 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -6- under:-
"The common drugs that are mostly misused for purposes other than medicinal and therapeutic use are drugs like Codeine, Dextropropoxyphene and Diphenoxylate. These are mentioned at serial Nos.132, 146 and 156 respectively in Schedule 'H' of the 1945 Rules, and are also mentioned at serial Nos.28, 33 and 44 respectively in the notification specifying small quantity and commercial quantity of drugs by making a reference to clause (vii a) and (xxiii a) of Section 2 of the NDPS Act. Besides, these are also mentioned at serial Nos.35, 87 and 58 respectively of the notification dated 14.11.1985. Other drugs which are commonly misused are 'Alprazolam, Chlordiazepoxide, Delorazepam, Diazepam and Buprenorphine' which are 'psychotropic substance' and are mentioned at serial Nos.30, 36, 42, 43 and 92 of the Schedule to the NDPS Act with reference to clause (xxiii) of Section 2 of the NDPS Act. These are commonly and widely misused by drug traffickers for clandestinely indulging in drug trafficking to give an intoxicating or stimulating effect and not for medicinal or therapeutic use."
13. It was ultimately held by the Division Bench in Inderjeet Singh's case (supra) that the possession of quantity in bulk would be an indication that it is not for medicinal or therapeutic use but is JITENDER KUMAR 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -7- sought to be misused by drug addicts and drug traffickers and would be treated as applicable to the entire quantity recovered of anyone or more narcotic drug or psychotropic substance of that particular drug in dosage forms and not just its pure drug content.
14. It is not the version of the petitioner that he was holding any authorization to keep in possession such a huge quantity of 'Alprazolam' tablets.
15. Learned counsel for the petitioner mainly relied upon State of Uttranchal vs. Rajesh Kumar Gupta, 2007 (1) SCC 355. The matter before the Hon'ble Supreme Court arose out of the grant of bail to the accused person who was a Ayurveda Acharya, running two clinics. The appellant in that case is stated to be assisted by eight other medical practitioners being Allopathic Ayurvedic doctors. The drugs recovered from the appellant were allopathic mentioned in Schedule 'G' and 'H' of the Drugs and Cosmetics Act were indisputably used for medicinal purposes. It was held that once the the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression medicinal purposes.
16. Hon'ble Supreme Court in Rajesh Kumar Gupta's case (supra) held that a person cannot be denied the right of being released on bail unless a clear case of application of the Act of 1985 is made out. He might have committed an offence which JITENDER KUMAR repulses out morality. It was further held that he may ultimately be 2014.09.19 10:06 I attest to the accuracy and authenticity of this document Chandigarh CRR No. 1244 of 2014 -8- found guilty even for commission of an offence under the Act of 1985, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly in view of the fact that he has been in custody for a period of more than two years now, it is not a fit case where extraordinary discretionary jurisdiction under Article 136 of the Constitution of India should be exercised. That judgment, therefore, would not support the contention of the petitioner.
17. It needs to be observed that 'Alprazolam' is also mentioned in the notification of the Central Government at Serial No. 178 prescribing the quantity of 'Alprazolam' which is small and commercial quantity. 'Alprazolam' is the 'psychotropic substance' described at serial no. 30 of the Schedule to the Act.
18. There is no merit in the instant revision and the same is dismissed.
September 17, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2014.09.19 10:06
I attest to the accuracy and
authenticity of this document
Chandigarh