Madhya Pradesh High Court
Paras Kumar Rawat vs The State Of Madhya Pradesh on 3 January, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
CRIMINAL REVISION No. 1738 of 2023
BETWEEN:-
1. DUBRAJ SINGH PATEL S/O SHRI RAMAVTAR
PATEL, AGED ABOUT 33 YEARS, OCCUPATION:
BUSINESS (DRUGGIST) R/O VILLAGE DHUMMA
KUSPARI POLICE STATION KAMARJI DISTRICT
SIDHI (MADHYA PRADESH).
2. PAPPU SAHU S/O SHRI RAMAI SAHU, AGED
ABOUT 39 YEARS, OCCUPATION: CULTIVATION
R/O VILLAGE PATEHRA KALA POLICE STATION
KOTWALI DISTRICT SIDHI (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI RAKESH DWIVEDI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
STATION HOUSE OFFICER P.S. CHORHATA DISTRICT
REWA (MADHYA PRADESH).
..... RESPONDENT
(BY SHRI D.K. PAROUHA - GOVERNMENT ADVOCATE )
CRIMINAL REVISION No. 3700 of 2022
BETWEEN:-
JITENDRA GUPTA S/O SHRI RAMNIHORE GUPTA,
AGED ABOUT 40 YEARS, OCCUPATION: BUSINESSMAN
WARD NO. 4 KOTAR NUTAN COLONY SIDHI POLICE
STATION KOTWALI 06.1SIDHI DISTRICT SIDHI
(MADHYA PRADESH).
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.....PETITIONER
(BY SHRI B.K. VAISHYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION CHORHATA DISTRICT REWA
(MADHYA PRADESH).
..... RESPONDENT
(BY SHRI D.K. PAROUHA - GOVERNMENT ADVOCATE )
CRIMINAL REVISION No. 3749 of 2022
BETWEEN:-
1. PARAS KUMAR RAWAT S/O SHRI RAVILAL
RAWAT, AGED ABOUT 27 YEARS, OCCUPATION:
DRIVER KOTWALI SIDHI POLICE STATION
KOTWALI SIDHI DISTRICT SIDHI M.P. (MADHYA
PRADESH).
2. PUNIT KEWAT S/O SHRI LALLU KEWAT, AGED
ABOUT 22 YEARS, OCCUPATION: LABOUR R/O
KOTWALI SIDHI P.S. KOTWALI SIDHI DISTRICT
SIDHI M.P. (MADHYA PRADESH).
.....PETITIONERS
(BY SHRI B.K. VAISHYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION CHORHATA DISTRICT REWA M.P.
(MADHYA PRADESH).
..... RESPONDENT
(BY SHRI D.K. PAROUHA - GOVERNMENT ADVOCATE ).
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Reserved on : 06.12.2023
Pronounced on : 03.01.2024
These revision petitions having been heard and reserved for
orders, coming on for pronouncement this day, the Court pronounced
the following:
ORDER
Applicants Dubraj Singh Patel, Pappu Sahu, Jitendra Gupta, Paras Kumar Rawat and Punit Kewat had filed criminal revision against framing of charge vide order dated 06.09.2022 by Special Judge, NDPS Act, Rewa (M.P.). Charges under Section 8(C) and 21 of NDPS Act is framed against the applicants.
2. As per prosecution story, FIR is lodged on 16.07.2020 against applicants for committing offence under Section 5/13 of M.P. Drugs Control Act, 1949 and Sections 8, 21, 22, 25 and 25-A of NDPS Act, 1985. Police stopped one Pick-up vehicle bearing No. MP-53-GA-3222. Vehicle was driven by one Paras Kumar Rawat. Punit Kewat and Pappu Sahu were sitting in the vehicle and one Jitendra Kumar Gupta of Sidhi has directed them to take the vehicle to Rewa. They loaded 90 boxes of Onerex cough syrup having codeine. Said cough syrup is to be taken to one Dubraj Singh Patel of Sidhi. Vehicle and contraband substance was seized and accused Paras Kumar Rawat, Punit Kewat and Pappu Sahu were arrested.
3. Counsel appearing for the applicants Dubraj Singh Patel and Pappu Sahu submitted that Dubraj Singh Patel is a licensee wholesale druggist and was authorized person to transport cough syrup. No case is made out against the applicants. Business was run by applicant Dubraj Singh Patel
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under name and style of D.R. Medical Store. Applicant Dubraj Singh Patel has permission to sell drugs other than those which are specified in Schedule C, C(I) and X. Chemical codeine falls under Schedule H. Therefore, applicant's license was valid for selling Onerex cough syrup. It is submitted that applicants made order for purchase of medicines to Shri Shanti Nath Enterprises, Prem Nagar, Gali No.1, New Delhi. Thereafter, medicines was sent through transport Gurukripa Fright Movers, which was delivered at Shrivastav Transport at Chorhata, District Rewa on 14.7.2020. Copy of GST Invoice dated 13.7.2020 and bilty invoice dated 13.7.2020 were placed on record as Annexure A/5. It is submitted that on 15.7.2020, applicant no.1 hired a vehicle Pickup Van No.MP-53-GS-3222 for carrying said medicines from Rewa to Sidhi. When medicines were loaded on the vehicle, Police Chorhata raided Shrivastava Transport at REwa and took the said vehicle loaded with medicines to Police Station Chorhata and registered offence and made illegal demand from applicants. When demand was not fulfilled, on next day i.e. on 16.7.2020 FIR was registered against the applicants and other co-accused persons. It is further submitted that manufactured Drug has been defined in Section 2(xi) of NDPS Act. Central Government has issued notification No.S.O.826(E) dated 14.11.1985 which declares certain narcotics substances to be manufactured drugs. Entry No.35 of Notification reads as follows:-
"Methyl 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 per cent in undivided preparations and which have been established in therapeutic practice."
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4. Learned counsel for the applicants further relief on judgment passed by this Court in case of Shiv Kumar Gupta vs. State of M.P. passed in Cr.R No.200/2015, wherein Court has held as under:-
"12. Now the Court shall consider as to what was the concentration of Codeine Phosphate in undivided preparations? At the outset let it be mentioned that there is no report of any Forensic Science Laboratory on record. However, in the case of Amrik Singh vs. State of Punjab, 1996 CRI. L. J. 3329, the Punjab and Haryana High Court was faced with similar situation. In that case, cough syrup Phensedyle was seized from the possession of the accused in 125 ml. bottles. Each bottle contained codeine phosphate in proportion of 9.5 m.gs. per 5 mils. The sample was sent to Forensic Science Laboratory and as per the report of FSL the concentration of Codeine Phosphate in undivided preparations came to 1.9%. In the instant case, syrup Codex and Cosome contained Codeine Phosphate in proportion of 10 m.gs. per 5 m.ls., which would surely be less than 2.5% in concentration in undivided preparations.
13. to 15. xxx xxx xxx
16. In aforesaid view of the matter, even if all allegations contained in the charge sheet and the documents filed therewith are taken at their face value and taken to be true, no offence under section 8 read with section 21 of the NDPS Act is made out against the applicant."
5. On basis of aforesaid facts and circumstances of the case, prayer is made for quashing of impugned order dated 6.9.2022 by which charges were framed against the applicants under section 8(C) and 21(C) read with 29 of NDPS Act.
6. Learned Govt. Advocate appearing for the respondent/State supported the order of framing of charges. It is submitted that as per prosecution story, contraband drugs were purchased by applicants from
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Delhi and has to be sent to Sidhi. Contraband was not found on route between Delhi and Sidhi but it was taken to Rewa where it has been seized by the police. It is further submitted that no bilty was filed to show that articles were vehicle MP-53-GS-3222 was being sent from Delhi to Sidhi. There was no license to keep the contraband at Dabra. In these circumstances, no error has been committed by the trial court in framing the charges and revision petitions be dismissed.
7. Heard the learned counsel for the parties.
8. Similar question arose before Delhi High Court while considering the bail application. Reference was made to Division Bench for answering the said question. In said case, Division Bench placed reliance on judgment passed by Apex Court in case of Union of India and another vs Sanjeev V. Deshphande reported in (2014) 13 SCC 1. In said case, it was held that merely dealing in narcotic drugs and psychotropic substances for medicinal or scientific purpose will not lift the embargo created under Section 8(c) of N.D.P.S. Act, 1985. Dealing must be in the manner and extent provided in Acts and Rules or Orders made thereunder. Section 9[9] and 10[10] enable Central and State Governments respectively to make rules permitting and regulating various aspects contemplated under Section 8(c).
9. Division Bench of Delhi High Court while considering the aforesaid question held that in earlier judgments passed by High Court, scope of Section 9(1)(a)(va) of NDPS Act was not considered. Section 9(1)(a)(va) of NDPS Act is quoted as under :
"9. Power of Central Government to permit, control and regulate.-
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(1) Subject to the provisions of Section 8, the Central Government may, by rules
(a) permit and regulate--
xxx (va) the manufacture, possession, transport, import inter-
State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs:
Provided that where, in respect of an essential narcotic drug, the State Government has granted licence or permit under the provisions of Section 10 prior to the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, such licence or permit shall continue to be valid till the date of its expiry or for a period of twelve months from such commencement, whichever is earlier. xxx"
Sub-clause (va) was introduced by N.D.P.S. (Amendment) Act, 2014. By said Section Government was authorized to permit and regulate the manufacture, possession, transport, import interstate, export interstate, sale, purchase, consumption and use of the "essential narcotic drugs".
Essential narcotic drugs has been defined in Section 2 (viiia) of 1985 N.D.P.S Act, which is reproduced as under:-
"Essential narcotic drug" means a narcotic drug notified by the Central Government for medical and scientific use.
Exercising power under Section 9(1)(a)(va) of N.D.P.S. Act, Central Government issued notification dated 05.05.2015 and added Chapter-VA to the Narcotic Drugs and Psychotropic Substances Rules, 1985. Rule 52 of said Chapter provides as under :
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"52A. Possession of essential narcotic drug.-- (1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules. (2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in accordance with the provisions of these rules. (3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely--
TABLE Sl. Name of the essential narcotic drug Quantity No. (1) (2) (3)
1. Morphine and its salts and all 500 preparations containing more than Milligrammes 0.2 per cent of Morphine
2. Methyl morphine (commonly 2000 known as 'Codeine') and Ethyl Milligrammes 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 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice
3. Dihydroxy Codeinone (commonly 250 known as Oxycodone and Milligrammes Dihydroxycodeinone), its salts (such as Eucodal Boncodal Dinarcon
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Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs
4. Dihydrocodeinone (commonly 320 known as Hydrocodone), its salts Milligrammes (such as Dicodide, Codinovo, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester,and preparation, admixture, extracts or other substances containing any of these drugs
5. 1-phenethyl-4-Npropionylanilino- Two piperidine (the international transdermal nonproprietary name of which is patches one Fentanyl) and its salts and each of 12.5 preparations, admixture, extracts or microgram per other substances containing any of hour and 25 these drugs microgram per hour: 2022:
Provided that the Controller of Drugs or any other officer authorised in this behalf by him may by special order authorise, in Form 3-B, any such practitioner to possess the aforesaid drugs in quantity larger than as specified in the above Table:
Provided further that such authorisation may be granted or renewed, for a period not exceeding three years at a time. Explanation.--The expression "for use in his practice" covers only the actual direct administration of the drugs to a patient under the care of the registered medical practitioner in accordance with established medical standards and practices. xxx"
(emphasis supplied)
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10. Rule 52A sub-rule 3 mentions codeine and its salts as essential narcotic drugs. Entry 35 in notification of 14.11.1985 was titled 'manufactured narcotic drug'. By notification of 2014, codeine and its salts are included in category of essential narcotic drugs under Section 9(1)(a) (va) of N.D.P.S. Act, 1985. Therefore, Rule 52A regulates the manner of possession and related activities in respect of said salts under Entry No.35.
Section 21 of N.D.P.S. Act provides for prosecution for contravention of any provision of N.D.P.S. Act or any rule made thereunder. Rule 52A prohibits any person from possessing any essential narcotic drug. Salts contained in Rule 52A will be considered as essential narcotic drug, though they may also be covered under Drug and Cosmetic Act including cough syrup containing codeine phosphate.
11. Supreme Court in case of Union of India and another vs Sanjeev V. Deshphande reported in (2014) 13 SCC 1 has held that dealing in narcotic drugs and psychotropic substances is for medical and scientific purpose does not by itself lift the embargo created under Section 8(c) and such a dealing must be in manner and extent provided by provisions of Act and Rules made thereunder. In view of amended notification issued by Union of India, violations of Rule 52A will be convered under N.D.P.S. Act and penal provisions will be attracted.
12. Resultantly, petitions are hereby dismissed.
(VISHAL DHAGAT) JUDGE vkt/mm/pn VINOD Digitally signed by VINOD KUMAR TIWARI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, KUMAR 2.5.4.20=502f56362111056e3584ca82279e5efd81676 6cb7c5a1f490a5ca63b1116883f, postalCode=482001, st=Madhya Pradesh, serialNumber=121D0E9F65C983AD564933787026224 TIWARI 77111B5016F24D35FA8A76C2CA46685EE, cn=VINOD KUMAR TIWARI Date: 2024.01.04 16:10:37 +05'30'