Madhya Pradesh High Court
Pawan Kumar vs The State Of Madhya Pradesh on 14 March, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-11118-2017
(PAWAN KUMAR Vs THE STATE OF MADHYA PRADESH)
5
Jabalpur, Dated : 14-03-2018
Mr. Rahul Tripathi, learned counsel for the petitioner.
Mr. Mohit Nayak, learned Govt. Adv. for the respondent/State.
Heard finally at motion stage. This application under Section 482 of Cr.P.C has been filed to invoke the extra ordinary jurisdiction sh of this Court and to quash the FIR at Crime No.31/2016, registered at e Police Station-Semariya District-Rewa for offence under Sections 8 ad r/w 21, 22 of Narcotic Drugs and Psychotropic Substances Act 1985 (for brevity the NDPS Act).
Pr
2. Bereft of the unnecessary details, the facts just necessary for a hy disposal of this petition are that on 27.4.2016, truck bearing registration No.MP-09/HG 1335 met with an accident at Shahpur ad under the Police Station-Semariya. It was traveling from Indore to M Muzaffarpur (Bihar). On the report of the villagers, police reached the spot found the vehicle loaded with cartoons containing 45,000 bottles of of Phensedyl Syrup each containing 100 ml. Police after investigation rt found that the said syrup contained "codeine phosphate" a substance, ou which is narcotic product. Therefore, offence has been registered under Sections 8, 21, 22 of NDPS Act and Crime No.31/2016 was C lodged against Dilsad Khan (Driver), Dharmendra Chourasia h (Cleaner), Ramkrishna Mishra (Owner of truck), Gyanchandra Pandey ig (Transported), Mukesh (person who loaded the truck). During the H investigation, Applicant No.1 Prawan Kumar the proprietor of Malwa Traders and Company has also been impleaded as an accused, who was responsible for sending the consignment of the "Phensedyl Syrup" to Choudhary Drug Agency Muzaffarpur, Bihar. After due investigation, charge-sheet has been filed.
3. On behalf of the petitioner, the charge-sheet has been assailed on the ground that, narcotic drug, which contained in each bottle is less than the permissible limit. The permissible limit is 9.0-11.0 mg in every quantity of 5 ml. It is also contended that the applicant is having registration under the Drugs & Cosmetics Act and Annexure-A/3 is the registration certificate of Choudhary Drug Agency, which is valid from 4.9.2015 to 3.9.2020. It would be appropriate to mention here that the incident took place on 27.4.2016. The consignment was being sent to Choudhary Drug Agency Muzaffarpur, Bihar through the transporter. Annexure-A/2 is the consignment order dated 6.4.2016. Exhibit-A/1 is the registration certificate of the Malwa Traders is from 26.8.2015 to 25.8.2020. The certificate was issued on 26.8.2015 by the licensing authority Indore. The indent for supply of 45,000 bottles against challan No.003807 of Axis Bank Maripur Branch Muzaffarpur sh dated 6.4.2016 is filed as Annexure-A/2. The certificate of registration e of Choudhary Drug Agency under Section 19 of the Bihar Value ad Added Tax Act, 2005 is at page-14 of the petition. The tax invoice Pr Annexure-A/4 is dated 20.11.2015 for Rs.34,20,000/-.
4. The report of FSL submitted by ITS Labs Private Limited a dated 2.5.2016 shows that, the label claimed is 10.0 mg of Codeine hy Phosphate in each bottle of 5 ml., whereas limit is 9.0-11.0 mg. The ad result of Codeine Phosphate found is 10.30 mg. The laboratory report M shows that it contains 10.30 mg Codeine Phosphate in each 5 ml. quantity.
of
5. It would be appropriate to mention hear that in exercise of powers conferred by Clause (XI) of sub-clause (b) of Section 2 of the rt Act, the Central Government has issued Notification No.S.O.826(E), ou dated 14th of November, 1985, which declares certain narcotics C substances to be manufactured drugs. The relevant Entry No.35 of the h notification reads as follows :-
ig "morphine (commonly known as 'Codeine'), and Ethyl Morphine and H their salts (including Diodine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 miligrams 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."
6. From the perusal of the above 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 NDPS Act.
7. In the case of Amrik Singh Vs. State of Punjab, 1996 CriLJ, 3329 and Ashok Kumar Vs. Union of India decided on 15.10.2014 in Criminal Appeal No.2976/2014, in similar situation, the Courts held that it is not violative of any provision of the NDPS Act. In the case of Arvind Chandwani Vs. State of Madhya Pradesh in M.Cr.C.No.19922/2015 decided on 28.4.2016, 372 boxes of Phensedyl Cough Syrup bottles containing 100 ml were seized and 37,200 bottles were seized. The coordinate bench of this Court has quashed the proceeding for offence under Section 8 r/w 21 & 22 of sh NDPS Act, 1985. In the case of Shiv Kumar Gupta Vs. State of MP e in criminal revision No.200/2015 decided on 16.2.2015, the accused ad persons were discharged by a coordinate bench of this Court for Pr offence under Section 8 read with Section 21 of the NDPS Act for they were in possession of 38 bottles of Codex Cough Syrup in similar a circumstances.
hy
8. In this view of the matter, this Court does not deffer from the ad views adopted earlier by this Court in the cases referred above. It is M held that prosecution may consider and take appropriate action, if any provision of Drugs & Cosmetics Act has been violated but, so far as of the provisions of Section 8/21 & 22 of NDPS Act is concerned, the Crime No.31/2016 registered at Police Station-Semariya is, therefore, rt quashed.
ou
9. The Petition is allowed.
C h (SUSHIL KUMAR PALO) ig JUDGE H Digitally signed by NEETI TIWARI Date: 2018.03.19 13:26:01 -07'00' nd