Himachal Pradesh High Court
Praduman Justa vs State Of Himachal Pradesh on 8 July, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.M.P.(M) No. 450 of 2016.
Reserved on: 29.6.2016 Date of decision : 8th July , 2016 ____________________________________________________________ Praduman Justa .....Petitioner.
of
Versus
State of Himachal Pradesh
rt .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Petitioner : Mr. N. S. Chandel and Mr. Dinesh Thakur, Advocates.
For the Respondent : Ms. Meenakshi Sharma, Addl. Advocate General with Mr. J.S. Guleria, Assistant Advocate General.
SI Ashish Samuel, P.S. West, Shimla, present alongwith records.
Tarlok Singh Chauhan, Judge The petitioner has filed this petition under Section 439 of the Code of Criminal Procedure (for short 'Code') for grant of regular bail in case FIR No. 95 of 2016 dated 15.4.2016, registered at Police Station, Boileauganj (Shimla West), under Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act').
2. The brief facts of the case are that the police party of Police Station, Boileauganj was on patrolling duty near Glen Moad (curve) and Annadale etc. and at about 3.30 when they reached at ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 2 place Glen Moad (curve) and Annadale they found one white coloured .
car bearing No. CH-03Q-6259 was parked in the road in which two persons were there and seeing the police they tried to run away and one person fell down and was over powered and second person ran away. The person who was over powered disclosed his name of Praduman Justa and the person who fled away from the spot was Kinchit Justa. The alleged maruti car was checked and one black and rt white coloured bag on which "Attire Watch ones step" was written was recovered. After checking the bag, some bottles and few medicines were recovered and after counting it was found to be containing 20 bottles of Chlorpheniramine maleate and codeine phosphate cough syrup mark Corex of 100 ml and 299 tablets of Nitrazepam in 15 strips of Nitrosum-10 and on the back seat of the car, one black coloured mobile of Nokia brand was found which was stated to be mobile phone of Kinchit Justa. The accused could not produce any licence/prescription slip of the Corex and Nitrosun 10 and the bag was thereafter sealed in which 15 stamps of 'Z' was marked and then after completing all the codal formalities as required under the law, the accused persons were found to have committed offence under Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short 'Act') and were arrested by the Investigating Officer and recovered contraband sent to the FSL, Junga. On receipt of the report, it was found that the codeine phosphate was found present in Corex Cough Syrup and Nitrazemam was found present in the tablets of Nitrosum-10.
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 33. The learned counsel for the petitioner has raised the .
following contentions:
(i) That there is no mention of any drug under the Act which may be considered as a 'manufactured drug'. It is only by virtue of Section 2 (xi) that powers have been conferred upon the Government of to declare any drug as a manufactured drug having some concentration of coca derivatives or Medicinal cannabis or opium rt derivatives or poppy straw concentrate according to the requirement of the Indian Pharmacopoeia or any other pharmacopoeia notified by the Government. The Central Government while exercising the powers conferred under Section 2 (xi) (b) of NDPS, Act had issued notification dated 14th November, 1985 declaring certain Narcotic Substances and preparation of manufactured drug as manufactured drugs.
(ii). That in the notification dated 14.11.1985, codeine has been declared as 'manufactured drug' with certain restriction and figures at serial No. 35 and would only be considered to be a prohibited substance in case the preparations contains more than 100 milligrams of the drug per dosage unit with a concentration of not more than 2.5% in undivided preparation which has been established in therapeutic practice and is exempted and cannot be considered as manufactured drug under Section 2 (xi) of the Act.
(iii). That from the perusal of the aforesaid entry No.35 of the notification dated 14.11.1985 it is clear that the preparation containing not more than 100 mg of codeine phosphate per dosage unit with the concentration of not more than 2.5% in undivided preparation which ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 4 has been established in therapeutic practice is exempted from being a .
manufactured drug under Section 2 (xi) of NDPS, Act.
(iv). That as per the prosecution the corex cough syrup which was allegedly recovered from the petitioner contained 1.930 mg/ml codeine phosphate in 100 ml of bottle. The concentration of codeine in of 100 ml bottle or dosage per unit is approximately less than .02% that is to say that the same is within the permissible limit of less than 2.5%.
rt As such, Corex is not a manufactured drug as per Section 2 (xi) of NDPS, Act as the concentration of codeine phosphate is less than 2.5%. Hence, the cough syrup comes under Schedule H-1 of Drugs and Cosmetic Rule, 1945 and Rule 65A and Rule 66 of NDPS Act are not attracted in the facts and circumstances of the present case as such no offence under Section NDPS Act is made out.
(v) That Rule 52-A of the Narcotic Drugs and Psychotropic Substances Rules (for short 'Rules') was introduced in the year 2015 in order to bring codeine phosphate within the purview of the Act only if the concentration of codeine in 100 ml of bottle is more than 2.5% and below the said concentration, same would not fall under the said Act.
Apart from this, learned counsel for the petitioner has also relied upon table No.2 wherein same language as contained in entry No.35 of 1985 notification is contained.
4. In reply, Mr. J.S. Guleria, learned Assistant Advocate General would argue that the arguments raised by learned counsel for the petitioner to the effect that cough syrup in which codeine phosphate was found should have been mentioned in the notification issued by the Government of India as stated in (b) (xi) of Section 2 of ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 5 the Act and that codeine phosphate is not a manufactured Narcotic .
Drug and as per GOI Gazette Notification No. S.O.826 (E) dated 14.11.1985 and S.O. 40(E) dated 29.01.1993 is totally fallacious.
5. It is argued that codeine phosphate being opium derivative is covered under the definition (a) of sub section (xi) of Section 2 of the of Act. In so far as the aforesaid notifications dated 14.11.1985 and 29.1.1993 are concerned, it is argued that the Codeine and its rt preparations is mentioned and holds good only for licensed pharmaceutical manufacturers as is evident from entry No. 35 wherein it is clearly mentioned at the end that such preparations have been established in Therapeutic practice and act as a rider for them not to manufacture the preparations of codeine phosphate beyond the limits defined in the said notification.
6. In rebuttal, learned counsel for the petitioner would argue that the arguments advanced by the prosecution are completely misplaced because as per prosecution, codeine is a derivative of opium and is a manufactured drug within the meaning of Section 2 (xi) and (xvi-c) and notification as envisaged under Section 2 (xi-b) would therefore be necessary for other drugs but not for coca derivates, medicinal cannabis, opium derivates and poppy straw concentrate. If the argument of the State is taken as it is then there was no need of notification of 1985 as all the drugs containing all coca derivates or medicinal cannabis or opium derivates or poppy straw concentrate would automatically fall in the category manufactured drug.
7. The learned counsel for the petitioner would further argue that codeine in isolation is not a manufactured drug. It is only when it ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 6 undergoes the process of preparation as defined under Section 2 (xx) .
of the Act that it becomes a manufactured drug. After going through the process, salt is added to it and then concentration of codeine converts into codeine phosphate, which is found in the drug in question.
8. It is further submitted that the Act nowhere defines any of drug, it is by virtue of notification dated 14.11.1985, 29.1.1993 and 21.6.2011 the manufactured narcotic drug has been notified.
rt
9. The learned counsel for the petitioner would further argue that the crux of the prosecution argument is that the aforesaid notification is bad as there was no need of such notification in view of Section 2 (xi-a) which is completely misplaced. According to him, a bare perusal of the notification will indicate that majority of the drugs mentioned in the said notification are consisting of coca derivates, medicinal cannabis, opium derivates and poppy straw concentrate.
Apart from this, in order to counter the argument of the State, the petitioner would submit that codeine has not been found in the drug in question, it is codeine phosphate, which has not been defined in Section 2 of the Act.
10. With regard to the notification dated 18.11.2009, the learned counsel for the petitioner would argue that the said notification would be applicable for codeine phosphate only if it exceeds the prescribe limit that is 2.5%. The said notification will not be applicable for the concentration of codeine phosphate which is less than 2.5% as the said drug does not fall within the meaning of manufactured drug and is not covered under the Act.
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 711. Notably, most of the contentions as raised by learned .
counsel for the petitioner have already been considered by me in detail in Cr.MP(M) No. 502 of 2014 titled Om Pal vs. State of Himachal Pradesh, decided on 6.5.2014, but the learned counsel for the petitioner would still contend that this judgment requires to be of re-looked and re-visited and may possibly be required to be referred to a larger Bench as this Court has not considered the effect of the rt notification dated 14.11.1985 as the same was in fact not brought to its notice.
I have heard learned counsel for the parties and gone through the records of the case carefully and meticulously.
12. One of the question that arises for consideration is as to whether the petitioner can be tried for an offence under the NDPS Act in case he is found in possession of 'manufactured drugs' as defined under Section 2 (xi) of the Act and has been notified as such by notifications dated 14.11.1985 and 29.1.1993 as 'manufactured drugs', but contains an exception as regards the percentage of dosage in the drug. Therefore, in order to understand this issue, one is required to look into the relevant provisions of the Act, which are noted below:
"2 (xi) "manufactured drug" means -
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug ;
but does not include any narcotic substance or preparation which the Central Government may, having regard to the ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 8 available information as to its nature or to a decision, if any, .
under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug.
2.(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs.
Explanation, - For the purposes of clauses (v), (vi), (xv) and of (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one percent of a substance means a preparation in which one gram rt of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparation and so on in proportion for any greater or less percentage:
Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate for such calculation."
13. In terms of clause (b) of Section 2 (xi) NDPS Act relating to 'manufactured drug', any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any international convention, by notification in the official Gazette, declare to be a manufactured drug, are to be considered as such, that is, as manufactured drug. The Ministry of Finance, Department of Revenue, has published notification S.O. 826 (E) dated 14.11.1985 in the Gazette of India, Extraordinary, Part II, Section 3, sub-Section (ii). The said notification has been issued in exercise of power conferred by sub clause (b) of clause (xi) of Section 2 NDPS Act, in terms of which the Central Government has declared the narcotic substances and preparations mentioned therein to be "manufactured drug".::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 9
14. In terms of the notification dated 14.11.1985, as many as .
88 drugs have been notified and 10 out of the same, have been provided with some kind of exceptions and relevant entry for our purpose is contained at serial No. 35 and the same reads thus:
"35. Methyl morphine (commonly known as 'Codeine') and of 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 rt 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."
15. Notably, Central Government vide notification dated 29.1.1993 notified 17 more drugs as "manufactured drugs" and, therefore, in all as many as 105 drugs have been notified as "manufactured drugs".
16. Section 21 of the Act, relates to punishment for contravention in relation to manufactured drugs and preparations and provided for different punishments in respect of contravention of any provision of the NDPS Act and the Rules etc.
17. Clause (viia) and Clause (xxiiia) of NDPS Act defines "commercial quantity" and "small quantity" which read as follows:
"(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 10
18. The Central Government vide notification dated .
19.10.2001 has specified the 'small quantity' and commercial quantity' in a tabular form which contains horizontal columns from (1) to (6) mentioning the serial number, name of narcotic drug and psychotropic substance, other non-proprietary name, chemical name, small quantity of (in grams) and commercial quantity (in grams/kilograms) respectively.
19. On 18.11.2009, the Central Government issued another rt notification so as to add Note 4 after Note 3 to the table specifying 'small quantity' and 'commercial quantity' of narcotic drugs and psychotropic substances in terms of notification dated 19.10.2001 and the same is reproduced as under:
"Notifications, New Delhi, the 18th November, 2009 S.O. 2941 (E).- In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055 (E), dated 19th October, 2001 namely, in the Table at the end after Note 3, the following Note shall be inserted namely:-
"(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."
20. Thus, the effect of the notification dated 19.10.2001 was that the quantity shown in column No.5 that relates to 'small quantity, ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 11 and column No.6 that relates to 'commercial quantity' of the table .
relating to respective drugs shown in column No.2 that relates to the name of narcotic drug and psychotropic substance, is to apply to the entire mixture or any solution or any one or more of narcotic drugs or psychotropic substances of that particular drug in dosage form etc. of wherever existence of such substance is possible and not just its pure drug content. This was so held by me in Om Pal's case (supra) and rt the relevant observations read as under:
"14. The sum and substance of the arguments raised by learned counsel for the petitioner is that in case of seizure of narcotic substance, the Court is to rely upon the report of the Chemical Examiner in order to find out the pure drug content per dosage and if it is found to be below the exempted limit, i.e. less than commercial quantity, then the petitioner is entitled to statutory bail under Section 167 (2) Cr.P.C. and since the prosecution had failed to file the final report within the statutory period of 90 days.
15. Learned Advocate General on the other hand contended that once the petitioner admits the applicability of Section 21, then in so far as the Narcotic Drugs and Psychotropic Substance is concerned, it is not pure drug content which will have to be seen but it would be the entire weight of the drugs recovered which will have to be taken into consideration for calculating its quantity in view of the notification No.S.O. 294 (E) dated 18.11.2009.
16. Notification No. S.O. 1055 (E) dated 19.10.2001 was issued in terms of clause (vii-a) and xxiii-a) of Section 2 of the Act, whereby and wherein the small quantity and commercial quantity of each of the substance had been stipulated as follows:
""Small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
""Commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 12
The said notification did not introduce a new psychotropic .
substance other than those mentioned in the schedule of the Act. Since intention of the notification appears to be only to prescribe small and commercial quantity of psychotropic substance by maintaining its statutory definition. However, by notification No. S.O. 294 (E) dated 18.11.2009, the amendment was brought in the of notification dated 19.10.2001 and in the table at the end after Note 3, the following Note was added:
"(4). The quantities shown in column 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply rt 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."
17. Thus, what is established from the perusal of notification of 2009 is that the pure content test to ascertain the exact quantity of narcotic drugs and psychotropic substance or manufactured drugs is not required nor can it be used for any advantage especially by the accused. Because now the whole contraband seized is required to be considered and not the quantity of drug or contraband reflected in the report of the Chemical Analyst.
18. In so far as the reliance placed by learned counsel for the petitioner on the judgment of the Full Bench in State of H.P. vs. Mehboon Khan, decided on 24.9.2013 is concerned, the same cannot be read and interpreted in a manner as is sought by the petitioner. In fact the reference to the Larger Bench was only to consider the correctness of the Division Bench Judgment which had held that it was the percentage of tetrahydrocannabinol (THC) which alone would determine the quantity of resin and not the entire stuff. In this background, the question has been answered and reference to the judgment in E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 has been made. The question of applicability of the amendment carried out in the notification No. S.O. 294 (E) dated 18.11.2009 was neither raised nor its applicability considered. Thus, no reliance whatsoever can be made upon reading stray paragraph of the judgment.
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 1320. It cannot be disputed that prior to the issuance of the .
notification there was a controversy regarding what would constitute small, intermediate or commercial quantity which was set at rest by the Hon'ble Supreme Court in E. Micheal Raj case (supra). The Hon'ble Supreme Court after analyzing the provisions of the Act and also the relevant entries made in the notification dated 19.10.2001 of had held "when any narcotic drugs or psychotropic substance is found mixed with one or more neutral substance for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration."
rt
21. Probably it was this view of the Hon'ble Supreme Court which resulted in the issuance of notification dated 18.11.2009. Though, this Court is not going into the constitutional validity of this notification since it has not been raised, however, suffice is to say that it cannot be denied that the Central Government had the legislative mandate to issue such a notification as it has been given the power to specify by a notification in the Official Gazette the quantity representing the small quantity or commercial quantity in relation to each narcotic drugs and psychotropic substance.
22. The constitutional validity of the notification as observed earlier is not in question before this Court. However, to straighten the record, it may be observed that the same has already been upheld by the Delhi High Court in Abdul Mateen vs. Union of India, WP(Crl.) 1552 of 2010 decided on 6.11.2012.
23. As observed above, while determining whether the quantity small or commercial, the weight of the entire bulk contraband has to be taken into consideration and the pure content test cannot be applied.
28. Since the petitioner admittedly has been found to be in possession of 229 vials of Rexcof (cough syrup) of 100 ml quantity and the entire quantity is now required to be taken into consideration to determine the quantity i.e. small, intermediate or commercial, therefore, the case of the petitioner admittedly does not fall within the purview of Section 167 (2) of the Code and is covered by Section 36A (4) of the Act. Therefore, the present petition being pre- mature is accordingly dismissed. "
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 1421. Thus, it is clear that 'manufactured drugs' of which there .
has been a contravention in the instant case is possessed without proper licence or authorization and in case the drugs which are carried in bulk form, the notification dated 18.11.2009 would apply and the question that these drugs contain an exception would not be applicable of as the exceptions would only apply when the drugs are for medicinal or therapeutic use. Besides this, the quantity of manufactured drugs is not rt to be determined on the pure drug content, but the entire quantity is required to be taken into consideration to determine the quantity i.e. small, intermediate or commercial.
22. Therefore, the question of exceptions being provided in respect of drugs at serial No. 35 of the notification dated 14.11.1985 is inconsequential when these drugs are being carried in a bulk form because then the entire quantity of the bulk is to be taken into consideration and not the pure drug content as canvassed by the petitioner particularly when these are sold, purchased, distributed, stored, transported, carried etc. without a valid licence or kept without a valid authorization.
23. At this stage, learned counsel for the petitioner would rely upon the judgment rendered by the learned Single Judge of Madhya Pradesh High Court in Rohit Chadha vs. State of Madhya Pradesh, 2016 Cr.L.J. 2025, to contend that the theory of entire quantity would only apply in case the recovered substance is a 'manufactured drug' and would particularly rely upon the following observations from judgment, which are as under:::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 15
"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 of 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 rt 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 Rules, 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, 2015 2 All L.J. 193 (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)].::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 16
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 of 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 rt 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 sub clause (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:-
"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 ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 17 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."
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 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. rt
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 ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 18 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."
of With due respect, deference and humility, I express my inability to agree with the proposition laid down in the aforesaid case rt for detailed reasons as already set out above and for other reasons which are contained in the latter part of the judgment.
24. The arguments raised by learned counsel for the petitioner is that cough syrup in which codeine phosphate was found should have been mentioned in the notification issued by the Government of India as stated in (b) (xi) of Section 2 of the Act and that codeine phosphate is not a manufactured Narcotic Drug and as per GOI Gazette Notification No. S.O.826 (E) dated 14.11.1985 and S.O. 40(E) dated 29.1.1993. The aforesaid argument is fallacious because in the notifications dated 14.11.1985 and 29.1.1993, respectively, 'Codeine' has been mentioned at serial No. 35 and this is only relevant for licensed pharmaceutical manufacturers in which it is clearly mentioned at the end that such preparations have been established in therapeutic practice and act as a rider for them not to manufacture the preparations of codeine phosphate beyond the limits defined in the said notification.
25. In Baldev Singh vs. State of H.P. Cr.MP(M) No. 517 of 2013, decided on 19.7.2013, this Court was dealing with a bail petition wherein the investigating agency had recovered the following quantity of drugs from the accused as under:
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 19 Sr.No. 2. 3. 4.
Name/quantity of Narcotics/psychotropic Item No. in notification/ drug recovered. substance found on Schedule of the NDPS Act.
analysis.
1. SPASMOIS-1 Dextropropoxyphene Manufactured narcotic drug at PROXYVON sr. No. 33 of Notification 8640 CAPSULES Napsylate specifying small quantity and Batch No. commercial quantity.
JN10154 MFD
of
FEB 13.
2. Two boxes of Diphenoxylate At Sr. No. 44 of Notification
microlit 100 specifying small quantity and
packet total Hydrochloride 2.5 commercial quantity.
10,000 tablets.
rt mg per tab.
3. 49 bottles Lomotil Diphenoxylate -do-
containing 100
tablets each total Hydrochloride 2.5
4900 tablets. mg per tab and
atropine sulphate
0.025 mg.
4. 15 packets 10 in Chlordiazepoxide 10 Psychotropic at Sr. No. 187 in each of mg per tab. Notification at Sr. No. 36 in Equilibrium total Schedule attached to this Act. 150 tablets.
26. The petitioner therein had sought bail on the plea that recovered substance fell within the category of small quantity and this Court repelled this contention and held as under:
" 9. The perusal of record shows that the 15 packets (150 tablets) of quilibrium contained chlordiazepoxide 10 mg per tablet. It is a psychotropic substance mentioned in Sr. No. 187 of Notification at Sr. No. 36 in the schedule. The total recovered quantity comes to 1500 mg. which is punishable under Section 22 of the NDPS Act. The other drugs recovered are the "Manufactured drugs" which are also narcotic drugs, possession of which is prohibited under Section 8 of the Act; except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the NDPS Act or the Rules or orders made thereunder and in case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization. The petitioners herein were illegally transporting these drugs in the area of Himachal Pradesh.::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 20
10. The import, export and transhipment of Narcotic Drugs and .
Psychotropic Substances are prohibited into and out of India which are specified in schedule-I of the NDPS Act as per Chapter VI of the 1985 Rules. Even as per Rules 66 and 67 Chapter VII of the Rules aforesaid, the possession and inter- State transportation of psychotropic substances is prohibited of unless accompanied by consignment note in (Form 6) appended to Rules in the manner provided therein.
11. Chapter VII-A of 1985 Rules introduced by notification rt dated 25.6.1997 w.e.f. 27.6.1997 provides for special provision regarding manufacture, possession, transport, import, export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes; which prevents use of Narcotics drugs and psychotropic substances for the purposes mentioned therein and the case of the petitioners is not covered under any of the rules contained therein.
12. The recovered capsules of spasmois-1 proxyvon mentioned in para 3 ante at Sr. NO. 1 contained 'Dextropropoxyphene', whereas microlit and lomotil contained 'Diphenoxylate' and its salt. These recovered drugs at Sr. Nos. 1 to 3 above are prescription drugs as per schedule 'H' of the rules framed under the Drugs and Cosmetic Act, 1940. The petitioners did not have any permit/license to deal with or transport the said drugs in Baddi area of Himachal Pradesh; nor any prescription which, prima facie besides commission of offence under the Drugs and Cosmetic Act, 1940, attracts the provisions of NDPS Act, as Section 80 of the NDPS Act also provides that the provisions of this Act or the Rules made thereunder shall be in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 or the Rules made thereunder. Therefore, the accused can be prosecuted under the relevant provisions of both the Acts.
13. Now, the manufacture for sale, and distribution and formation of Dextropropoxyphene for human use has also been suspended by the Central Government, vide notification dated 25.5.2013 published in the Gazette of India (Extra Ordinary) as being used by addicts.::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 21
14. Since these manufactured drugs aforesaid contain the .
preparation of offensive substance which falls within the definition of 'Narcotic drug' the plea that it fell within the permissive dose as per the notification thus excepted is also belabouring under the interpretational misconception as 'dosage' or 'dose' does not mean per capsule but it relates to of the dosage/dose prescribed by the doctor according to weight of the patient, disease and the time taken for recovery."
27. In Mohd. Sahabuddin and another vs. State of Assam rt (2012) 13 SCC 491, the Hon'ble Supreme Court was dealing with a case where the bail had been refused by the Gauhati High Court and thereafter the petitioner had sought regular bail from the Hon'ble Supreme Court after being apprehended with 347 cartons each carton containing 100 bottles of 100 ml phensedyl cough syrup and 102 cartons, each carton containing 100 bottles of 100 ml Recodex cough syrup which had been concealed alongwith the other articles. The recovered substance contained codeine phosphate which was beyond the prescribed quantity. It was argued by learned counsel for the petitioner that the bail petitioner was only transporting cough syrup in which the content of condeine phosphate was less than 10 mg (per dose) namely 5 ml and therefore by virtue of notification bearing No. 826(E) dated 14.11.1985 and S.O. 40 (E) dated 29.1.1993, no offence was made out under the provisions of Narcotic Drugs and Psychotropic Substances Act and, therefore, in such circumstances rejection of the bail application by the Sessions Judge and Gauhati High Court was not justified.
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 2228. Four fold arguments were raised on behalf of the bail .
petitioner before the Hon'ble Supreme Court which dealt with in the following manner:
"8. The contentions of the appellants were fourfold. In the first of place, it was contended that the cough syrup Phensedyl and Recodex are pharmaceutical products covered under the provisions of the Drugs & Cosmetics Act, that the Rules prescribe the measure of dosage as 5 ml. and that under Rules 65 and 97 of the Drugs & Cosmetics Rules, it rt is lawfully permissible to sell such cough syrups in the open market, which can also be transported, kept in stock and sold in the pharmaceutical shops as a prescribed drug under Schedule 'H' at Serial No.132. According to the appellants, such prescribed drugs under the Rules can contain codeine to the extent permissible. While referring to Rule 97, it was contended that Schedule H Drugs containing permissible extent of narcotic substance could be sold in retail on the prescription of Registered Medical Practitioner. The learned counsel, therefore, contended that each of the 100 ml. bottle, seized from the appellants, satisfy the requirement prescribed under the above referred to two Rules 65 and 97 and in the circumstances there was no question of proceeding against the appellants under the N.D.P.S. Act.
9. By referring to Rules 61(1) and 61(2) of the Drugs & Cosmetics Rules, it was contended that the prescribed licence which is required for sale, stock, exhibit, offer for sale or distribution as a mandatory requirement under Section 27 of the Drugs & Cosmetics Act providing for imposition of penalty would be applicable only to manufacturers or those who sell, stock, exhibit or offer for sale or distribution of drugs and that a transporter, in particular, the driver and a khalasi was under no obligation to hold a licence under the Drugs & Cosmetics Act.
10. At the very outset, the abovesaid submission of the learned counsel is liable to be rejected, inasmuch as, the conduct of the appellants in having transported huge quantity of 347 cartons containing 100 bottles in each carton of 100 ml. Phensedyl cough syrup and 102 cartons, each carton containing 100 bottles of 100 ml. Recodex cough syrup without valid documents for such transportation cannot be heard to state that he was not expected to fulfill any of the ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 23 statutory requirements either under the provisions of Drugs & .
Cosmetics Act or under the provisions of the N.D.P.S. Act.
11. It is not in dispute that each 100 ml. bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg. of codeine phosphate and the each 100 ml. bottle of Recodex cough syrup contained 182.73 mg. of codeine phosphate. When the appellants were not in a position to of explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the rt narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.
12. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml. bottle if related to the permissible dosage, namely, 5 ml. would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means 'contributing to cure of disease'. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent."
29. It would be noticed that the contention of the petitioner before the Hon'ble Supreme Court that the content of codeine phosphate in each 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less than 10 mg of codeine phosphate thereby would fall within the permissible limit as stipulated in the notifications dated 14.11.1985 and 29.1.1993 was negated by observing that the said contention should have satisfied the twin ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 24 conditions, namely that the contents of the narcotic substance should .
not be more than 100 mg of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice which means for contributing to cure of disease. It was made of absolutely clear that the assessment of codeine content on dosage basis can be made only when the cough syrup is definitely kept or rt transported which is exclusively meant for curing a disease and as an action of remedial agent.
30. That apart, the Hon'ble Supreme Court in Union of India and another vs. Sanjeev V. Deshpande (2014) 13 SCC 1 considered the controversy as to whether the content of psychotropic salt in the tablet could be separately counted for calculating the weight/volume of psychotropic substance in a medicinal preparation as had been canvassed before it by the petitioner. This contention was repelled and it was held that the gross weight of the drug is to be counted and not merely the net percentage/content of the salt in the medicinal preparation for finding out the actual weight of the drugs in reference to the Schedule under the NDPS Act.
31. Now, insofar as the contention of the petitioner that the violation, if any, falls within the ambit of Drugs and Cosmetic Act and the Rules framed thereunder and, therefore, the petitioner cannot be punished or even tried under the Narcotic Drugs and Psychotropic Substances Act, the same is equally without any force in view of the detailed judgment rendered by a learned Division Bench of the Punjab & Haryana High Court in Inderjeet Singh @ Laddi and others vs. ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 25 State of Punjab, 2015 (1) Crimes 308, wherein it was categorically .
held that the mere fact that the drugs which are covered under 'manufactured drugs' under the NDPS Act and the NDPS Rules as mentioned in the Schedule of the NDPS Act and Schedule I of the NDPS Rules and are also covered by the Drugs and Cosmetic Act and of the Rules framed thereunder would not mean that the offender can be penalized only under the Drugs and Cosmetic Act and the Rules and rt not proceeded against the NDPS Act and the NDPS Rules, the stringent provisions of the latter can be resorted to. The relevant observations read thus:
"[11] A perusal of the order dated 6.9.2012 passed in the case of Inderjeet Singh @ Laddi shows that it was contended by the learned counsel for the petitioner in the said case that "manufactured drugs" do not come within the purview of the NDPS Act and the petitioner can at the most be prosecuted only under the Drugs and Cosmetics Act and not under the NDPS Act. In any case he can be prosecuted only under Section 21 and not under Section 22 of the NDPS Act. [12] Learned Counsel appearing for the petitioners have inter alia primarily contended that in respect of recoveries from an accused in respect of 'manufactured drugs', an accused is not liable to be prosecuted under the NDPS Act. This is more so for the reason that certain 'manufactured drugs' were declared as 'narcotic drugs' by notification of the Central Government vide notification dated 14.11.1985 in which 88 drugs were declared as 'narcotic drugs', besides, vide notification dated 29.1.1993, 17 more drugs were notified as 'manufactured drugs'. However, these notifications contain various exceptions and in case the 'manufactured drug' in respect of which contravention is alleged but which falls within the exceptions then the case would not come within the purview of the NDPS Act.::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 26
[13] Therefore, it is submitted that the drugs in respect of .
which exceptions have been made in the notifications afore- stated, a prosecution cannot be launched under the NDPS Act. It is submitted that in terms of Rule 97 of the Drugs and Cosmetics Rules 1945 ("1945 Rules" - for short), labelling of medicines is to be done according to the contents of the of medicine and the Schedule under which it falls as is mentioned therein. If any drug for example mentioned in Schedule 'H' of the 1945 Rules is found without labelling, then the same is at the most liable to be tried only under the D&C Act and the 1945 rt Rules. Besides, if a person is found in possession of any of the drugs mentioned in Schedule 'H' of 1945 Rules, as well as in the notifications dated 4.11.1985 and 29.1.1993, which fall within any of the exceptions mentioned therein then these are also liable to be tried under the D&C Act only. This, it is submitted, is the combined effect of reading Sections 16, 17, 17-A, 17-B and 18 of the D&C Act and Rules 97, 104, 104-A and 105 of the 1945 Rules, which provide for standards to be maintained under the D&C Act and violation thereof is an offence under Section 18 of the D&C Act. There is no provision under the NDPS Act which prescribes for such an offence to be tried under the said Act. It is submitted that if any drug/psychotropic substance recovered from any unauthorized person and is covered by Schedule I of the Narcotic Drugs and Psychotropic Substances Rules 1985 (as amended) ("NDPS Rules" - for short), then it is to be tried under the NDPS Act and if such drug and psychotropic substance is not covered by Schedule I of the NDPS Rules as provided under Rule 64 of the NDPS Rules then it is liable to be tried under the D&C Act. [14] In response, learned State counsel have submitted that the menace of drugs is so rampant in this part of the country that it is to be curbed with a heavy hand. It is submitted that the provision of the NDPS Act and the NDPS Rules, besides, the D&C Act and the 1945 Rules have only provided the procedure for trying the offences. It is submitted that there may be overlapping of certain drugs under the D&C Act and the 1945 Rules as also the NDPS Act and the NDPS Rules, however, the same is inconsequential as it is for the State to prosecute ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 27 the offender in accordance with law and if a harsher provision .
under the NDPS Act and NDPS Rules is resorted to in respect of drugs which fall under the NDPS Act, the same is not to be nullified or the trial declared illegal merely because a harsher provision has been followed. In any case it is submitted that the quantity of the manufactured drugs of which there has been a of contravention is to be taken in bulk and not on the basis of the dosage of the drugs per capsule. Even if the contents of the offending drug fall within the exception then the same is to be taken in respect of the entire contraband of which there has rt been a contravention or has been recovered being carried unauthorizedly.
[15] We have given our thoughtful considerations to the matter.
[16] The question that arises for consideration is whether an accused can be tried for an offence under the NDPS Act in case he is found in possession of 'manufactured drugs' which fall in the definition of 'manufactured drug' in terms of Section 2
(xi) of the NDPS Act and has been notified as such by notifications dated 14.11.1985 and 29.1.1993 as 'manufactured drugs', but contain an exception as regards the percentage of dosage in the drug.
[17] In order to consider the said issue, the definitions of 'narcotic drug, 'manufactured drug' and 'psychotropic substances' as defined in Section 2 (xiv), (xi) and (xxiii) of the NDPS Act may be noticed which read as under:-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods;
A perusal of the above shows that coca leaf, cannabis (hemp), opium, poppy straw and including manufactured goods are included in the definition of 'narcotic drug'.
(xi) "manufactured drug" means -
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 28 any, under any International Convention, by notification .
in the Official Gazette, declare to be a manufactured drug;" .
[18] Therefore, the Central Government may by notification in the official Gazette, declare any other narcotic substance or preparation to be a 'manufactured drug'.
of (xxiii)"psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or rt preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;"
[19] Psychotropic substance has been defined to mean 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 to the NDPS Act.
[20] In terms of clause (b) of Section 2 (xi) NDPS Act relating to 'manufactured drug', any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any international convention, by notification in the official Gazette, declare to be a manufactured drug, are to be considered as such, that is, as manufactured drug. The Ministry of Finance, Department of Revenue, has published notification S.O. 826 (E) dated 14.11.1985 in the Gazette of India, Extraordinary, Part II, Section 3, Sub-Section (ii).
[21] The said notification has been issued in exercise of power conferred by sub clause (b) of clause (xi) of Section 2 NDPS Act, in terms of which the Central Government has declared the narcotic substances and preparations mentioned therein to be "manufactured drug". Insofar as the drugs mentioned in the present cases are concerned, it may be noticed that in the case of Inderjeet Singh @ Laddi (CRM No. M-13140 of 2012), 30 Rexcof bottles containing 5.88 gms of codeine; 1500 Momolit of tablets containing 3.45 gms of Diphenoxylate; 500 Phenotil tablets containing 1.1 gms ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 29 Diphenoxylate and 150 Parvon Spas capsules containing 9.70 .
gms of Dextropropoxyphene were recovered. [22] The various drugs that are provided for under the D&C Act and the 1945 Rules are also provided in the NDPS Act and therefore, there is a somewhat overlapping of the same. The D&C Act was enacted in 1940. The Second Schedule of the of D&C Act prescribes the standards to be complied with by imported drugs and by drugs manufactured for sale, sold, stocked or exhibited for sale or distributed. Chapter III of the D&C Act relates to 'Import of Drugs and Cosmetics'. Section 8 rt thereof relates to 'Standards of Quality.' It is provided in terms of Section 8 (1) (a) of the D&C Act that for the purposes of Chapter III, the expression 'standard quality' means in relation to a drug, that the drug complies with the standard set out in the Second Schedule.
[23] Besides, Chapter IV of the D&C Act relates to 'Manufacture, Sale and Distribution of Drugs and Cosmetics.' In terms of Section 16 (1) (a) of the D&C Act that for the purposes of Chapter IV, the expression 'standard quality' means in relation to a drug, that the drug complies with the standard set out in the Second Schedule. The object of the said D&C Act is to regulate the import, manufacture, distribution and sale of drugs and cosmetics. The basic object is of a regulatory nature for the regulation of import, manufacture, distribution and sale of drugs and cosmetics. The D&C Act provides for penal consequences in respect of certain violations of the said Act and the 1945 Rules. Section 27 of the D&C Act provides for penalty for manufacture, sale etc. of drugs in contravention of Chapter IV. Section 27A provides for penalty for manufacture, sale etc. of cosmetics in contravention of Chapter IV. Section 28 provides for penalty for non-disclosure of the name of the manufacturer etc. Section 28A provides for penalty for not keeping documents etc. and for non-disclosure of information. Section 28B provides penalty for manufacture etc. of drugs or cosmetics in contravention of Section 26A which relates to the power of Central Government to prohibit manufacture etc. of drugs in public interest. Section 29 provides for penalty for use of Government Analyst's Report for advertising. Section 30 ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 30 relates to penalty for subsequent offences. Section 32 deals .
with cognizance of offences. Section 32B relates to compounding of certain offences. The violation of the 1945 Rules, therefore, entails penalty in terms of aforesaid provisions. As against this, the NDPS Act is an act to consolidate and amend the law relating to narcotic drugs to of make it comprehensive, besides, provide for stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in rt narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. The NDPS Act provides for stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The Schedule with reference to clause (xxiii) of Section 2 NDPS Act mentions various psychotropic substance which include alprazolam at serial No.30, chlordiazepoxide at serial No.36, delorazepam at serial No.42 and various others, besides, salts and preparations of the drugs mentioned therein. In the NDPS Rules, Chapter VII relates to psychotropic substances.
[24] Rules 64, 65 and 65A of the NDPS Rules read as under:-
"64. General prohibition - 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.
65. Manufacture of psychotropic substances (1) Subject to the provisions of sub-rule (2), the manufacture of any of the psychotropic substances other than those specified in Schedule I shall be in accordance with the conditions of a licence granted under the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the 1945 Rules) framed under the Drugs and Cosmetics Act, 1940 (23 of 1940), by an authority in charge of Drugs Control in a State appointed by the State Government in this behalf: Provided that the authority in charge of drug ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 31 control in a State referred to above may issue a licence .
to manufacture a psychotropic substance specified in Schedule III for the purpose of export only; (2) The authority in charge of drugs control in a State (hereinafter referred to as the Licensing Authority) shall consult the Drugs Controller (India) in regard to the of assessed annual requirements of each of the psychotropic substances in bulk form referred to in sub-
rule (1) in the country and taking into account the rt requirement of such psychotropic substances in the State, the quantity of such substance required for supply to other manufacturers outside the State and the quantity of such substance required for reasonable inventory to be held by a manufacturer, shall specify, by order, the limit of the quantity of such substance which may be manufactured by the manufacturer in the State. (3) The quantity of the said psychotropic substance which may be manufactured by a licensee in an year shall be intimated by the Licencing Authority to the licensee at the time of issuing the licence:
Provided that nothing contained in this rule shall apply in case the psychotropic substances specified in Schedule I are manufactured, possessed, transported, imported inter-State, exported inter-State, sold, purchased, consumed or used subject to other provisions of this Chapter which applies to psychotropic substances which are not included in Schedule I and for the purposes mentioned in Chapter VII A:
Provided further that the authority in charge of the drug control in a State referred to in sub-Rule (2) of Rule 65 shall consult the Narcotics Commissioner before issuing a licence under Rule 65 in respect of psychotropic substances included in Schedule I [and Schedule III] 65A. Sale, purchase, consumption or use of psychotropic substances No person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945.::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 32
[25] In terms of Rule 64 of the NDPS Rules, no person is to .
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 NDPS Rules. Rule 65 relates to manufacture of psychotropic substances and it is provided in subRule (1) that manufacture of any of the of psychotropic substances other than those specified in Schedule I of the NDPS Rules shall be in accordance with the conditions of a licence granted under the 1945 Rules, by an authority in charge of Drugs Control in a State appointed by the State rt Government in this behalf. In terms of sub-Rule (2) of Rule 65 of the NDPS Rules, the authority in charge of drugs control in a State that is the Licensing Authority is to consult the Drugs Controller (India) in regard to the assessed annual requirements of each of the psychotropic substances in bulk form referred to in subRule (1) in the country and taking into account the requirement of such psychotropic substances in the State, the quantity of such substance required for supply to other manufacturers outside the State and the quantity of such substance required for reasonable inventory to be held by a manufacturer, shall specify, by order, the limit of the quantity of such substance which may be manufactured by the manufacturer in the State. In terms of Rule 65A of the NDPS Rules, no person is to sell, purchase, consume or use of psychotropic substance except in accordance with the 1945 Rules. Schedule I of the NDPS Rules referred to in Rule 64 provides for various narcotic drugs and psychotropic substances. The provisions of the NDPS Act and the NDPS Rules as also the D&C Act and the 1945 Rules show that there is overlapping of drugs of various types. [26] In terms of the afore-referred notification dated 14.11.1985, 88 drugs have been notified and 10 of the drugs provide for some kind of exceptions which are mentioned at serial No.16, 35, 36, 37, 48, 58, 70, 76, 83 and 87 which read as under:-
"(16) Preparations made from the extract or tincture of Indian Hemp, except those which are capable only of external use.::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 33
(35) 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 concentration of not more than 2.5 of per cent in undivided preparations and which have been established in therapeutic practice.
(36) Dihydrocodine and Acetyldihydrocodeine, other derivatives of Dihydrocodeine and their salts such as, rt Paracodine and Acetyl Codone and the like, all dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more than 100 miligrames 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.
(37) Beta-4 Merphylinylethylmorphine (also known as Homocodeine, Hybernil, Pholcodine and the like) and its salts; and dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more then 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. (48) Norcodeine and its salts; 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 a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice.
(58) Ethyl 1-(3.Cyano-3, 3-diphenylpropyl)-4- phenylpiperidine -4- carboxylic acid ethyl ester (the international non-proprietary name of which is Diphenoxylate), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except preparations of diphenoxylate containing, ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 34 per dosage unit, not more than 25 mg. of diphenoxylate .
calculated as base, and a quantity of atrophine sulphate equivalent to at least one per cent of the dose of disphenoxylate.
(70) 6- nicotinylcodeine (the international nonproprietary name of which is Nicocodine) and its salts, all dilutions of 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 rt undivided preparation and which have been established in therapeutic practice.
(76) 6- nicotinylcodeine (the international nonproprietary name of which is Nicocodine) and its salts, all dilutions and preparations, except those which are compounded with one or more than 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 preparation and which have been established in therapeutic practice.
(83) 1-(3-cyano-3, 3-diphenylpropyl) 4-phenylisonin pecotic acid (otherwise known as Defenoxine or Diphenoxylic acid) and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except any preparation of Difenoxine containing, perdosage unit, a maximum of 0.5 milligrams of difenoxine calculated as base and a quantity of atropine sulphate equal to at least 5 per cent of the quantity of difenoxine, calculated as base, which is present in the mixture.
(87) (+)- 4 dimethylamino -1, 2-diphenyl-3- methyl-2- butanol propionate, (the international nonproprietary name of which is Dextropropoxyphene), and its salts, preparations, admixturtes, extracts and other substances containing any of these drugs, except preparations for oral use containing not more than 135 milligrams of Dextropropoxyphene base per dosage unit or with a concentration of not more than 2.5 per cent in undivided ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 35 unit or with a concentration of not more than 2.5 per cent .
in undivided preparations, provided that such preparations do not contain any substances controlled under the Convention on Psychotropic Substances, 1971.
[27] Thereafter, the Central Government vide notification of dated 29.1.1993 has notified 17 more drugs as "manufactured drugs". In all 105 drugs have been notified as "manufactured drugs" by the Central Government. Most of the drugs that have rt been notified by the Central Government as "manufactured drugs" are covered under Scheduled 'H' of the 1945 Rules.
Section 3 (b) of the Drugs and Cosmetics Act defines 'drug' as follows:-
"(b) "drug" includes-
(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]
(ii) such substances (other than food) intended to affect the structure of any function of the human body or intended to be used for the destruction of [vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;] [(iii) all substances intended for use as components of a drug including empty gelatin capsules; and
(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;] ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 36 [28] The Central Government in terms of the 1945 Rules has .
conferred powers on the State Government to grant licences. Part VI of the 1945 Rules provides for sale of drugs other than homeopathic medicines. Rule 59 (1) of the 1945 Rules envisages that the State Government shall appoint licensing authorities for the purpose of this part for such areas as may be of specified. Sub-Rule (2) of Rule 59 provides for grant or renewal of a licence to sell, stock, exhibit or offer for sale or distribute drugs, other than those included in Schedule 'X' of the 1945 Rules, which relates to special drugs for import licenses, shall rt be made in Form 19 or Form 19A, as the case may be, or in the case of drugs included in Schedule 'X' shall be made in Form 19 C to the licensing authority. Rule 60 of the 1945 Rules envisages that a licensing authority may with the approval of the State Government by an order in writing delegate the power to sign licences and such other powers as may be specified in the order to any other person under his control. Rule 61 of the 1945 Rules provides for forms of licences to sell drugs. Rule 62 relates to sale at more than one place. Rule 62A relates to restricted licences in Forms 20A and 21A. Rule 62B relates to conditions to be satisfied before a licence in Form 20A or Form 21A is granted. Rule 62C relates to application for licence to sell drugs by wholesale or to distribute the same from a motor vehicle. Rule 62D relates to Form of licences to sell drugs by wholesale or distribute drugs from a motor vehicle. Rule 63 relates to duration of licence. Rule 63A relates to certificate of renewal of a sale licence and Rule 63B relates to certificate of renewal of licence. Rule 64 relates to conditions to be satisfied before a licence in Form 20, 20B, 20F, 20G 21 and 21B is granted or renewed. Rule 65 relates to condition of licences. Rule 65A deals with additional information to be furnished by an applicant for licence or a licensee to the licensing authority. Rule 66 deals with cancellation and suspension of licences. Rule 66A deals with procedure for disposal of drugs in the event of cancellation of licence. The said Rules fall under Part VI of the 1945 Rules, the powers in respect of which are conferred on the State Government.
::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 37[29] In terms of Section 26A of the D&C Act, the Central .
Government has power to prohibit manufacture etc. of drug and cosmetic in public interest. It is provided therein that without prejudice to any other provision contained in this Chapter i.e. Chapter IV, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human of beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is rt necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug or cosmetic. In terms of Section 26B of the D&C Act, the Central Government has the power to regulate or restrict, manufacture etc. of drugs in public interest.
It is provided that without prejudice to any other provision contained in this Chapter i.e. Chapter IV, if the Central Government is satisfied that a drug is essential to meet the requirements of an emergency arising due to epidemic or natural calamities and that in the public interest, it is necessary or expedient so to do, then, that Government may, by notification in the official gazette, regulate or restrict the manufacture, sale or distribution of such drug.
[30] The licences that are issued to the manufacturers and to other various persons to sell, stock, exhibit, offer for sale or distribute the drugs other than the drugs mentioned in Scheduled 'C', 'C (1)' and 'X', which are issued in Forms 20, 20A and 20B of the 1945 Rules. Rule 97 falls under Part IX of the 1945 Rules which deals with labelling and packing of drugs other than homeopathic medicines. In terms of said Rule 97, the container of a medicine for internal use shall contain the particulars as mentioned therein. Rule 97 (1) of the 1945 Rules reads as under:-
"97. Labelling of medicines. (1) The container of a medicine for internal use shall -
(a) if it contains a substance specified in Schedule G, be labelled with the words 'Caution: it is dangerous to take ::: Downloaded on - 15/04/2017 20:46:41 :::HCHP 38 this preparation except under medical supervision' .
conspicuously printed and surrounded by a line within which there shall be no other words;
(b) if it contains a substance specified in Schedule H be labelled with the symbol Rx and conspicuously displayed on the left top corner of the label and be also labelled of with the following words:-
'Schedule H drug Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only'; rt (c) if it contains a substance specified in Schedule H and comes within the purview of the Narcotic Drugs and Psychotropic substance Act, 1985 (61 of 1985) be labelled with the symbols NRx which shall be in red and conspicuously displayed on the left top corner of the label, and be also labelled with the following words:-
'Schedule H drug Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only';
(d) if it contains a substance specified in Schedule X, be labelled with the symbol XRx which shall be in red conspicuously displayed on the left top corner of the label, and be also labelled with the following words:-
'Schedule X drug Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only';"
[31] The 1945 Rules, therefore, provide for various drugs which are included in Schedules 'C', 'C (1)', 'H' and 'X'. Schedule 'C' relates to biological and special products. Schedule 'C (1)' relates to other special products which includes vitamins and preparations containing vitamins not in a form to be administered parenterally. Liver extract and preparations containing liver extract not in a form to be administered parenterally. Vaccine not in a form to be administered parenterally. Antibiotics and preparations thereof not in a form to be administered parenterally etc. Schedule 'H' relates to the prescription of drugs and is referable to Rule 65 and 97 of the 1945 Rules which have been reproduced above i.e. 'condition of licence' and 'labelling of medicines.' ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 39 [32] As already noticed some psychotropic substances and .
Schedule 'H' drugs are overlapping. The following psychotropic substances at serial numbers in the Schedule of NDPS Act have also been mentioned in Schedule 'H' of the 1945 Rules:-
Sr.No. of Phychotropic Sr.No. of Drug in Schedule H Substance
30. Alprazolam 15 Alprazolam of
36. Chlordiazepoxide 105 Chlordiazepoxide 43 Diazepam 147 Diazepam 50 Flurazepam 207 Flurazepam rt 56 Lorazepam 64 Nitrazepam 294 Lorazepam 360 Nitrazepam 66 Oxazepam 371 Oxazepam 69 Phenobarbital 396 Phenobarbital [33] In Schedule 'H' of the 1945 Rules, the drugs in respect of which there has been misuse by bulk sale for purposes other than medicinal or therapeutic use are mostly, codeine at serial No.132, Dextropropoxyphene at serial No.146 and Diphenoxylate its salt at serial No. 156 are included. [34] The drug Dextropropoxyphene Hcl was found in the case of Ravinder Singh alias Rinku v. State of Punjab (CRM No.M-1379 of 2013). At serial No. 87 of the notification dated 14.11.1985,the drug(+)-4-dimethylamino-1,2-diphenyl-3-methyl- 2-butanon propionate (the international non-proprietary name of which is Dextropropoxyphene), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except preparations for oral use containing not more than 135 milligrammes of Dextropropoxyphene base per dosage unit or with a concentration of not more than 2.5 per cent in undivided preparations, provided that such preparations do not contain any substances controlled under the Convention of Psychotropic Substances, 1971. Therefore, in terms of notification dated 14.11.1985, Dextropropoxyphene is a drug, which has been notified as a manufactured drug though with a certain exception in terms of Section 2 (xi) (b) of the NDPS Act and is also a drug in Schedule 'H' of the 1945 Rules.::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 40
[35] Similarly, in the case of Rani v. State of Punjab (CRM .
No. M-14461 of 2012) 2170 Parvon Spas capsules and 900 other capsules having mark of Subhimol were recovered. As per the Chemical Examiner's Report, the Parvon Spas capsules contained salt Dextropropoxyphene Hcl 74.90 mg and capsules Subhimol contained salt of Dextropropoxyphene Hcl of 74.96 mg. In Mohd. Shamshad v. State of Punjab (CRM No. M- 20282 of 2012), 500 capsules of Parvon Spas were recovered which as per the Chemical Examiner's report contained Dextropropoxyphene Hcl. Mostly the manufactured drugs in rt respect of which there is a contravention contain Dextropropoxyphene, Codeine and these according to the learned counsel for the petitioners are not 'manufactured drugs' so as to come within the purview of the NDPS Act. However, in terms of notification dated 14.11.1985 these are specifically mentioned as 'manufactured drugs' and contravention of these would be an offence under Section 21 of the NDPS Act, which relates to punishment for contravention in relation to manufactured drugs and preparations; though these may also be an offence under the D&C Act and the 1945 Rules. The question that these provide for exception would not be of much consequence as these are carried in a bulk form and in such a manner that they are not intended to be used for medicinal purposes but are intended to be used for intoxication and getting a stimulating effect.
[36] These are mostly used as sedatives to go into a trance. Besides, when these are carried in a bulk form without proper authorization or licence, then these would fall within the violations provided for under the NDPS Act and the NDPS Rules. The questions of these being within the exception provided for per dose usage would be inapplicable especially when there is no proper authorization or licence. It may be noticed that Section 21 NDPS Act which relates to punishment for contravention in relation to manufactured drugs and preparations provides for different punishments in respect of contravention of any provisions of the NDPS Act or any Rule or order made or conditions of licence granted thereunder, ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 41 manufactures, possesses, sells, purchases, transports, imports .
inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug depending upon the quantity of which there has been a contravention, that is, small quantity, involving quantity lesser than commercial quantity but greater than small quantity and of involving commercial quantity. Section 21 of the NDPS Act reads as under:-
"21. Punishment for contravention in relation to rt manufactured drugs and preparation Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) Where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
[37] The Central Government has specified 'small quantity' and 'commercial quantity' of drugs which is with reference to clause (viia) and (xxiiia) of Section 2 of the NDPS Act in a tabulated form vide notification dated 19.10.2001. Clause (viia) ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 42 and (xxiiia) of the NDPS Act define; 'commercial quantity' and .
'small quantity' as follows:-
"(vii a) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;
of (xxiii a) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government rt by notification in the Official Gazette."
[38] The table specifying 'small quantity' and 'commercial quantity' of narcotic drugs and psychotropic substances vide notification dated 19.10.2001 contains horizontal columns from (1) to (6) mentioning the serial number, name of narcotic drug and psychotropic substance, other non-proprietary name, chemical name, small quantity (in grams) and commercial quantity (in grams/kilograms) respectively. The Central Government has thereafter 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 in terms of notification dated 19.10.2001. The said notification dated 18.11.2009 reads as under :-
Notifications, New Delhi, the 18th November, 2009 S.O. 2941 (E).- In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055 (E), dated 19th October, 2001 namely:-
In the Table at the end after Note 3, the following Note shall be inserted, namely:-
"(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 ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 43 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."
[39] The Central Government, therefore, by notification dated 19.10.2001 has specified 'small quantity' and of 'commercial quantity' of various narcotic drugs and psychotropic substances by a table. Notification dated 18.11.2009 has been issued by the Central Government, which rt mentions that quantities shown in column 5 that relates to 'small quantity' and column 6 that relates to 'commercial quantity' of the table relating to respective drugs shown in column 2 that relates to the name of narcotic drug and psychotropic substance, is to apply to the entire mixture or any solution or any one or more of narcotic drugs or psychotropic substances of that particular drug in dosage form etc. wherever existence of such substance is possible and not just its pure drug content. The intention of the said notification is to prevent and prohibit the use of narcotic drugs and psychotropic substances wherever there is a misuse of the said drugs for other than medicinal or therapeutic use. As has already been noticed various 'manufactured drugs' have been notified vide notifications dated 14.11.1985 and 29.1.1993. Section 21 of the NDPS Act provides for punishment for contravention in relation to manufactured drugs and preparations. The punishment prescribed is with reference to the quantity possessed. Therefore, the punishment which an offender is liable to be inflicted with in case he contravenes the provisions of Section 21 of the NDPS Act is dependent on the contravention of the quantity of drug that is involved. For purpose of determining the quantity as to whether it is small quantity, lesser than commercial quantity but greater than small quantity or commercial quantity is to be determined with reference to the notification providing a table as afore-mentioned specifying small quantity and commercial quantity to which Note 4 has been added vide notification dated 18.11.2009 mentioning therein that the quantity whether it is small quantity or ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 44 commercial quantity relating to the drugs shown in column 2 is .
to apply to the entire mixture or any solution or any one or more narcotic drug or psychotropic substance of that particular drug in dosage form etc. wherever existence of such substance is possible and not just its pure content.
[40] The manufactured drugs of which there has been a of contravention in the present cases have been sold, purchased, distributed, stored, transported, carried etc. in a bulk form and mostly these are without proper licences or authorizations. In rt respect of such drugs which are carried in bulk form, the notification dated 18.11.2009 would apply and the question that these drugs contain an exception would not be applicable as the exceptions would apply when the drugs are for medicinal or therapeutic use. Besides, the quantity of manufactured drugs is not to be determined on per capsule basis when these are carried without proper licence or authorization. In other words, the mere dosage of the manufactured drug in one capsule is not to be considered but the dosage in the number of capsules together is to be considered for the purpose of determining as to whether the exceptions provided in the notification dated 14.11.1985 declaring the narcotic substances and preparations as mentioned therein to be manufactured drugs. Moreover, in case of contravention of Section 21 NDPS Act relating to manufactured drugs, Note 4 of the notification 18.11.2009 would apply that is to say that the quantity in respect of which there is a contravention is 'small quantity', 'lesser than commercial quantity but greater than small quantity' or 'commercial quantity' is to 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 etc. wherever existence of such substance is possible and not just its pure drug content. Therefore, the question of exceptions being provided in respect of drugs at serial No.16, 35, 36, 37, 48, 58, 70, 76, 83 and 87 of the notification dated 14.11.1985 is inconsequential when these drugs are carried in a bulk form and the entire quantity of the bulk is to be taken into consideration and not per dosage specially when these are ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 45 carried in violation of the D&C Act and the 1945 Rules that is to .
say are sold, purchased, distributed, stored, transported, carried etc. without a valid licence or kept without a valid authorization.
[41] Similarly there are certain 'psychotropic substances' which have been mentioned in the Schedule of the NDPS Act of and which are used for medicinal purposes also. The said 'psychotropic substances' can be manufactured in accordance with the conditions of a licence granted under the 1945 Rules. Except those substances which are not mentioned in the rt Schedule 'I' of the 1945 Rules for which purpose a licence can be granted under the said 1945 Rules, the others that is without licence or authorization would entail the violation of the NDPS Act and the NDPS Rules which would make out an offence under the said latter provisions. Therefore, the possession of a 'manufactured drug' which has been notified in terms of notifications dated 14.11.1985 and 29.1.1993 or 'psychotropic substances' and which are mentioned in Schedule 1 of the NDPS Act would entail prosecution either under the NDPS Act or the D&C Act. The fact that the prosecution has enforced a harsher provision of the NDPS Act than the normal provision of the D&C Act would not be of any consequence or significance. [42] In Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others, 1974 AIR(SC) 2009(Seven Judges Bench), the Hon'ble Supreme Court considered the case relating to the legality of the certain provisions of Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises (Eviction) Act 1955. Chapter V-A was introduced in the Bombay Municipal Act 1888 by Maharashtra Act 14 of 1961. The said Chapter V-A contained Sections 105- A and 105-B. According to the provisions of those Sections, the Commissioner in relation to premises belonging to or vesting in, or taken on lease by the Corporation and the General Manager of the Bombay Electric Supply and Transport Undertaking in relation to premises of the Corporation which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of unauthorized occupation of any Corporation premises. According to Section 105-B, the ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 46 Commissioner by notice served on the person in unauthorized .
occupation, could ask him to vacate if he had not paid for a period of more than two months the rent or taxes lawfully due from him in respect of such premises, or sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or committed, or is committing, such acts of of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises; or otherwise acted in contravention of any of the terms, express or implied, under which he is authorized to occupy such premises; or if any rt person is in unauthorized occupation of any corporation premises; or any corporation premises in the occupation of any person are required by the corporation in the public interest. Before making such an order, the Commissioner is required to issue a notice calling upon the person concerned to show cause why an order of eviction should not be made and specify the grounds on which the order of eviction is proposed to be made. The person concerned could file a written statement and produce documents and was entitled to appear before the Commissioner by advocate, attorney or pleader. The Commissioner, therefore, had the power to evict those in unauthorized occupation in relation to premises belonging to or vesting in, or taken on lease by the corporation. The Commissioner for the purpose of holding an enquiry had the same powers as are vested in a civil Court under the Code of Civil Procedure, when trying a suit, in respect of summoning and enforcing the presence of any person and examining him on oath; besides, requiring the discovery and production of documents as also any other matter which may be prescribed by regulations. The provisions of the Bombay Government Premises (Eviction Act) were also more or less similar except that they related to Government premises and the power to order of eviction is given to competent authority not lower in rank than that of a Deputy Collector or an Executive Engineer appointed by the State Government. The only other matter in respect of which the provisions of the Government Premises (Eviction) Act differed from the provisions of the Bombay Municipal Corporation Act was that Section 8-A of the former ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 47 Act provided that no Civil Court shall have jurisdiction to .
entertain any suit or proceedings in respect of the eviction of any person from any government premises on any of the grounds specified in Section 4 for the recovery of the arrears of rent or damages payable for use and occupation of such premises. It was submitted that there were two procedures of available to the Corporation and the State Government, one by way of a suit under the ordinary law and the other under either of the two Acts, which is harsher and more onerous than the procedure under the ordinary law, therefore, the latter was hit rt by Article 14 of the Constitution in the absence of any guidelines as to which procedure may be adopted. After detailed discussion, it was held that where a statue providing for a more drastic procedure different from the ordinary procedure covers the whole fields covered by the ordinary procedure without any guidelines as to the class of cases in which either procedure is to be resorted to, the statute will be hit by Article 14. Even there, a provision for appeal may cure the defect. Further, if from the preamble and surrounding circumstances, as well as the provisions of the statute themselves explained and amplified by affidavits, necessary guidelines could be inferred, the statute will not be hit by Article
14. Besides, where the statute itself covers only a class of cases, the statute will not be bad.
[43] The fact that in such cases the Executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore, the contention that mere availability of two procedures will vitiate one of them, that is, the special procedure, it was held, was not supported by reason of authority. It was further held that the statute itself in the two classes of cases clearly laid down the purpose behind them, that is, that the premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. It was, therefore, held that merely because one procedure provides the forum of a civil court while the other provides the forum of an administrative tribunal, it cannot be said that the latter is necessarily more drastic and onerous. To attract the ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 48 inhibition of Article 14, it was held there must be substantial and .
qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial. Superfine differences are bound to exist when two procedures are prescribed.
[44] Therefore, it follows that merely because the prosecution of for a violation of the provisions of D&C Act and the 1945 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 Section 21 of the NDPS Act a reference to rt which has been made above. A detailed procedure has been provided for trial of cases under the NDPS Act. Section 36A of the NDPS Act relates to offences triable by the Special Court. Section 36B relates to appeal and revision. Section 36C relates to application of the Code of Criminal Procedure to proceedings before a Special Court and Section 36D relates to transitional provision. In terms of Section 36C, the provisions of the Code of Criminal Procedure (including the provisions as to bail and bail bonds), are to apply to proceedings before a Special Court and for the purposes of the said provision, the Special Court is deemed to be a Court of Session and the person conducting a prosecution before a Special Court is deemed to be a Public Prosecutor. Section 4 of the Criminal Procedure Code relates to trial of offences under the Indian Penal Code and other laws. Sub Section (2) thereof envisages that all offences under any other law that is law other than the Indian Penal Code which would include cases under the NDPS Act, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, that is, the provisions contained after Section 4 but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. For the trial of offences under the NDPS Act proper procedure and guidelines have been provided.
[45] Therefore, the procedure provided for trial and prosecution of offences under the NDPS Act would not in any manner be hit by Article 14 of the Constitution; besides, even if ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 49 it covers only a class of cases which are mentioned in the .
NDPS it would not be bad and the fact that in such cases the prosecution chooses as to which cases are to be tried under the special procedure would not affect the validity of the NDPS Act and the mere availability of two procedure does not vitiate one of them that is the special procedure under the NDPS Act.
of Besides, it is for the State to decide as to in which of the two enactments that is, the NDPS Act or the D&C Act is the prosecution to be launched. It may also appropriately be noticed that the provisions of Section 80 of the NDPS Act rt envisage that application of the D&C Act is not barred. Section 80 NDPS Act reads as under:-
"Application of the Drugs and Cosmetics Act, 1940 not barred.---- The provisions of this Act or the rules made thereunder shall be in additional to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder."
[46] This Court in the case of Vinod Kumar v. State of Punjab, 2013 1 RCR(Cri) 428 considered the question as to whether a wholesale drug dealer, a retailer and their employees possessing proper and valid licence for dealing in drugs specified in Schedule C and Schedule C1 as well as drugs not specified in those Schedules of the D&C Act and the 1945 Rules can be held liable for an offence punishable under the NDPS Act. After making a reference to Section 80 NDPS Act, it was held that a person can very well be prosecuted both under the NDPS Act as well as under the D&C Act simultaneously for violation of the provisions of the said Acts. It was held that merely because a person is prosecuted for violation of D&C Act that would not operate as a bar to prosecute him under the provisions of the NDPS Act. Rather if the offences made out under the D&C Act also comes within the scope of the provisions of the NDPS Act such person shall be prosecuted for possession of the contrabands violating the provisions of the NDPS Act. Both the Acts, it was held are independent and violation of one Act does not mean no violation of the other. Therefore, merely, because prosecution is launched and trial is ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 50 conducted under the NDPS Act, which is considered a harsher .
and an onerous provision, the initiation of the proceedings cannot be said to be improper or bad. In case it is done for any extraneous reasons or circumstances or with a mala fide intention, the same would of course be subject to judicial scrutiny and review. In the circumstances, when there has been of a contravention of a certain manufactured drug or a psychotropic substance and which falls within the purview of NDPS Act and the NDPS Rules, the possession, sale and transportation of which is prohibited, or is being done without rt proper licence or with no proper authorization, the prosecution under the provisions of the NDPS Act would not be prohibited and it cannot be said to be in any manner illegal. [47] The contention of the learned counsel for the petitioners is that the police authorities being unmindful of the actual provisions of the NDPS Act and the NDPS Rules have harassed even the bona fide chemists in the State holding a valid and legal licence in accordance with the provisions of the D&C Act and the 1945 Rules. In this regard it needs to be mentioned that the instance of unnecessary harassment are indeed unfortunate and these need to be seriously viewed by the Courts. The provisions of the NDPS Act including providing for prosecution in respect of manufactured drugs are stringent and harsh.
[48] These have been enacted to curb menace of drug trafficking. In Nirnajan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, 1990 AIR(SC) 1962, the Hon'ble Supreme Court considered a case with regard to stringent provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1987. It was observed that the said Act is a penal statute. Its provisions are drafted in that they provide minimum punishments and in certain cases enhanced punishments also. The provisions of the said Act were a departure from the ordinary law since the ordinary law was found to be inadequate and not sufficiently effective to deal with the special class of offences relating to terrorists and disruptive activities. The legislature, therefore, made special provisions which can in certain respects be said to be harsh, created a special forum for the speedy disposal of ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 51 such cases, provided for raising a presumption of guilt, placed .
extra restrictions in regard to release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects.
[49] It was held that it is well settled that statutes which impose a term of imprisonment for what is a criminal offence of under the law must be strictly construed. It was further held that while invoking a criminal statute such as the aforesaid Terrorists and Disruptive Activities (Prevention) Act, the prosecution is duty bound to show from the record of the case rt and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishment as compared to the punishment prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duties are cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care is to be taken that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. The said observations in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijiaya were affirmed by a Five Judges Bench of the Hon'ble Supreme Court in Sanjay Dutt v. The State through CBI Bombay, 1994 5 JT 540. Therefore, when a law visits a person with serious penal consequences extra care is indeed to be taken that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. However, on that account to say that the offenders who have contravened and indulged in clandestine sale of narcotic drugs and manufactured drugs that have been notified by the Central Government in the official gazette, besides, psychotropic substances are to be penalized only under the D&C Act and the 1945 Rules would not be the correct position in law. It is for the State to prosecute the offenders wherever the provisions of the NDPS Act and the NDPS Rules have been violated in ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 52 accordance with the said provisions rather than to say that such .
offenders can only be penalized under the D&C Act and the 1945 Rules. In other words, wherever there is a violation of the provisions of the NDPS Act and the NDPS Rules, then the offence comes within the ambit of the said Act and the Rules. The prosecution against the offenders can, therefore, be validly of launched under the NDPS Act.
[50] The Delhi High Court in Rajinder Gupta v. State, 2006 CrLJ 674referred to Rule 97 (1) of the D&C Rules and rt observed as follows:-
"Rule 65 (1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in schedule I shall be in accordance with the conditions of license granted under the D and C Rules and D and C Act. In other words, in so far as the psychotropic substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the D and C Act and Rules and not by the NDPS Act or NDPS Rules. Rule 66 relates to possession etc. of psychotropic substances. Sub-Rule (1) thereof provides that no person shall possess "any psychotropic substance" for any of the purposes covered by the D and C Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under the NDPS Rules. The expression"any psychotropic substance" obviously has reference to those listed in Schedule I to the NDPS Rules. Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance does not find mention in Schedule I to the NDPS Rules, the prohibition qua possession contained in Rule 64 does not apply; That being the case, in respect of such a psychotropic substance, Rule 66 would also not apply as it has reference to only those psychotropic substance which are included in Schedule I to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 53 substances. It is expressly subject to the provisions of .
Rule 64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances of which are not to be found in Schedule I to the NDPS Rules. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS rt Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule H drug would fall within the rigorous of the D&C Act and Rules."
[51] The above observations show that the psychotropic substances which are mentioned in Schedule I of the NDPS Rules do entail prosecution under the NDPS Act. To this it may be added that those drugs which are notified as 'manufactured drug' by the Central Government particularly in terms of notification dated 14.11.1985 and subsequent notification dated 29.1.1993 would entail prosecution under Section 21 of the NDPS Act. Therefore, in each case it would be required to be seen whether the drug in respect of which there is alleged to be a contravention by an offender is indeed in violation of the NDPS Act and this is to be determined and examined with reference to the notified manufactured drugs as mentioned in the notification dated 14.11.1985 and 29.1.1993. The contravention of psychotropic substances mentioned in the Schedule to the NDPS Act and the Schedule 'I' to the NDPS Rules in violation of the same may also entail prosecution under the NDPS Act. Besides, it would be also required to be examined whether the percentage of the drug is within the permissible limit as has been provided for. However, the bulk quantity, in respect of which there is a contravention or is recovered from an unauthorized person would be indicative of the fact that it was not being used for medicinal or therapeutic purposes but as a drug to sedate or for intoxication or to give a sharp stimulating effect to get an unhealthy thrill so as to get a ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 54 'kick'. It is to be kept in mind that drugs which are classified as .
narcotic drugs or psychotropic substances not used for medicinal or therapeutic purposes but are rather misused by drug addicts or drug traffickers would warrant prosecution under the NDPS Act.
[52] The common drugs that are mostly misused for of 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 rt 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. Drug addicts are known to take huge discharge of these drugs at a time and even drug manufacturers are packing 100 tablets of pouch/bottles packing of some such drugs though some of them even fall under Schedule 'H' drug of the 1945 Rules and are to be sold in retail on a prescription by a registered medical practitioner only or are to be supplied to registered medical practitioners, hospitals, dispensaries and nursing homes against signed order in writing which are to be preserved by the licencee for a period of two years in terms of Rule 65 (9) (a) and (b) of the 1945 Rules which reads as under:-
"(9) (a) Substances specified in Schedule H or Schedule X shall not be sold by retail except on and in accordance with the prescription of a Registered Medical Practitioner and in the case of substances specified in Schedule X, ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 55 the prescriptions shall be in duplicate, one copy of which .
shall be retained by the licensee for a period of two years.
(b) the supply of drugs specified in Schedule H or Schedule X to Registered Medical Practitioners, Hospitals, Dispensaries and Nursing Homes shall be of made only against the signed order in writing which shall be preserved by the licensee for a period of two years." [53] A perusal of the above Rule 65 (9) (a) and (b) mandates that the substances specified in Schedule 'H' or Schedule 'X' rt are to be sold in accordance with the prescription of a registered medical practitioner and in case of substances in Schedule 'X' the prescription is to be in duplicate and one copy of the same is to be retained by the licensee for two years. Insofar as the supply of drugs specified in the said Schedule 'H' or Schedule 'X' to registered medical practitioners, hospitals, dispensaries and nursing homes are concerned, the same are to be made only against the signed order in writing which are to be preserved by the licensee for two years. Therefore, it is not as if the drugs mentioned in Schedule 'X' can be carried by any licensee in any manner that he likes or can be received by him without adherence to the D&C Act and the 1945 Rules. The drugs which are mostly misused in Schedule 'H' as already noticed are Codenie, Dextropropoxyphene, Diphenoxylate, its salts at serial Nos.132, 146 and 156 of Schedule 'H'. These drugs fall within the ambit of 'manufactured drugs' as have been notified by the Central Government in terms of notification dated 14.11.1985 at serial Nos.35, 87 and 58 respectively and contravention of the same is punishable under Section 21 NDPS Act which envisages that whoever, in contravention of any provisions of this Act i.e. the NDPS Act or any Rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports interState, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable according to the quantity of the manufactured drug of which there has been a contravention and is specified therein.
::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 56[66] As a consequence of the above, it may be noticed that:-
.
(i) Manufactured drugs are those drugs which are defined in Section 2 (xi) of the NDPS Act and have been notified by the Central Government vide notification dated 14.11.1985 and subsequent notification dated 29.1.1993. The possession of such drugs in of contravention of the NDPS Act and the NDPS Rules would entail criminal prosecution of the offender under Section 21 of the NDPS Act.
(ii) rt The mere fact that the drugs which are covered under 'manufactured drugs' under the NDPS Act and the NDPS Rules and psychotropic substances as mentioned in Schedule of the NDPS Act and Schedule I of the NDPS Rules and are also covered by the D&C Act and the 1945 Rules thereunder would not mean that the offender can be penalised only under the D&C Act and the 1945 Rules and not proceeded against the NDPS Act and the NDPS Rules. In case there is a contravention of the NDPS Act and the NDPS Rules, the stringent provisions of the latter can be resorted to.
(iii) A person possessing manufactured drugs in terms of the NDPS Act and the NDPS Rules is to strictly adhere to the provisions relating to sale, purchase, transport, carrying, storage, distribution etc. in accordance with the provisions of the D&C Act and the 1945 Rules as also the provisions of the Punjab NDPS Rules 2012.
(iv) For transportation of the 'manufactured drugs' a pass or permit in terms of Rule 18 of the Punjab NDPS Rules 2012 is to be possessed.
(v) It is to be ascertained in each case whether the manufactured drug, the contravention of which is alleged by a person falls within the permissible limits of the percentage of dosage provided for the drug by the notification dated 14.11.1985 and subsequent notification dated 29.01.1993 issued in exercise of power conferred by Section 2 (xi) (b) NDPS Act. However, the contravention of manufactured drug or possession of quantity in bulk is to be taken into consideration and not ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 57 per dosage specially when there is a violation of the .
D&C Act and the 1945 Rules that is to say they are sold, purchased, distributed, stored, transported, carried etc. without a valid licence or kept without a valid authorization. The possession of quantity in bulk would be an indication that it is not for medicinal or therapeutic of use but is 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 rt drug or psychotropic substance of that particular drug in dosage forms and not just its pure drug content.
(vi) When a manufactured drugs are sold, purchased, distributed, stored, transported, carried etc. in bulk form, the notification dated 18.11.2009 issued by the Central Government in exercise of powers under Section 2 (viia) and (xxiiia) NDPS Act would apply and the question that these drugs contain an exception in terms of notification dated 14.11.1985 would not apply as the exceptions would apply when the manufactured drugs are for medicinal or therapeutic use.
(vii) The quantity of manufactured drugs is not to be determined on per capsule basis when these are carried without proper licence or authorization. In other words the mere dosage of the manufactured drug in one capsule is not to be considered but the dosage in the number of capsule together is to be considered for determining as to whether the exceptions provided in the notification dated 14.11.1985 declaring the narcotic substance and preparations as mentioned therein to be manufactured drugs.
(viii) It is suggested that the State authorities should get the drugs in respect of which there is a contravention and that are recovered examined by the Chemical Analysts at the earliest and a report provided to the offender at the earliest so that the position can be ascertained as to whether the alleged offender was in possession of permissible quantity of the drug or otherwise. In case ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 58 there is delay this would entitle the offender to at least .
interim bail till the report is finally received.
(ix) In relation to the search and seizure, the provisions of the Code of Criminal Procedure are to be followed. The instruction issued by the NCB should be circulated so these are followed as guidelines. The violation of the of guidelines would not per se entail illegality or an irregularity unless it is shown the same has occasioned a failure of justice or resulted in prejudice. rt
(x) The guidelines laid down and directions issued by the Hon'ble Supreme Court in the case of Thana Singh v.
Central Bureau of Narcotics should be meticulously and strictly followed and steps should be taken to ensure their due compliance.
(xi) For the sale, purchase, storage, carriage, transportation and use etc. of manufactured drugs, the provisions of the NDPS Act, the D&C Act, the 1945 Rules and the Punjab NDPS Rules, 2012 should be strictly adhered to and followed and violation of the same would necessarily entail its consequences including penal consequences."
32. To be fair to the learned counsel for the petitioner, he would vehemently contend that the ratio of the judgment in the aforesaid case is not at all applicable to the facts of the instant case as the Court therein was primarily dealing with the Punjab Narcotic Drugs and Psychotropic Substances Rules, 2012 (for short 'Rules 2012') which had been issued vide notification dated 13.12.2012 in exercise of the powers conferred by Section 78 read with Sections 10 and 71 of the NDPS Act and other powers enabling it in this behalf.
33. Even this contention of the petitioner cannot be accepted for the simple reason that the same is based upon or complete misreading of the judgment (relevant portion whereof has been quoted ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 59 above), which clearly demonstrates that the main thrust of the .
judgment was on the interpretation of the NDPS Act and Rules and Drugs and Cosmetics Act and the Rules and only ancillary findings, that too, wherever necessary were given with respect to the Rules 2012.
of
34. That apart, it is more than settled that the Rules cannot override the Act and once the relevant provisions of the Act are rt interpreted, then the State Rules would hardly be of any avail. The Rules otherwise would only follow the statute.
35. In addition to above, the Rules of 2012 mainly contemplate what is otherwise already provided in the Central Rules, apart from making certain changes making the provisions more stringent after taking into consideration the rampant and wide spread drug abuse and trade in the State of Punjab.
36. Learned counsel for the petitioner would then place reliance upon Rule 52-A which has recently been inserted vide G.S.R. No. 359 (E) dated 5th May, 2015 to contend that the intention of the legislation was to bring codeine phosphate within the purview of NDPS Act only where the concentration of codeine was more than 2.5% in 100 ml of bottle and in case it is found below the said concentration, same would not fall under the said Act.
37. Rule 52A of the Act, reads as under:
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.::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 60
(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.No. Name of the essential Narcotic Drug Quantity of (1) (2) (3)
1. Morphine and .its salts and all preparations 500 Milligrammes containing more than 0.2 per cent of Morphine.
2. Methyl morphine (commonly known as 'Codeine') 2000 Milligrammes rt 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 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 Codein one (commonly known as Oxy- 250 Milligrammes.
codone and Dihydroxycodeinone), its salts (such as Eucodal Boncodal Dinarcon 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 known as 320 Milligrammes.
Hydrocodone), its salts (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.
phenethyl
5. 1-phenethyl-4-N- propionylanilino-piperidine (the Two transdermal international-non-proprietary name of which is patches one each of Fentanyl) and its salts and preparations, 12.5 microgram per admixture, extracts or other substances containing hour and 25 any of these drugs. microgram per hour.
Provided that the Controller of Drugs or any other officer authorised in this behalf by him may by special order authorise, in Form 3B, 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 xceeding 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 ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 61 under the care of the registered medical practitioner in .
accordance with established medical standards and practices. (4) For renewal of the authorisation referred to in the second proviso to sub -rule (3), application shall be made to the Controller of Drugs atleast thirty days before the expiry of the previous authorisation.
of (5) (a) The Controller of Drugs may, by order, prohibit any registered medical practitioner from possessing for use in his practice under sub-rule (3) any essential narcotic drug, where rt such practitioner-
(i) has violated any provision of these rules; or
(ii) has been convicted of any offence under the Act; or
(iii) has, in the opinion of the Controller of Drugs, abused such possession or otherwise been rendered unfit to possess such drug.
(b) When any order is passed under clause (a) of this sub-rule, the registered medical practitioner concerned shall forthwith deliver to the Controller of Drugs the essential narcotic drug then in his possession and the Controller of Drugs shall issue orders for the disposal of such drugs.
(6) The Controller of Drugs may, by a general or special order, authorize any person to possess essential narcotic drug as may be specified in that order.
(7) A recognised medical institution may possess essential narcotic drug in such quantity and in such manner as specified in these rules.
[(8) A manufacturer may possess essential narcotic drug in such quantity as may be specified in the licence issued under rule 36, rule 36-A, or rule 37 of these rules or the licence issued for manufacturing the preparations of essential narcotic drugs under the rules made by the State Government under section 10 of the Act.
Provided that there shall be no limit to the possession of essential narcotic drug by the Government Opium Factories.].
::: Downloaded on - 15/04/2017 20:46:42 :::HCHP 62' .
(9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules."
38. Even this contention is without any substance because it is clear that Rule 52A would apply only to the medical practitioner and of therefore, the drug in his possession is essentially for the use in his practice and as per explanation, it covers only the actual direct rt administration of the drugs to a patient under the care of the registered medical practitioner in accordance with established medical standards and practices and cannot be used to determine the pure drug content and in no manner exempts codeine even on percentage basis from the ambit of manufactured drug as is contended by the petitioner.
39. Having said so and having had a complete re-look on the various provisions of the NDPS Act and Rules as also Drugs and Cosmetic Act and Rules, I find no reason to take a different view to the one taken by me in Om Pal's case and since I have rejected all the contentions as put forth by the petitioner, there is no occasion or reason for referring the matter to a larger Bench.
40. In view of the ratio already laid down by me in Om Pal's case and in view of what has been said above, no case for bail is made out and the petition is accordingly dismissed.
(Tarlok Singh Chauhan) th 8 July, 2016. Judge (GR) ::: Downloaded on - 15/04/2017 20:46:42 :::HCHP