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4. It appears that during investigation, statements of various persons representing, Carrying and Forwarding Agents, Transporters etc. were recorded. Statement of Adil Ali Khan, Area Sales Manager with Abbott Healthcare Pvt. Ltd. working in Trade Management Division at Lucknow was also recorded. Adil Ali Khan disclosed the names of six subordinate Territory Sales Managers working under him, which included the petitioner, who used to take orders of Phensedyl Cough Syrup from various stockists. It was further disclosed by Adil Ali Khan that the petitioner Ashok Kumar did not inform him about the orders and booking of Phensedyl Cough Syrup, rather he used to pass those orders directly to Carrying and Forwarding Agent. Senior Officers were informed, including Zonal Business Manager (Delhi), M/s Abbott Healthcare Pvt. Ltd. Adil Ali Khan, however was directed not to interfere in the supply of Phensedyl Cough Syrup as it depends on the orders from stockists. Adil Ali Khan was further informed that as per directions of the company issued in 2013, a maximum number of 20000 bottles of Phensedyl Cough Syrup per month can be supplied to each stockist.

36. As noted above, the facts are not in dispute, however, are required to be reiterated at the cost of repetition.

37. M/s Simran Pharma, owned by Baljeet Singh, has the licence to sell, stock, exhibit or offer for sale or distribute by wholesale, drugs other than those specified in Schedules C, C(1) and X on its premises. Phensedyl is a 'Schedule H' drug and, therefore, it transpires that M/s Simran Pharma owned by co-accused Baljeet Singh was a licensee to stock Phensedyl Cough syrup. Quantity of bottles that could be stocked is not given in the licence (Annexure-3) and, therefore, the quantity of Phensedyl recovered would not be relevant for consideration of the issue. Perusal of the licence itself indicate that the licence was in vogue on the date of recovery i.e. 26.8.2013.

67. The above noted provisions from the D & C Rules, if considered cumulatively in context of Phensedyl Cough Syrup containing codeine, it transpires that Phensedyl is a Schedule 'H' drug, because Schedule 'H' includes "codeine" as one of the ingredients. Such Schedule 'H' drug (such as Phensedyl Syrup) can be manufactured, distributed, sold, stocked or exhibited etc. only under licence issued for that purpose under Section 18(c). Section 18-B of the D & C Act provides for maintenance of records and furnishing of information by the licensee and the same is required to be furnished to any officer or authority under the D & C Act, if such information is required.

71. Above noted facts and circumstances of the case are required to be considered strictly in context of the relevant provisions of the N.D.P.S.Act, and the relevant provisions of D & C Act and Rules so as to consider whether the petitioner has indulged in commission of offence under N.D.P.S.Act or not. The controversy boils down to the issue whether Phensedyl Cough Syrup recovered in large quantity from licensed premises of a licensed stockist would be considered as a Narcotic Substance.

72. Allegations made in the complaint indicate that the prosecuting agency is prosecuting on the premise that huge quantity of Phensedyl Cough syrup, among other drugs, was recovered in regard to which document/bill was not produced. The question arises whether, in case record is not produced by licensed stockist, would the article/Phensedyl Cough Syrup become a Narcotic Substance, or such licenced stockist would have committed an offence under the D & C Act for not maintaining proper records and not complying with the conditions of licence ?