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2. Shorn of details, the prosecution case may be stated thus:

On 25-11-2014, Inspector Manish Mishra of P.S. Kotwali, Sidhi, received information from an informer that accused persons Vidya Charan and Ajay are sitting in a Tata Super Loading Vehicle No.MP-55-GA-2257 with Psychotropic drugs for sale for being used for the purpose of intoxication. After completing necessary formalities, they reached the place mentioned by the informer near Gala Mandi Sidhi and raided the vehicle. Accused persons Vidya Charan Shukla and Ajay Rawat were sitting in the vehicle with 32 bottles of Cosome LCD syrup and 38 bottles of Codex syrup in an old white bag. Each bottle contained 100 milliliters of syrup. It was recorded on the label of each bottle that each 5 milliliters of cough syrup contained 10 milligrams of Codeine Phosphate. As such, each bottle of syrup contained 2 milligrams of Codeine Phosphate and 70 bottles of cough syrup contained 14 grams of psychotropic substance Codeine Phosphate.

4. Applicant Shiv Kumar Gupta has challenged the framing of charge mainly on the ground that both the syrups namely Codex and Cosome are manufactured drugs established in therapeutic practice. Notification No. S.O. 826(E), dated 14th November, 1985, issued by the Central Government in exercise of powers conferred upon it by sub-clause (b) of clause (xi) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), declares certain narcotics substances to be manufactured drugs. Entry No.35 inter alia relates to Methyl Morphine (commonly known as 'Codeine') and Ethyl Morphine and their salts (including Dionine). The concentration in which the Codeine Phosphate was found in Codex and Cosome Cough Syrups, is exempted by Entry No. 35 from the category of manufactured drugs. Thus, it has been argued that neither syrup Codex nor syrup Cosome fall within the purview of manufactured drugs. Therefore, no charge is made out against the applicant under section 8 read with either 21 or 22 of the Act.

10. From the perusal of the aforesaid entry in the notification, it is clear that a preparations containing not more than 100 milligrams of drug codeine phosphate per dosage unit and with concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice, is exempted from the application of section 21 of the Act.

11. Reverting back to the facts of the case, this Court finds that as per prosecution, the label affixed to each bottle declared that it contains Codeine Phosphate in the ratio of 10 milligrams per 5 milliliters of syrup. 5 milliliters quantity of syrup is equivalent to one dosage unit. As such, both syrups contained Codeine Phosphate in proportion of 10 milligrams per 5 m.ls., that is to say 10 milligrams per dosage unit, which is permissible in view of Entry No. 35 of the Notification. In other words, it also does not fall within the ambit of manufactured drug.

12. Now the Court shall consider as to what was the concentration of Codeine Phosphate in undivided preparations? At the outset let it be mentioned that there is no report of any Forensic Science Laboratory on record. However, in the case of Amrik Singh vs. State of Punjab, 1996 CRI. L. J. 3329, the Punjab and Haryana High Court was faced with similar situation. In that case, cough syrup Phensedyle was seized from the possession of the accused in 125 m.l. bottles. Each bottle contained codeine phosphate in proportion of 9.5 m.gs. per 5 m.ls. The sample was sent to Forensic Science Laboratory and as per the report of FSL the concentration of Codeine Phosphate in undivided preparations came to 1.9%. In the instant case, syrup Codex and Cosome contained Codeine Phosphate in proportion of 10 m.gs. per 5 m.ls., which would surely be less than 2.5% in concentration in undivided preparations.