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The following medicines (Codeine based syrups) were recovered from Shop No.09 :-

Serial No. Name of Medicine Quantity
1.

Onerex Cs 30240 Bottles

2. Onerex Cs 42600 Bottles

3. Welcyre 4200 Bottles

4. Plencyre 6480 Bottles

5. CC Kuffs + 24624 Bottles

6. CC-Kuffs + 3888 Bottles Total 112032 Bottles From Shop No.31, following drugs were recovered :-

Serial No. Name of Drug Quantity
1.

Onerex CC cough syrup 2520 Bottles

2. Welcyrex 720 Bottles Total 3240 Bottles Certain documents, like registration certificate, copies of bank pass-book, PAN Card, AADHAR Card, GST Certificate, appointment receipt of passport and ITR were also recovered from the Shop No.31. The Drug Inspector took four bottles of each batch of Codeine based syrup as sample, rest of the recovered medicines were seized and sealed by the N.C.B. Brass seal. After completion of search and seizure of both the shops in presence of independent witnesses and joint team of N.C.B., Police and Drug Inspector, search-cum-seizure memo was prepared on the spot. All the legal formalities were completed by the team without causing any damage to any person or property. Both the shops were locked by the new locks purchased by the N.C.B. team.

Per contra, the learned counsel for the Narcotics Control Bureau has submitted that on a reliable information the team of N.C.B. searched and seized the codeine based cough syrup and prepared its search and seizure memo dated 05.04.2021, which is in accordance with law. The investigation of the offence is continuing. It has been mentioned in the petition that the Firm of petitioners had purchased the codeine based cough syrup by M/s A.R. Pharma, Varanasi through proper bills but during the course of investigation, when N.C.B. team along with Drug Inspector, Varanasi visited the premises of M/s A.R. Pharma on 04.06.2021, it has been found that the said firm did not exist on the ground. On that premises a Chamber of one Advocate was found. The said observations were noted by the Drug Inspector, Varanasi for their own inquiry too. Since the firm M/s A.R. Pharma does not exist on the ground, thus, all codeine phosphate cough syrup bottles claimed to be supplied by the firm M/s A.R. Pharma are illegal.

Learned counsel for N.C.B. further submitted that on further enquiry, the concerned courier company SPOTON LOGISTICS PVT. LTD. VARANASI, has supplied the information that the consignment of medicines never reached at the premises on M/s A.R. Pharma. It was not received by the owner of the M/s A.R. Pharma. The said consignment was directly delivered to one Deepak, at Shop No.09, Second Floor, Gyanmandal Plaza, SaptaSagar, Varanasi. This premises belongs to New Preksha Trading Company. Thus the firm M/s A.R. Pharma illicitly diverted the said consignment from transport courier agency to New Preksha Trading, without proper receiving, stock taking and checking the physical veracity of the said consignment. Thus, a physically non-existing company is getting deliveries of Codeine based cough syrup bottles and directly diverting it to new wholesaler without proper receiving, stock taking and without checking physical veracity of consignment. It is clear illegal act of diversion of codeine containing cough syrup bottles done by M/s A.R. Pharma and New Preksha Trading Company. The receipt and further sale of all codeine phosphate consignments of M/s A.R. Pharma are under investigation. In his statement under Section 67 of NDPS Act, 1985 the proprietor of M/s A.R. Pharma failed to provide all sale, purchase documents of codeine based cough syrup which is supplied to New Preksha Trading Company and Preksha Ayurvedics. He also admitted that he has illegally diverted the consignment of codeine based cough syrup directly to his customers without checking the veracity of consignment. The codeine based cough syrups were sold for other purposes than the therapeutic purposes.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."

In view of the provisions of Section 42 of N.D.P.S. Act, 1985, prima facie, it cannot be said that the team of Narcotic Control Bureau was having no jurisdiction to search and seize the syrups having codeine.

Learned counsel for the petitioners has further submitted that the case of petitioners is squarely covered by the case of Ram Dayal Mathur Vs. Union of India [ MB No. 8953 of 2013, decided by this Court on 03.04.2015, and Ashok Kumar Vs. Union of India (supra) decided by this Court on 15.10.2014, wherein it has been held that the cough syrups having codeine in permissible limit and ratio, the case will be governed by the provisions of the Drugs and Cosmetics Act, 1940 and Rules of 1945 and the provisions of N.D.P.S. Act, 1985 are not applicable. The conclusion in the above case has been mentioned in paragraph 101 of the judgment, which reads as under :-