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"102. Considering the above noted discussion, relevant provisionsof N.D.P.S. Act and Rules, relevant provisions of D & C Act and Rules, judgments rendered by various courts and documents appended with the petition which have neither been disputed nor controverted referred to hereinabove, this Court concludes as follows:
(i) Even if all the facts and circumstances alleged by the prosecuting agency are admitted to be correct, it cannot be said that the petitioner, who was serving as Territory Sales Manager inM/s Abbott Healthcare Pvt.Ltd. (manufacturer of Phensedyl Cough Syrup), Division at Lucknow, in any way abetted or conspired to commit offence under Section 8 of the N.D.P.S Act as punishable under Section 21 of the said Act. It was the duty of the petitioner to procure orders of Phensedyl Cough Syrup from licenced stockists or distributors and ensure its supply from licenced manufacturer viz; employer of the petitioner.
(ii) Phensedyl Cough Syrup is a Schedule 'H' drug under the Drugs and Cosmetics Act; has been manufactured by M/s Abbott Healthcare Pvt.Ltd, a licenced manufacturer under the D & C Act and Rules; had been stocked by a licenced stockist viz; M/s Simran Pharma, owned by co-accused, at licenced premises.
(iii) Phensedyl Cough Syrup is a therapeutic drug containing 'codeine' within specified limits, as provided under licence of the licenced manufacturer, under Drugs and Cosmetics Act.
(iv) Phensedyl Cough Syrup, as recovered, is covered under exception provided under entry no.35 of Central Government Notification dated 14.11.1985 isued under Section 2 (xi)(b) of the N.D.P.S.Act and, therefore, cannot be construed as a Narcotic Drug or Manufactured Drug, hence, Section 8 of the N.D.P.S.Act would not be attracted.

While delivering the Judgement by this Court in Ashok Kumar''s case decided on 15.10.2014, the judgement of Apex Court delivered in Sanjeev V. Deshpande's case decided on 12.08.2014 was not noticed. Consequently, it has to be seen now whether judgement of Apex court delivered in Sanjeev V. Deshpande, case would altered the legal propositions discussed and decided in Ashok Kumar's case?

In Ashok Kumar's case the Court concluded that Phensedyl cough syrup is covered under item in para 35 of Central Government Notification dated 14.11.1985 issued under section 2(xi)(b) of the NDPS Act. The same cannot be construed as a Narcotic Drug or Manufactured Drug. Section 8 of the N.D.P.S .Act would not be attracted in the case. If no record has been kept by the licensed dealer of sale and purchase of the drugs, it would not be an offence punishable under N.D.P.S. Act as contained in judgement delivered by the Punjab and Haryana High Court. The view expressed in Ashok Kumar's case is based on aforesaid judgements of Punjab and Haryana High Court and judgement in Rajesh Kumar Gupta case delivered by Apex Court. Thus, mere recovery of Phensedyl cough syrup from the license premises would not constitute any office.

It was further held that Phensedyl cough syrup is a therapeutic drug containing ''codeine' within specified limits and the same is under exception provided in entry no. 35 of Central Govt. Notification dated 14.11.1985 issued under sub section 2 (xi) (b) of NDPS, Act, therefore, cannot be termed as a Narcotic Drug or Manufactured Drug, hence the provisions of NDPS Act would not be attracted.

It has been further held that Director General Health Services has issued clarification vide its letter dated 26.10.2005 indicating therein that Phensedyl is a schedule ''H' drug under the D.C.Act and Rules made thereunder. Although it contains ''codeine' but in prescribed quantity, would not fall under the provisions of NDPS Act and Rules. The drug is for sale only on prescription and to ensure that there should be no misuse of it. The authorities are required to ensure strict compliance of the conditions of the licence. Offence which according to the allegation has been committed falls under D.C. Act and is punishable under section 28-A read with section 13 (b) of D.C. Act and not under NDPS Act.