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Learned counsel for the petitioner submits that though the medicines i.e. Spasmo-Proxyvon capsules, Alprazolam tablets and Parvon Spas tablets have been recovered from the house of the petitioner but simply the recovery of the medicines by itself cannot be a ground for framing charge against the petitioner. He submits that the petitioner is a licensed pharmacist and mere possession of the medicines at his house cannot make the petitioner liable for the charge under the NDPS Act. It has also been submitted that the possession of the tablets is otherwise also not an offence under the Act because the medicines which have been recovered are over the counter drugs. Even if the possession of the said drugs is illegal, then also, the prosecution against the petitioner at best could have been launched for the offence under the Drugs and Cosmetics Act.
The definition of the psychotropic substances has been given in Chapter-I Section 2 (xxiii) of the NDPS Act, which reads as under :-
"psychotropic substance" means 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"
Thus, the psychotropic substance is a substance which has been included in the list of psychotropic substances specified in the Schedule. A perusal of the Schedule, list of psychotropic substances discloses that dextropropoxy phene, which the chief constituent of the capsules Spasmo- Proxyvon and Parvon Spas is not mentioned in the Schedule. However, Alprazolam, which is the constituent of the drug Alprazolam is mentioned at Serial No. 30 of the Schedule. Thus, the Aprazolam tablets definitely fall under the definition of psychotropic substances as given under the Act. However, the two Notifications were issued in the year 1985 being Notification No. S.O. 826(E) and in the year 1993 being Notification No. S.O. 40(E), as per which, the dextropropoxy phene has been brought within the ambit of manufactured narcotic drugs.
Subsequently under the NDPS Act, the Table under sub-clause 7(a) and 23(a) under Section 2 of the Act has been enacted in the year 2001, as per which, the small and commercial quantity of the narcotic and psychotropic substances drugs have been mentioned. Dextropropoxy Phene, which is the constituent of Spasmo-Proxyvon and Parvon Spas drugs, has been mentioned at Serial No.33 of the said Table. As per this Table, 20 gms of dextropropoxy phene is the small quantity and 500 gms is the commercial quantity. Thus, the possession of dextropropoxy phene has also been made punishable under the NDPS Act as per the Table enacted in the year 2001 as being a manufactured narcotic. But the Notification of 1993 adds another rider for bringing the dextropropoxy phene within the ambit of a narcotic drug. Dextropropoxy phene is mentioned at Item No.87 of the said Notification, which reads as under :-
In the opinion of this Court, from the perusal of the Notification referred to above, it becomes clear that before the charge for offence under Section 8/22 of the NDPS Act is framed against a person found in possession of medicinal tablets covered under the Notification of 1993, it has to be shown that the quantity of the prohibited drug in a single dosage unit was in excess of the permissible limits as prescribed under the Notification.
Un-disputedly, as per the seizure memo prepared at the time of the recovery, the tablets Spasmo-Proxyvon and Parvon Spas contained 100 mg and 65 mg of Dextropropoxy Phene respectively. Thus, the psychotropic contents of the (one capsule) single dosage unit of the aforesaid tablets is well within the limits of 135 mg per dosage unit prescribed under the Notification dated 29.01.1993 and therefore, the capsules of Parvon Spas and Spasmo-Proxyvon cannot be said to be infringing the provisions of NDPS Act because the psychotropic substance per capsule is below the prescribed limit of 135 mg. Apparently, in this case, the limits as prescribed under the Notification have not been exceeded in the medicinal tablets so recovered.