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The petitioner submits that PHENSEDYL COUGH SYRUP along with other products manufactured by the Company are handed over to the CFA of the Company and the CFA of the Company sells it to various Stockists having Drug License issued by the respective Drug Authorities. The Stockists thereafter sell PHENSEDYL COUGH SYRUP along with other products in the market through sub-stockists or retailers directly and the petitioner has no role whatsoever in the transaction of sale, supply or delivery of PHENSEDYL COUGH SYRUP or other products by the Stockists to its Sub-stockists or Retailers.

In the instant case, the dispute relates to seizure of PHENSEDYL COUGH SYRUP from one M/s Simran Pharma. The drug is sold in the market under two categories i.e. 50 ml and 100 ml quantity. The label affixed on bottles display the details composition including the quantities of various ingredients for preparation of PHENSEDYL COUGH SYRUP. As per label, the SYRUP contains the ingredients, the details of which per 50 ml are as follows:-

1.Codeine Phosphate -10 mg.
2.Chlorophinarmine Maleate -04 mg.

It is submitted that since PHENSEDYL COUGH SYRUP is a Schedule 'H' drug under the Rules of 1945, therefore, the same cannot be sold from the Chemist shop without prescription of a registered medical practitioner, because it contains a very small fraction of Codeine Phosphate but that quantity of Codeine Phosphate does not make PHENSEDYL COUGH SYRUP, a product to be brought within a purview of the NDPS Act of 1985.

It is submitted that the fundamental right guaranteed under Article 21 of the Constitution guaranteed to the petitioner are being infringed by the respondents by his wrongful detention. The respondents have no jurisdiction to proceed against the petitioner under the provisions of the NDPS Act of 1985 and the Rules framed thereunder as PHENSEDYL COUGH SYRUP is a Schedule 'H' drug covered under the provisions of the Act of 1940 and the Rules of 1945.

The caption 'Therapeutic Practice' used in Entry 35 of Notification dated 14.11.1985 under the NDPS Act of 1985 and Rules framed thereunder only relates to amount of doses per unit and not with particular reference to Codeine or Phensedyl. It is also not an allegation that the amount of doses as prescribed for Phensedyl was not in consonance with the prescription of Therapeutic Practice.

Phensedyl Cough Linctus is a Schedule Drug within the meaning of the Act of 1940 and the Rules of 1945 framed thereunder. Thus its manufacture, sale, etc. are regulated only by the said provisions. The prohibition as contained in Rule 37 of the NDPS Rules of 1985 would apply only to such narcotic drugs that are specified in the list published under Section 2 (xi)(b) of the Act of 1985. Thus the prohibition of Rule 37 of the Rules of 1985 is not applicable to those manufactured synthetic drugs that are not listed in the said list.