Allahabad High Court
Ashok Kumar Thru (Brother) Rakesh ... vs Union Of India Thru Ministry Of ... on 15 October, 2014
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
(A.F.R.)
Case :- U/S 482/378/407 No. - 2976 of 2014
Applicant :- Ashok Kumar Thru (Brother) Rakesh Kumar Pawar
Opposite Party :- Union Of India Thru Ministry Of Home New Delhi And Ors.
Counsel for Applicant :- Vikas Singh
Counsel for Opposite Party :- A.S.G,Shikha Sinha
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Hon'ble Ajai Lamba,J.
1. The question posed to this Court is whether Possession of 'Phensedyl Cough Syrup' (containing Codeine, an opium derivative), manufactured by a licenced manufacturer, stocked by a licenced stockist in licenced premises would constitute an offence, punishable under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S.Act) ?
2. The petitioner Ashok Kumar has filed this petition under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") to seek quashing of proceedings of Complaint Case No.20 of 2014 titled "Union of India through Intelligence Officer, Narcotic Control Bureau, Lucknow (for short 'N.C.B.') v. Baljeet Singh and another', under Sections 8,21,25 and 29 of the N.D.P.S.Act. The petition also prays for quashing of order dated 10.3.2014 passed in the abovenoted case by Additional District and Sessions Judge-VIII, Lucknow, by means of which charges have been framed against the petitioner for commission of offence under Sections 8,21 and 29 of the N.D.P.S. Act.
3. Facts giving rise to filing of this petition are that on 26.08.2013, a raid was conducted by a team of officials of Narcotic Control Bureau at the premises of M/s Simran Pharma, UGF No.9, New Medicine Market, Aminabad, Lucknow. Baljeet Singh, the proprietor of the said Firm was found in the premises and led the team to recover large quantity of drugs, including Phensedyl Cough Syrup (total 10950 bottles). Baljeet Singh could not produce bills for purchase of the medicines. Baljeet Singh allegedly disclosed that he used to get Phensedyl Cough Syrup with the help of certain persons/firms. Because shop/godown is located in a crowded area, therefore, the shop of M/s Simran Pharma (unsearched portion) was locked and sealed. Raid was resumed on 27.08.2013 whereupon other drugs were also recovered.
4. It appears that during investigation, statements of various persons representing, Carrying and Forwarding Agents, Transporters etc. were recorded. Statement of Adil Ali Khan, Area Sales Manager with Abbott Healthcare Pvt. Ltd. working in Trade Management Division at Lucknow was also recorded. Adil Ali Khan disclosed the names of six subordinate Territory Sales Managers working under him, which included the petitioner, who used to take orders of Phensedyl Cough Syrup from various stockists. It was further disclosed by Adil Ali Khan that the petitioner Ashok Kumar did not inform him about the orders and booking of Phensedyl Cough Syrup, rather he used to pass those orders directly to Carrying and Forwarding Agent. Senior Officers were informed, including Zonal Business Manager (Delhi), M/s Abbott Healthcare Pvt. Ltd. Adil Ali Khan, however was directed not to interfere in the supply of Phensedyl Cough Syrup as it depends on the orders from stockists. Adil Ali Khan was further informed that as per directions of the company issued in 2013, a maximum number of 20000 bottles of Phensedyl Cough Syrup per month can be supplied to each stockist.
5. It appears that statement of the petitioner, who was serving as Territory Sales Manager, M/s Abbott Healthcare Pvt.Ltd., Management Division at Lucknow was also recorded on 18.09.2013 under Section 67 of the N.D.P.S.Act. Allegedly the petitioner informed that he had been trafficking cough syrup in conspiracy with Baljeet Singh, Proprietor of M/s Simran Pharma and would also supply Phensedyl to other stockists.
6. A perusal of Annexure 13, appended with the petition, indicates that the statement was retracted by the petitioner before the Court on affidavit stating that clothes of the petitioner were removed and under threat of dire consequences, the petitioner was forced to sign a statement.
7. Consequent to the raid, impugned complaint, proceeding as Criminal Misc.Case No.20 of 2014, titled, Union of India through Intelligence Officer NCB Lucknow v. Baljeet Singh and Ashok Kumar was filed. So far as the petitioner is concerned, the petitioner has been charged for commission of offence under Sections 8,21 and 29 of the N.D.P.S.Act, vide impugned order (Annexure 2) dated 10.3.2014.
8. Learned Senior Advocate appearing for the petitioner Shri Sanjeev Puri, assisted by Shri Ratnesh Chandra and Shri Vikas Singh, Advocates, has argued that Phensedyl Cough Syrup is manufactured by Abbott Healthcare Pvt. Ltd., which is a licenced manufacturer vide licence (Annexure-6).
9. M/s Simran Pharama, of whose Proprietor is Baljeet Singh, co-accused, has the licence under the Drugs and Cosmetics Act, 1940 (for short 'D & C Act') to sell, stock, exhibit or offer for sale or distribute by wholesale, drugs, other than those specified in Schedule 'C', 'C(1)' and 'X' on the premises situated at UGF Shop No.9, Meer Jan Lane, Naya gaon East, Lala Ram Narain Market, Aminabad, Lucknow. In this regard reference has been made to Annexure-3. Licence is in force from 2.7.2013 to 1.7.2018. 10,950 bottles of Phensedyl Cough Syrup were recovered from the licenced premises at the address noted in the licence on 26.8.2013. Baljeet Singh led the raiding party to the recovery of 'Phesedyl Cough Syrup' among other drugs. It is the admitted case that the petitioner was not at the site and is not associated with M/s. Simran Pharma.
10. It has been pointed out by Sri Sanjeev Puri, learned Senior Advocate, that Phensedyl Cough Syrup contains Codeine, which is an opium derivative.
11. Attention of the Court has been drawn towards definition of "Manufactured Drug", as provided under Section 2(xi), N.D.P.S. Act. It has been argued that under Section 2(xi)(b), N.D.P.S. Act, a Central Notification dated 14.11.1985, as published in Gazette of India, has been issued. In the said notification (Annexure-5) Codeine per dosage unit has been detailed at Serial No.35 (Annexure-5 at Page 107). In the said provision, it has been provided that if Codeine is compounded with other preparations and is not more than 100 milligrams per dosage unit and such dosage is for therapeutic purpose, it would not be covered under the definition of "Manufactured Drug". Phensedyl Cough Syrup contains Codeine in much less quantity per dosage unit, as compared to the provision made in the notification, referred to above. This also stands established from the licence of the manufacturer (Annexure-6).
12. Learned counsel has drawn attention of the court towards Annexure-7 dated 26.10.2005 issued by Directorate General of Health Services and Annexure-8 issued in March, 2009 wherein a clarification has been given by the highest authority under the D & C Act that a number of cough preparations contain 'Codeine'. Only by virtue of the fact that these preparations contain 'Codeine' and its salts, they do not fall under the provisions of N.D.P.S.Act and Narcotic Drugs and Psychotropic Substances Rules 1985 (for short N.D.P.S.Rules). They fall under Schedule 'H' of the Drugs and Cosmetics Rules 1945 (for short 'D & C Rules') and such drugs are governed by the said Rules.
13. Learned counsel has also drawn attention of the court towards Annexure-14 wherein under the Right to Information Act 2006 it has been clarified that 'Codeine' is a N.D.P.S. substance, but Phensedyl Cough Syrup is a "drug" and included under D & C Act.
14. Learned counsel has also drawn attention of the court towards the definition of "Narcotic Drug", as also the definition of "Psychotropic Substance" to say that Phensedyl Cough Syrup containing less than the prescribed quantity of 'Codeine' per dosage unit would neither come under the definition of "Narcotic Drug" nor under the definition of "Psychotropic Substance", because it is covered under the exception provided under Section 2 (xi)(b) of the N.D.P.S.Act.
15. It has been argued that offence under Section 8 of the N.D.P.S. Act would be attracted only if the petitioner was found to be indulging in a "Narcotic Drug" or "Psychotropic Substance". Even if all the allegations made against the petitioner are accepted to be true and correct, it cannot be deduced that the petitioner has indulged in abetment of committing an offence under Section 8 punishable under Section 21 of the N.D.P.S. Act.
16. For clarificatory sake, learned counsel has drawn attention of the court towards Schedule 'H' appended with the D & C Rules. At serial no.132 of the said schedule, "Codeine" is mentioned. Schedule 'H' has been drawn in context of Rules 65 and 97 of the D & C Rules.
17. Attention of the court has also been drawn towards Section 18 of the D & C Act. The said provisions also provide for prohibition of manufacture and sale of certain drugs and cosmetics. Section 18-B provides for maintenance of records and furnishing of information. Learned counsel has drawn attention of the court towards Section 28-A of the D & C Act, which provides for penalty for not keeping documents etc. and for non-disclosure of information.
18. Concluding the arguments, Sri Puri has addressed the court to say that Phensedyl Cough Syrup has been recovered from a licenced stockist from licenced premises. The cough syrup is used for therapeutic purposes and has been manufactured by a licenced manufacturer. Recovery has not been effected from the petitioner. At best, the Stockist can be penalised for keeping the drug without required documentation and accordingly be punished for violations of provisions of Section 18 of the D & C Act punishable under Section 28A of the said Act. Argument is that even if a large quantity of Schedule 'H' drug is recovered, it would not constitute Narcotic Substance.
19. It has been asserted that if the argument of the respondent is accepted, every licenced manufacturer and stockist, who is dealing with drugs containing 'Codeine', would be liable to be proceeded against under the N.D.P.S. Act.
20. Learned counsel has relied on judgments rendered by the Punjab and Haryana High Court reported in 1996 Cr.L.J. 3329, Amrik Singh v. State of Punjab; 1998 Cr.L.J. 1460 titled 'Rajeev Kumar v. State of Punjab'; and 1997 Cr.L.J. 3104 titled 'Deep Kumar v. State of Punjab'.
21. Learned counsel has pointed out that although judgment rendered by the Punjab and Haryana High Court would not be a binding precedent on this court, however, judgments would have persuasive value, particularly for the reason that the judgments have been rendered after considering all the relevant provisions of the N.D.P.S. Act and D & C Act, in identical circumstances, in regard to Phensedyl Cough Syrup. In this regard a reference has been made to 2008 (14) SCC 283 (para 23), Pradip J Mehta v. Commissioner of Income Tax, Ahmadabad.
22. Learned counsel has also relied on a judgment rendered by the Hon'ble Supreme Court of India reported in 2007(1) SCC 355 (Paras 22 to 28) titled 'State of Uttaranchal v. Rajesh Kumar Gupta' to say that if drugs recovered do not find place in Schedule 'I' appended to the N.D.P.S. Rules, Section 8 of the N.D.P.S. Act would have no application.
23. Learned counsel has argued that Gauhati High Court in Md.Sahab Uddin and Another v. State of Assam (Bail Application No.885 and 886 of 2012 decided on 25.5.2012) while considering the issue of grant of bail has considered the judgments rendered by the Punjab and Haryana High Court in Deep Kumar's case (supra) and Rajeev Kumar's case (supra). The cases have not been distinguished. Bail application of Sahab Uddin was dismissed while considering that the petitioners were found carrying seized drugs in a clandestine manner, concealed among household articles, through National Highway Crossing without valid permit or authorization. It was not shown that the drugs were for medical use.
24. It has been pointed out that the said petitioners approached the Hon'ble Supreme Court of India in Criminal Appeal No.1602 of 2012, S.L.P. (Crl.) No.5503 of 2012 decided on 5.10.2012. It was held by the Hon'ble Supreme Court of India that the two judgments rendered by the Punjab and Haryana High Court and referred to in judgment rendered by the Gauhati High Court, abovementioned, viz. in Deep Kumar's case (supra) and Rajeev Kumar's case (supra) were distinguishable, as in those cases persons held valid licences and were dealing with pharmaceutical products in the course of regular business transaction.
25. Learned counsel has argued that by virtue of the said judgment the Hon'ble Supreme Court has indicated approval to the judgments rendered by the Punjab and Haryana High Court.
26. It has been argued that the judgment of the Hon'ble Supreme Court of India would per se not be law on the issue for the reason that facts and circumstances were considered only for the purpose of grant or denial of bail. However the judgment can be considered for limited purposes. An order passed in bail jurisdiction would have no bearing on the merits of the case. In this regard reference has been made 2005 (5) SCC 294, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another (Para 46).
27. Learned counsel appearing for respondents Ms.Shikha Sinha, Advocate, has heavily relied on judgment passed by Hon'ble Supreme Court of India in Md. Sahab Uddin's case (supra). Learned counsel has also relied on Annexure CA-1, attached with counter affidavit, which is dated 24.1.2013, and was issued in reference to Md. Sahab Uddin's case (supra).
28. In annexure CA-1 it has been stated that "the Supreme Court's order is clear that where Phensedyl and such other preparations which contain Codeine or Similar intoxicant are found, in circumstances which clearly lead to the conclusion that the Phensedyl/cough syrup is being transported/stored/sold for consumption not as a therapeutic drug but as intoxicant, then the N.D.P.S. Act shall apply." With similar content, Annexure CA-2 was issued, on which also reliance has been placed.
29. Learned counsel has also argued that the petitioner had filed a petition for habeas corpus, bearing Writ Petition No.455 (H/C) of 2013, Ashok Kumar through his next friend vs. Union of India and others, which was dismissed vide judgment dated 1.7.2014. It has been argued that the judgment of this Court should be considered as law on the issue as all the relevant legal provisions have been considered therein.
30. Learned counsel has drawn attention of the Court towards Section 80 of the N.D.P.S. Act, to plead that provisions of N.D.P.S. Act are in addition to, and not in derogation to D & C Act. It has been argued on behalf of the respondents that Section 8(c) read with Section 29 of the N.D.P.S. Act would be attracted in this case because the petitioner has abetted in commission of offence of possession of Narcotic Drugs.
31. Learned counsel has pointed out that the condition of licence granted to Baljeet Singh, co-accused, has been violated by not displaying the licence at the premises and, therefore, the recovered substance is required to be considered as a narcotic substance. Statement of the petitioner was recorded under Section 67 of the N.D.P.S. Act, which implicates the petitioner. It has been argued that if quantity of codeine in all the bottles recovered from the possession of the co-accused is taken into account, the quantity of codeine would be commercial in nature and, therefore, N.D.P.S.Act has been invoked for the right reasons. It has been contended that an offence under the N.D.P.S. Act is a serious offence affecting the public at large and, therefore, no benefit be granted to the petitioner.
32. Learned counsel appearing for respondents, however, has not disputed that M/s Simran Pharma, owned by co-accused Baljeet Singh, is a licensed stockist. The licence is valid from 2nd July, 2013 till 1st July, 2018 and, therefore, was in vogue on the date of recovery. It has also not been disputed that Phensedyl is a drug manufactured by a licensed manuracturer. It has not been disputed that the petitioner was working as Territory Sales Manager in the Trade Management Department under Operation Division of M/s Abbott Healthcare Pvt.Ltd. and his duty was to procure orders for supply of various pharmaceutical products, including Phensedyl Cough Syrup from the stockists and forward to Carrying and Forwarding Agents (C & F) of the Company.
33. Even on specific query of the Court, learned counsel has not been able to cite any judgment of a High Court or the Hon'ble Supreme Court of India in which the issue raised by way of this petition has been dealt with, which would favour the respondents. Learned counsel has also not referred to any judgment of the Hon'ble Supreme Court of India wherein judgments rendered by the Punjab and Haryana High Court in Amrik Singh's case (supra) Rajeev Kumar's case (supra) or Deep Kumar's case (supra) have been overruled. Reliance has, however, been placed by learned counsel for the respondents on decision dated 9.1.2008 rendered in Kanhaiyalal v. Union of India, Appeal No.788 of 2005, in support of the plea that statement of an accused recorded under Section 67 of the N.D.P.S. Act would be admissible and can be used against the petitioner.
34. This Court considering the seriousness of the issue, had appointed Shri R.K.Dwivedi and Shri Amit Jaiswal Advocates as counsel amicus curiae who have addressed the Court to contend that judgment rendered by the Hon'ble Supreme Court of India in Md.Sahab Uddin's case (supra) is applicable to the facts of the present case. Cough Syrup addicts are being generated. Prime cause for such addiction is its easy availability and, therefore, no relief be allowed to the petitioner.
35. I have considered the contentions of learned counsel for petitioner, learned counsel for respondents and learned amicus curaie in context of the provisions of law and judgments referred to by learned counsel for parties.
36. As noted above, the facts are not in dispute, however, are required to be reiterated at the cost of repetition.
37. M/s Simran Pharma, owned by Baljeet Singh, has the licence to sell, stock, exhibit or offer for sale or distribute by wholesale, drugs other than those specified in Schedules C, C(1) and X on its premises. Phensedyl is a 'Schedule H' drug and, therefore, it transpires that M/s Simran Pharma owned by co-accused Baljeet Singh was a licensee to stock Phensedyl Cough syrup. Quantity of bottles that could be stocked is not given in the licence (Annexure-3) and, therefore, the quantity of Phensedyl recovered would not be relevant for consideration of the issue. Perusal of the licence itself indicate that the licence was in vogue on the date of recovery i.e. 26.8.2013.
38. It is further the admitted case that Phensedyl Cough Syrup has been manufactured by M/s Abbott Health Care Pvt.Ltd. under licence Annexure No.6. Relevant entries in licence, Annexure 6, at serial no.13 read as under:
Sl.No.
Name of Products
Composition
PHENSEDYL NEW COUGH LINCTUS
(Chlorpheniramine Maleate & Codeine Phosphate Cough Linctus)
Each 5 ml. Contains:
Codeine Phosphate IP 10mg
(Chlorpheniramine Maleate IP 4 mg
in a flavoured syrupy base Colour Caramel IP)
39. It has also not been disputed by the respondents that the prescription dosage unit of Phensedyl Cough Syrup is 5 ml. and each unit contained Codeine Phosphate IP 10 mg, as above provided in the licence of the manufacturer.
40. So as to consider the issue involved in this case the Scheme of the N.D.P.S.Act and the D & C Act, in relevant context is required to be seen.
41. Section 2 of N.D.P.S. Act essentially provides for three kinds of offending substances viz; "Manufactured Drug", "Narcotic Drug" and "Psychotropic Substance".
42. "Manufactured Drug" is defined under Section 2(xi) and reads as under :
"(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug,
but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;" (emphasis supplied by me)
43. "Narcotic Drug" is defined under Section 2(xiv) and reads as under:
"Narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods"
44. "Psychotropic Substance" has been defined under Section 2(xxiii) and 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."
45. Reference also needs to be made to Section 2(xvi)(c), which defines 'Opium Derivative', which reads as under :-
Section 2. Definitions. - In this Act, unless the context otherwise requires,--
x x x x x x
(xvi) "Opium derivative" means--
x x x x x x
(c)"Phenanthrene alkaloids, namely, morphine, codeine, thebaine
and their salts" (emphasis supplied)
46. From the above it transpires that licensed drug 'Phensedyl Cough Syrup' manufactured by M/s Abbott Health Care Pvt.Ltd. contains 'Codeine' which is an opium derivative.
47. Central Notification Dated 14.11.1985 and published in Gazette of India has been issued under Section 2(xi)(b) of N.D.P.S.Act wherein "Manufactured Drugs" have been mentioned. Relevant portion of notification, Annexure-5, issued under N.D.P.S.Act reads as under:
"S.O.826(E), dated 14th November, 1985.-- In exercise of the powers conferred by sub-clause (b) of clause (xi) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declare the following narcotic substance and preparation to the (be) manufactured
drugs, namely:
x x x x x x x x x x x x x x x x x x x x x x x x x x
x x x x x x x x x x x x x x x x x x x x x x x x x x
(35) Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice." (emphasis supplied by me)
48. The above noted provision made in the notification indicates that if a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would not be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S.Act.
49. If the facts of the present case are applied, Phensedyl contains 10 mg of Codeine per dosage unit as is evident from the above extracted licence, Annexure No.6, granted in favour of the licenced manufacturer M/s Abbott Healthcare Pvt.Ltd.
50. It needs to be highlighted that 'narcotic drug' as defined under Section 2(xiv) includes all "manufactured drugs".
51. Under the Notification issued under Section 2(xi)(b) dated 14.11.1985 (Serial No.35) issued by the Central Government in Official Gazette, extracted above, a dilution or prepration with specified limit of Codeine per dosage unit cannot be considered to be a 'manufacured drug'. It thus follows that if provisions of Section 2(xiv), and 2(xi)(b) are considered in context of notification dated 14.11.1985, it has to be concluded that 'Phensedyl Cough Syrup', per se would not be a "Narcotic drug" or "Manufactured Drug."
52. It appears that there was an apprehension that on account of presence of Codeine in drug like Phensedyl, the compound would be treated as a Narcotic Substance. It appears that so as to clarify the issue, Directorate General of Health Services addressed a memo to all the State Drugs Contollers dated 26.10.2005 in which the following was clarified :
"As you are aware there are number of Cough preparations like Corex of M/s Prizer Limited, Mumbai, Phensedyl of M/s. Nicholas Piramal India Limited Mumbai, Codokuff of M/s. German Remedies, Codeine Linctus of M/s. Zydus Alidac etc. moving in inter state commerce. These preparations contain among other drugs Codeine Phosphate 10mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and it salts they do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule H of the Drugs & Cosmetics Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS act and Rules 1985 however these formulations are prescriptions drugs and are to be dispensed on the prescription of a registered Medical Practitioners only. Further you may be already aware that under notification number S.O.826 (E) dated 14th Nov, 1985 under the Narcotic Drugs and Phychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcoti drug to the extent permitted . In respect of Codeine under entry no.35 it is stated that Codeine and Ethyl Morphine and their salts including Dionine all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and contianing not more than 100 milligrammes of the drug per dosages unit and with a concentration of not more than 2.5 percent in-undivided preparations and which have been established in therapeutic practice."
53. The position was reiterated vide communication issued in March, 2009 (Annexure-8).
54. Perusal of above extracted portion of the memo indicates that it has been clarified by the highest authority under the D & C Act, in context of notification dated 14.11.1985, portion whereof has been extracted above, that preparations containing Codeine Phosphate 10 mg per dosage unit as one of the ingredients would not fall under the provisions of N.D.P.S. Act and N.D.P.S. Rules, but they fall under Schedule 'H' of the D & C Rules and are governed by the said rules. These formulations are prescription drugs and are to be dispensed on the prescription of a registered medical practitioner only.
55. It further appears that so as to clarify the situation, an application was made under the Right To Information Act to the Food and Drugs Administration, Maharashtra State, wherein it was also specified that codeine is a Narcotic Substance but Phensedyl Cough Syrup is a drug under D & C Act. In this regard reference may be made to Annexure-14.
56. It is not disputed that recovery has been effected from licensed premises of M/s Simran Pharma and the petitioner is not associated with M/s Simran Pharma, rather is working as Territory Sales Manager in the Trade Management Department of M/s. Abbott Healthcare Pvt.Ltd. There is no allegation of involvement of M/s Abbott Healthcare Pvt.Ltd.in commission of alleged offence.
57. Allegation against the petitioner is mainly contained in para-49 of the complaint. It has been alleged that the petitioner with other known and unknown persons entered into a criminal conspiracy and 'abetted each other to purchase and sell Phensedyl Cough Syrup containing Codeine Phosphate - a Narcotic Drug under N.D.P.S.Act, without proper bills and documents and the accused has pressurized various stockists to sell Phensedyl Cough Syrup in huge quantity to various parties and has helped Accused no.1 to purchase and sell it without bills and the accused thereby committed the offence.'
58. It is required to be noted that petitioner has been charged with commission of offence of abetting and criminal conspiracy (Section 29) in commission of offence under Section 8 of N.D.P.S.Act. Substantive offence under the circumstances would be under Section 8, punishable under Section 21 of the said Act.
59. Section 8 (c) of the N.D.P.S.Act would be attracted in case a person produces, manufactures, possesses, sells, purchases, transports or consumes any Narcotic Drug or Psychotropic Substance. Section 8(c) of the Act reads as under :
Section 8. Prohibition of certain operations.--No person shall--
(a) x x x x x x x x
(b) x xx x x x x x
(c) "produce, manufacture, possess, sell, purchase, transport, wharehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,
except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorisation:"
60. Case of the petitioner, as noted above, is that the petitioner has not been found abetting commission of offence involving possession of Narcotic Drug. Rather Phensedyl Cough Syrup is a Schedule 'H' drug defined under D & C Rules. Phensedyl contains "Codeine", which only in isolation would be a Narcotic Substance. In this regard prvosions of D & C Act need to be considered.
61. Schedule 'H' has been provided under Rules 65 and 97 of the D & C Rules and reflects certain chemicals/substances. At entry no.132 of Schedule 'H', Codeine is reflected.
62. Under the provisions of D & C Act any drug containing "Codeine" or other chemicals/substances reflected in schedule 'H', are required to be regulated. Section 18 (c ) of the D & C Act provides as under:
"Prohibition of manufacture and sale or certain drugs and cosmetics. -
From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf-
(a) x x x x x x x x x x x
(b) x x x x x x x x x x x
(c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter."
(emphasis supplied by me)
63. Section 18-B of the D & C Act provides for maintenance of records and furnishing of information. The provisions of Section 18-B reads as under :
"Maintenance of records and furnishing of information.--
Every person holding a licence under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this Act such information as is required by such officer or authority for carrying out the purposes of this Act."
64. Section 26-A of the D & C Act gives power to the Central Government to regulate, restrict or prohibit manufacture of any drug or cosmetic in public interest. Provisions of Section 26-A read as under:
"Power of Central Government to regulate, restrict or prohibit manufacture, etc., of drug and cosmetic in public interest.-- Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, regulate, restrict or prohibit the manufacture, sale or distribution of such drug or cosmetic.
65. Section 28-A and 28-B of the D & C Act provide for penalty for not keeping documents etc. Provisions of Section 28-A and 28-B of the Act read as under :
"Section 28-A. Penalty for not keeping documents, etc., and for non-disclosure of information.--
Whoever without reasonable cause or excuse, contravenes the provisions of section 18-B shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.
Section 28-B. Penalty for manufacture, etc., of drugs or cosmetics in contravention of section 26-A.--
Whoever himself or by any other person on his behalf manufactures or sells or distributes any drug or cosmetic in contravention of the provisions of any notification issued under section 26A, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to five thousand rupees."
66. Rule 65 and Rule 97 of the D & C Rules detail the conditions of licence for manufacture and labelling of drugs shown in various schedules appended with the Drugs and Consmetics Rules. For ready reference Rule 65 (3)(1)(f) and Rule 97 (1) (b) and (c) would be relevant to be considered for adjudicating the issue involved in this case and read as under :
Rule 65. Condition of licences.-- Licences in Forms 20, 20- A, 20-B, 20-F, 20-G, 21 and 21-B shall be subject to the conditions stated therein and to the following general conditions -
(1) x x x x x x x
(2) x x x x x x x
"Rule 65 (3)(1) The supply of any drug other than those specified in Schedule X on a prescription of a registered medical practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in this regard shall be entered on the prescription. The following particulars shall be entered in the register -
(a) x x x x x x
(b) x x x x x x
(c) x x x x x x
(d) x x x x x x
(e) x x x x x x
(f)- in the case of a drug specified in (Schedule C or Schedule H) the name of manufacturer of the drug, the batch number and the date of expiry of potency, if any."
Rule 97 (1) The container of a medicine for internal use shall--
(a) x x x x x x x x x x
(b) if it contains a substance specified in Schedule H, be labelled with the symbol Rx and conspicuously displayed on the left top corner of the label and be also labelled with the following words:
''Schedule H drug- Warning : To be sold by retail on the prescription of a Registered Medical Practitioner only',
(c) if it contains a substance specified in Schedule H, and comes within the purview of the 2[Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)] be labelled with the symbol NRx which shall be in red and conspicuously displayed on the left top corner of the label, and be also labelled with the following words:
''Schedule H drug -Warning: To be sold by retail on the prescription of a Registered Medical Practitioner only';"
67. The above noted provisions from the D & C Rules, if considered cumulatively in context of Phensedyl Cough Syrup containing codeine, it transpires that Phensedyl is a Schedule 'H' drug, because Schedule 'H' includes "codeine" as one of the ingredients. Such Schedule 'H' drug (such as Phensedyl Syrup) can be manufactured, distributed, sold, stocked or exhibited etc. only under licence issued for that purpose under Section 18(c). Section 18-B of the D & C Act provides for maintenance of records and furnishing of information by the licensee and the same is required to be furnished to any officer or authority under the D & C Act, if such information is required.
68. In case the provisions in regard to maintenance of record (Section 18-B) are not complied with, the licensee can be penalised under Section 28-A of the D & C Act.
69. Section 28-B of the D & C Act provides that in case a person manufactures, sells or distributes any drug or cosmetic in contravention of any notification issued under Section 26-A, he would be liable to be punished.
70. Facts and circusmtances noted above clearly establish, on the basis of undisputed documents referred to in extenso herein above, that Phensedyl Cough Syrup is a Schedule 'H' drug. Records for stocking, selling or distributing Phensedyl Cough Syrup are required to be maintained. In case the said records are not produced and information as required by an officer discharging any function under the D & C Act is not provided to him, the said licensee is liable to be penalised under the D & C Act.
71. Above noted facts and circumstances of the case are required to be considered strictly in context of the relevant provisions of the N.D.P.S.Act, and the relevant provisions of D & C Act and Rules so as to consider whether the petitioner has indulged in commission of offence under N.D.P.S.Act or not. The controversy boils down to the issue whether Phensedyl Cough Syrup recovered in large quantity from licensed premises of a licensed stockist would be considered as a Narcotic Substance.
72. Allegations made in the complaint indicate that the prosecuting agency is prosecuting on the premise that huge quantity of Phensedyl Cough syrup, among other drugs, was recovered in regard to which document/bill was not produced. The question arises whether, in case record is not produced by licensed stockist, would the article/Phensedyl Cough Syrup become a Narcotic Substance, or such licenced stockist would have committed an offence under the D & C Act for not maintaining proper records and not complying with the conditions of licence ?
73. Phensedyl contains Codeine, a Narcotic Substance, however, within the prescribed limits, as per condition of licence (Annexure 6) granted to the manufacturer. The notification issued under Section 2 (xi)(b) of the N.D.P.S.Act, dated 14.11.1985 itself permits use of Codeine in manufacture of the drug, however upto 100mg per dosage unit. It is not the case of the respondents that the bottles recovered from the possession of the co-accused violated the said provisions of the notification issued under the N.D.P.S.Act.
74. Considering various aspects of this case in context of N.D.P.S.Act and D & C Act, this Court is of the considered opinion that Phensedyl Cough Syrup would not constitute a Narcotic Drug, because it is not Codeine (a narcotic drug). Codeine is only one of the ingredients, which is required for therapeutic purposes. Codeine contained in Phensedyl syrup is within the prescribed limits and percentage, as prescribed under Central Government Notification issued under the N.D.P.S.Act.
75. It cannot be disputed that Phensedyl is a Schedule 'H' drug, under the D & C Act. Conditions under the D & C Act are required to be complied with by the licenced stockist. For contravention of the said provisions, surely provisions of N.D.P.S.Act cannot be invoked to conclude that the recovered article has become a Narcotic Drug. It would be an offence punishable under the D & C Act, under the relevant provisions which are extracted above.
76. In drawing a conclusion to the above effect, this Court is also persuaded by the judgments rendered in Amrik Singh's case (supra), Deep Kumar's case (supra) and Rajiv Kumar's case (supra).
77. From Amrik Singh's case (supra) reference needs to be made to paras 2 to 13. The portion reads as under:
"2. According to the First Information Report in question, the petitioner Amrik Singh was found to be ,in possession of 35 bottles of Phensedyl intoxicating medicine of 125 ml each. A sample of 25 ml. was drawn from each of the said bottle The sample bottles and the remaining bottles were sealed with the seal of TS and were seized by preparing a seizure memo. On the basis of a ruqa sent by Sub-Inspector, a case under Section 21 of the Act has been registered. The sample parcels were sent to the office of the Forensic Science Laboratory and the report dated 16-5-1995 has been received. As per report each sample was found to contain Codeine Phosphate 9.5 mg/5 ml.
3. It has been stated in the petition that the petitioner is the holder of Drug Licence No. 674-OB and 457-B to carry on his business of a retail chemist under the name and style of M/ Guru Nanak Medicose, Mudki, District Ferozepur, that the drug Phensedyl is a cough syrup being manufactured by M/ Rhone Poulenc Ltd., Bombay, a drug manufacturing company earlier known as May & Baker under their valid Licence No. 345 that the possession and sale of the said drug is no offence under Section 21 of the Act since the same does not fall within the ambit of the term "manufactured drug".
4. On a notice given to the respondent State, it has been stated in reply that the said syrup contains 9.5 mg. per 5 ml. Codeine Phosphate i.e. per bottle of the syrup contains 237.5 mg. of Codeine which is sufficient for an individual for intoxication purposes and the same is generally used by the addicts; and that the petitioner could not produce purchase bill/cash memo and the licence required for the sale of such item. It has been further stated that offence under Section 21 of the Act has been made out and the F.I.R. and the proceedings cannot be quashed.
5. I have heard the learned counsel for the parties and have gone through the record.
6. It has not been disputed at the Bar that the petitioner is carrying on his business as a retail chemist under the name and style of M/ Guru Nanak Medicose, Mudki having a valid Drug Licence No. 674- OB and 451-B (Annexure P. 1). It is also not disputed that Phensedyl is a cough linctus which is established in therapeutic practice. According to the report of the Forensic Science Laboratory, each sample was found to contain Codeine Phosphate in the ratio of 9.5 mg/5 ml. which is equivalent to one dosage.
7. Section 21 of the Act provides for punishment for contravention in relation to manufactured drugs and preparation The term "manufactured drug" has been defined by Section 2(xi) to mean inter alia a narcotic substance or preparation which the Central Government may by notification in the Official Gazette declared to be a manufactured drug. In exercise of the powers conferred by Sub-clause (b) of Clause (xi) of Section 2 of the Act, the Central Government declared certain narcotic substances and preparations mentioned in the Notification No. 0.826(E), dated 14-11-1985. The substance/preparation mentioned at Serial No. 35 of this Notification reads as under :-
"Methyl Morphine (commonly known as 'Codeine') and Ethyl Morphine and their salts (including (Dionine), all dilutions and preparations, except those which are compounded with one or more
other ingredients and containing not more than 100 milligrammes of the drug/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."
From a bare perusal of the above description, a preparation containing not more than 100 mg. of the drug Codeine/ per dosage unit and with concentration of not more than 2.5 per cent, in undivided preparation and which has been established in therapeutic practice, is excepted from the ambit of S. 21 of the Act.
8. In the case in hand each sample was found to contain Codeine Phosphate in the proportion of 9.5 mg. per 5 ml., i.e. per dosage unit, which is permissible in view of the exception contained at Serial No. 3.5 of the aforesaid notification. Further, the Codeine Phosphate concentration comes to 1.9 per cent, in undivided preparation as per report of the Forensic Science Laboratory, copy of which has been placed by the State on the record. It has not been disputed at the bar that the drug 'Phensedyl' has been established in therapeutic practice for the treatment of dry cough. Therefore, the preparation in question falls within the ambit of the exception as contained in the item at Serial No. 35 of the Notification.
9. The learned State counsel has argued that the preparation in question is being widely used for intoxicating purposes by students, teenagers and other addicts; that the petitioner was indulging in the sale of such drugs without prescription of the doctor to the addicts and he could not produce the purchase bill/ cash memo and the licence required for the sale of such item, and as such the petitioner is liable under S. 21 of the Act.
10. The aforesaid argument of the learned State counsel is misconceived. If the petitioner sells any drug to a person in contravention of licence granted to him or that he fails to produce the bill/cash memo or the licence for the sale of such item, he can be proceeded against under the provisions of the Drugs and Cosmetic Act, 1940 by the Drug Inspector in accordance with the provisions of the said Act. Section 21 of the Act in hand is not attracted for such violation or contravention.
11. As regards the plea that the preparation in question is being widely used for intoxication purposes, this fact in itself is not enough for the prosecution of the petitioner. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all - kinds of intoxicating substance It may be stated that all penal statutes ought to construe strictly, that is to say, that the Court must say that the thing charged as an offence is within the plain meaning of the words used and must not strain the words so as to bring it within mischief of the statute. Maxwell on interpretation of Statutes, 12th Edition at page 239, says, the strict construction of penal statutes seems to manifest itself in four ways, in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
12. It may be stated that Section 21 provides for punishment for contravention in relation to certain manufactured drugs and preparation Phensedyl being excepted under Item No. 35 of the Notification reproduced above is out of the reach of this section. The mere apprehension of the prosecution that this drug, which is meant for the treatment of dry cough is also being misused by drug addicts, is not enough in the eye of law to bring the same within the mischief of Section 21 of the Act. Therefore, even all the allegations contained in the First Information Report in question are assumed to be correct, no offence under Section 21 of the Act is made out and the First Information Report in question is liable to be quashed.
13. For the reasons mentioned above, this petition is allowed. First Information Report No. 48, dated 154-1995 registered at Police Station, Ghal Khurad under Sections 21/61/85 of the Act and the subsequent proceedings in pursuance thereof, if any, are hereby quashed. The seized goods in this case if not already released, are directed to bereturned to the petitioner forthwith."
78. From the perusal of above judgment it transpires that the case was filed under Section 482 Cr.P.C. for quashing the FIR lodged against a person, who was holder of a licence under D & C Act. The petitioner therein was in possession of 35 bottles of Phensedyl and could not produce the relevant record at the time of raid. The Court considered the amount of Codeine Phosphate per dosage unit and held that at best it would be an offence under the D & C Act and it cannot be considered to be a Narcotic Substance to be tried under the N.D.P.S. Act.
79. Contention of the counsel for the State in regard to impact of society has also been considered. In that regard it has been held that this fact in itself is not enough for prosecution of the petitioner.
80. In Deep Kumar's case (supra) also, Phensedyl and other drugs were recovered. Relevant paragraphs 7,8,11,16 and 17 are extracted below :
"7......The question for decision is as to whether any of the above drugs or substances fall within the definition of "manufactured drug" or "psychotropic substance" made punishable under the Narcotic Act. If any of these drugs or substances does not fall within the ambit of the said two expressions, or is excepted by the Act or any rule framed thereunder or any notification or order issued thereunder, no prosecution can be launched therefore under the Narcotic Act. It may be clarified that if there is any breach or violation of any provision of the Drugs Act or the Rules made thereunder, a police officer has got no power to seize any such drug or injection, nor he has got any power to register a case and to investigate the same. It is only a Drug Inspector, as defined in the said Act, who can inspect the premises, seize the drugs and to initiate prosecution by filing a complaint. (Relevant portion)
"8. Section 21 of the Narcotic Act provides for punishment for contravention in relation to manufactured drugs and preparations. The term "manufactured drug" has been defined by Section 2(xi) to mean inter alia a narcotic substance or preparation which the Central Government may by notification in the official Gazette declare to be a manufactured drug. In exercise of the powers conferred by Sub-clause (b) of Clause (xi) of Section 2 of the Act, the Central Government has declared certain narcotic substances and preparations mentioned in the Notification No. S.O. 826 (E) dated 14-11 -1985, to be manufactured drugs. The substance/preparation mentioned at Sr. No. 35 of this Notification reads as under-
"Methly morphine (commonly known as Codeine) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations, except those which are compounded with one or more ingredients and containing not more than 100 miligrams of the in undivided preparations and which have been established in therapeutic practice."
From a bare perusal of the above description, a preparation containing not more than 100 mg. of drug Codeine/per dosage unit and with concentration of not more than 2.5 per cent in undivided preparation and which has been established in therapeutic practice, it is excepted from the ambit of Section 21 of the Act.
11. As regards parcles Nos. 3, 5 and 10, the same contained Capapose, each capsule containing 6 mg. of Diazepam, Diazepam tablets, each containing 5 mg. of Diazepam and Cavisoma tablets, each containing 6 mg. of Diazepam respectively. Parcel No. 18 was found to contain Fortwin injections, each containing 32 mg. of pentazocinc. The substances Diazepam and pentazocine do not fall in Schedule 1 annexed to the Narcotic Drugs and Psychotropic Substances Rules, 1985. In view of Rules 64 to 66, manufacturing, possession, sale, purchase, consumption or use of any of these substances are governed by the Drugs Act and the Rules made thereunder. The substances Diazepam and Pantazocinearc contained in Schedule 'H' annexed to the 'Drugs and Cosmetics Rules, 1945' framed under the Drugs Act. It has not been disputed during arguments at the Bar that the petitioners possess a valid Drug Licence for the storage, sale and purchase etc. of the various drugs including the said substances. Therefore, the substances contained in these parcels are not covered by the Narcotic Act and the petitioners cannot be prosecuted for the possession thereof in view of the Drug Licence held by them.
16. As a result of the above discussion, I hold that admitting all the allegations contained in the first information report to be correct, no offence under Section 21 or 22 of the Narcotic Act or the Rules framed thereunder is made out against the petitioners. If the petitioners have contravened any provisions of the Drugs Act or the Rules framed thereunder, it is for the Drugs Inspector to initiate the action against the petitioners in accordance with the provisions of that Act.
17. As a result, this petition is allowed. First Information Report No. 5 dated 6-1-1994, registered at Police Station, Moga. for an offence under Section 21 of the Narcotic Act is hereby quashed."
81. In this case also, recovery of a large number of drugs was effected. The petitioner, however, possessed a valid drug licence for storage, sale and purchase etc. and, therefore, it was held that the petitioner could not be prosecuted under the N.D.P.S.Act.
82. In Rajeev Kumar's case (supra) also number of drugs were recovered, including Phensedyl. The following has been considered and held in paras 6,7,8,11,15,19,20 and 21 of the judgment :
"6. This petition has been opposed by the respondent Urging that drugs recovered from the possession of the petitioner falls within the mischief of Section 22 of the Provisions of Act of 1985 and therefore, offence thereunder is made out. At the time of raid, petitioner failed to produce valid licence and the original bills relating to the said items. Said items were examined by the District Drugs Inspector who vide report No. 304/96 Annexure R/1 reported that items Nos. 1 to 3 are psychotropic substances and fall within the mischief of the Act and Chemists having valid licence and valid purchase till are exempted under the provisions of Act of 1985. Items 1 to 3 are covered under the psychotropic substances whereas items Nos. 4 and 5 contains desctrophemee which is a Narcotic" drug and items Nos. 7 and 8 contained Codeine Phosphate which is also a narcotics but both of these drugs are exempted if they are in combination.
7. It was submitted by learned Counsel for the petitioner that none of the drugs alleged to have been seized from the possession of the petitioner is a narcotic drug or psychotropic substance as defined in the Act of 1985. Section 2(xiv) defines narcotic drugs as the coca leaf, cannabis (hemp), opium, popy straw and includes all manufactured drugs, Opium is defined in Section 2, Sub-clause (xv) as meaning (a) the coagulated juice of the Opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the Opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine.
8. "Psychotropic substance" is defined in Section 2(xxiii) as meaning "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". "Manufactured drug" is defined in Section 2(xi) as meaning "(a) all Coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance of preparation which the Central Govt. may, having regard to the available information as to its nature or to a decision, if any, under any International convention, by notification in the Official Gazette, declare to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Govt. may, having regard to the available information as to its nature or to a decision, if any, under International convention, by notification, in the Official Gazette* declare not to be a manufactured drug.
""Preparation" in relation to a narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture in whatever physical state, containing one or more such drugs or substances."
11. Now the question that will arise is "whether the drugs said to have been recovered from the possession of the petitioner do or do not answer the definition of narcotic drug or psychotropic substance and if they answer the definition of manufactured drug, whether they are excepted in view of Notification No. S.O. 826(E) dated 14-11-1985 issued by the Central Government?
15. It is clear from perusal of this description that a preparation containing not more than 100 miligrams of drug/Codeine/per dosage unit and with concentration of not more than 2.5% in undivided preparation and preparations which have been established in therapeutic practice.
19. Phensedyl liquid contained Codeine Sulphate within the permissible limits, hence it falls within the excepted category.
20. As regards the plea that the preparation in question is being widely used for intoxication purposes, this fact in itself is not enough for the prosecution of the petitioner. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all kinds of intoxicating substances. It may be stated that all penal statutes ought to be construed strictly, that is to say, that the Court must say that the thing charged as an offence is within the plain meaning of the words used and must not strain the words so as to bring it within the mischief of the statute. Maxwell on Interpretation of Statutes, 12th Edition at page 239 says, the strict construction of penal statutes seems to manifest itself in four ways in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
21. For the reasons given above, none of the drugs alleged to have been seized from the possession of the petitioner falls within the mischief of "Narcotic Drugs and Psychotropic Substance" as defined in the Act. They are "drugs or medicines" as defined in the Drugs and Cosmetics Act, 1940. If at all there is contravention by the petitioner that may 6e of the provisions of Drugs and Cosmetics Act, 1940 for which complaint lies by the Drugs Inspector to the Court and not FIR and not prosecution by the police. So, this Criminal Misc. Petition is allowed and FIR No. 59 dated 18-7-1996 of Police Station, Sirhind under Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and consequential proceedings having arisen therefrom, are quashed."
83. In Rajeev Kumar's case (supra), a portion of which are extracted above, the Court has considered whether Phensedyl syrup would be Narcotic Drug or not. It has been held that because the quantity of codeine was found to be within prescribed limits and the accused had a licence under the D & C Act, it cannot be held that offence under N.D.P.S.Act had been committed.
84. Learned counsel for the petitioner and learned counsel for respondents, both have relied on the judgment rendered by Hon'ble Supreme Court of India in the case of Md.Sahab Uddin (supra). Hon'ble Supreme Court of India was considering the judgment rendered by the Gauhati High Court in an application for bail.
85. The facts of the case are however distinguishable in so much as Md. Sahab Uddin and others were found in possession of drugs, including phensedyl, which were concealed with household articles in a truck. The driver of the vehicle did not have any valid document in support of carrying the said contraband substances. The articles were seized and petitioners were put in jail. Petitioners applied for bail. Learned counsel for petitioners relied on the judgments of Punjab and Haryana High Court in Deep Kumar's case (supra) and Rajeev Kumar's case (supra). The two judgments were distinguished by the Gauhati High Court on the ground that the petitioners were found carrying the seized drugs in a clandestine manner concealing amongst household articles, without valid permit whereas in the cited cases from the Punjab and Haryana High Court, the petitioners hold valid drug licence and were authorised stockists. The relevant portion of the judgment (paras 8 and 35) rendered by the Gauhati High Court distinguishing the judgments of the Punjab and Haryana High Court, reads as under :
"8. In view of the above, it is submitted that as the seized phensedyl and Recodex contain less than 10 mg of codeine phosphate, per dose i.e. 5 ml, the arrest and the detention of the petitioners, under the NDPS Act is unlawful and as such, they are entitled to be released, on bail. In support of his contention, learned counsel has relied on the decisions held in the case of Deep Kumar & Ors. Vs.State of Punjab, reported in 1997 Cri.LJ 3104 and Rajeev Kumar Vs.State of Punjab, reported in 1998 Cri.LJ 1460.
35. In the cases of Deep Kumar & Ors. (supra) and Rajeev Kumar (supra), the possessors were carrying, on business of whole sale chemist under valid drug licence and they were authorized stockists of company, dealing with whole sale medicines, having huge stock to be supplied to all the retailers for further sale to consumer. In the said cases, the court came to the findings that the seized drugs were found to be possessed for medical purpose.
But in our present cases, the petitioners were found carrying the seized drugs in a clandestine manner, concealing amongst house hold articles, through the National Highway, crossing inter-State boundaries, without any valid permit, protection or authorization etc. There is nothing, on record, to show that the seized drugs were carried for the purpose of medical use. Therefore, decisions rendered in the above referred cases, relied upon by the learned counsel, appearing for the petitioners, are not applicable in our present case."
(emphasis supplied by me)
86. Order passed by the Gauhati High Court was upheld by the Hon'ble Supreme Court. In regard to the judgments of Punjab and Haryana High Court, it has been said in para-16 that the cases cited [viz; Deep Kumar's case (supra) and Rajeev Kumar's case (supra)], relate to the perons who had valid licence and in the course of their regular business transaction they were dealing with drugs which contained prescribed permitted content of narcotic substance. Paras 16 and 17 of the judgment rendered by Hon'ble Supreme Court of India when extracted would read as under:
"16. When we refer to the decisions relied upon by the Learned Counsel for the appellants, we find that none of the facts relating to those decisions are parallel to the facts of the present case. Those are all cases which were related to the persons who had valid licenses and in the course of their regular business transaction when they were dealing with the pharmaceutical products which contained the prescribed permitted content of narcotic substance and when they were proceeded against for violations, the relief came to be granted in their case. We do not, therefore, find any scope to apply any of the ratios of those decisions to the facts of this case.
17. We do not find any merit in this appeal, The appeal fails and the same is dismissed. We, however, make it clear that whatever stated in this order is only for the purpose of dealing with the appellant's application for grant of bail and we have not stated anything on the merits of the allegations levelled against the appellants." (emphasis supplied by me)
87. From the above it is evident that the Hon'ble Supreme Court of India distinguished the judgments of Punjab and Haryana High Court on facts while noticing that drugs were in possession of licenced persons.
88. Reference to judgment rendered by Hon'ble Supreme Court of India in Rajesh Kumar Gupta's case (supra) would also be relevant. Hon'ble Supreme Court of India in the said case was considering issue of grant of bail to the accused in a case under N.D.P.S.Act. On perusal of the judgment it is apparent that Uttaranchal High Court allowed the application for bail. The State of Uttaranchal went up in appeal before Hon'ble Supreme Court of India. Appeal has been dismissed vide the judgment rendered in Rajesh Kumar Gupta's case (supra).
89. Facts of the case are that the accused was Ayurvedacharya and operates clinics. Advertisements were allegedly issued in various newspapers claiming that medicines used by the accused were prepared from herbal plants collected from the banks of Ganges and by application thereof patients suffering from epilepsy would be cured. The case of the State, however, was that the accused has been using unlabelled tablets containing psychotropic substances making unsuspecting patients addicted to the drugs. The premises of the accused were raided. Heavy quantity of certain drugs was recovered.
90. Plea taken on behalf of the accused was that drugs allegedly seized from the clinic were Schedule 'H' drug as envisaged under D & C Rules and the same having been used for medicinal purposes and being not the drugs provided for in the rules framed under N.D.P.S.Act, prima facie, no offence can be said to have been committed under the N.D.P.S.Act. While dismissing the appeal the following has been held by Hon'ble Supreme Court of India in Paras 22 to 28 :
"22. It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Rules. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlordiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in the Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder.
23. In view of the fact that all the drugs, Item Nos. 1,2,3,4,6 & 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Rules indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes".
24. The exceptions contained in Section 8 of the 1985 Act must be judged on the touchstone of :
(i) whether drugs are used for medicinal purposes.
(ii) whether they come within the purview of the regulatory provisions contained in Chapters VI and VII of the 1985 Rules.
25. Chapter VII-A of the 1985 Rules which was introduced by a notification dated 25.6.1997 with effect from 27.6.1997 provides for special provisions regarding manufacture, possession, transport, import-export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes.
26. It therefore, permits use of narcotic drugs and psychotropic substances for the purposes mentioned therein. Rule 67-A does not abrogate the provisions of Rule 53 or Rule 64 provided for in Chapters VI and VII of the 1985 Rules. They are in addition to the said provisions. It, however, contains some more restrictions. We are only concerned with Clause (b) of Rule 67-A, in terms whereof the records concerning the acquisition of the substance and the details of their use in Form 7 of those Rules are to be mentioned.
27. Violation of Clause (c) of Rule 67-A does not appear to have been alleged against Respondent. It was, however, stated at the Bar that Respondent has complied with the said provisions and, in fact, along with his bail application requisite documents have been furnished. Rule 67-A expressly permits use of certain drugs for limited medical requirements of a foreigner. It, however, appears that the sentence contained in clause (b) of Rule 67-A is not complete.
28. Section 37 of the 1985 Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes."
91. While concluding, in Para-36 of the judgment the Hon'ble Supreme Court has observed that Section 37 of the N.D.P.S.Act would prima facie have no application in view of the exception contained in Section 8 of the said Act read with the Rules. In Para 38 it has been provided that the accused had been charged with grave offence. It was, therefore, all the more necessary to apply the principles of law strictly.
92. Taking a cue from the above extracted portion of the judgment in context of the present case, it is observed that the drug/substance at issue is not included under Schedule I appended to the N.D.P.S. Rules and, therefore, provisions of Section 8 of the N.D.P.S.Act would have no application. When the above noted observations of the Hon'ble Supreme Court are considered in context of Phensedyl Syrup containing codeine, opinion of this Court is re-enforced because extent of codeine used in Phensedyl Syrup is well within the prescribed limit, prescribed under Notification dated 14.11.1985 (Annexure 5), issued under Section 2(xi)(b) of the N.D.P.S.Act.
93. Although the above noted two judgments rendered in Md.Sahab Uddin's case (supra) and Rajesh Kumar Gupta's case (supra) rendered by Hon'ble Supreme Court of India are in bail jurisdiction and, therefore, cannot strictly be said to be laying down the law on the issue involved in this case [vide Ranjitsing Brahmajeetsing Sharma' case (supra)(Para-46)]. However, this Court can take a cue from the observations made by the Hon'ble Supreme Court of India. The discussion/reference and consideration of relevant provisions from the N.D.P.S.Act and N.D.P.S. Rules in Rajesh Kumar Gupta's case (supra) is in detail and, therefore, the said judgment cannot be ignored entirely to say that it is not required to be referred.
94. This Court is of the opinion that the Hon'ble Supreme Court of India has distinguished the Punjab and Haryana High Court judgments in Md.Sahab Uddin's case (supra). The judgments rendered by the Punjab and Haryana High Court are in consideration of similar, rather identical facts as the present case. The Hon'ble Supreme Court of India, therefore, by implication has not negated the law laid down by the Punjab and Haryana High Court in the case of Deep Kumar (supra) and Rajeev Kumar (supra).
95. Learned counsel for the respondents has relied on Annexure CA-1, dated 24.1.2013, issued by Director General, Narcotic Control Bureau, New Delhi. The said letter/memo has been issued in context of judgment of the Hon'ble Supreme Court of India rendered in Md. Sahab Uddin's case (supra). On similar grounds CA-2 has been issued by Deputy Director General (Ops), Narcotic Control Bureau. The said memos are neither notifications issued in context of N.D.P.S.Act nor under the D & C Act or Rules and, therefore, have no force in law so as to persuade this Court to hold that Phensedyl Cough Syrup is a norcotic drug, when stocked by a licenced stockist.
96. The contention of learned counsel for respondents that judgment dated 1.7.2014 in writ petition nos. 455 (H/C) of 2013 (Ashok Kumar and another v. Union of India and others) is binding law, wherein the petitioner sought issuance of a writ in the nature of habeas corpus is concerned, this Court is of the considered opinion that the judgment cannot be considered as law declaring that Phensedyl Cough Syrup recovered from the premises of co-accused would be sufficient to invoke penal provisions of N.D.P.S.Act against the petitioner.
97. The Writ Court, firstly was considering whether the petitioners had been kept in illegal confinement or not. Secondly, the Court has noted in the judgment that parties have raised disputed questions of fact and law, which cannot be gone into in exercise of powers in writ jurisdiction. Thirdly, the petitioners had already filed an application for bail, therefore, it was held that instead of pursuing the writ petition with prayer for issuance of writ in the nature of habeas corpus, "it would be appropriate for the petitioners to raise all the arguments taken before the writ court in regular criminal proceedings, be that a trial, or application for quashment of impugned proceedings under Section 482 Cr.P.C., or application for regular bail, or revision against the framing of charges."
98. Both the habeas corpus petitions were dismissed with specific clarification that the observations made in the judgment shall not be treated as observations of the Court on merit, lest it may cause prejudice to the case of either of the parties.
99. The contention of learned counsel for respondents in relation to statement of the petitioner suffered under Section 67 of the N.D.P.S.Act cannot be accepted for the reason, firstly because the statement was retracted; and secondly and more importently because this Court concludes that Phensedyl Cough Syrup had been stocked by co-accused under licence in licenced premises and, therefore, cannot be considered to be a Narcotic Drug or a Manufactured Drug under the N.D.P.S.Act.
100. The contention of learned counsel for the respondents that under Section 80 of the N.D.P.S. Act it has been provided that provisions of N.D.P.S. Act are in addition, and not in derogation to D & C Act, therefore, the Phensedyl Cough Syrup containing 'Codeine' be considered a 'Narcotic Drug', also cannot be accepted because Central Government Notification dated 14.11.1985 issued under Section 2 (xi)(b) of the N.D.P.S. Act itself envisages use of 'Codeine' in a preparation made for therapeutic pratice. Such manufacturer has been permitted to manufacture Phensedyl Cough Syrup under the provisions of D & C Act and Rules vide licence, Annexure-6. The stockist has been given licence to stock Phensedyl vide licence, Annexure-3.
101. So far as the contention of learned counsel for the respondents and learned counsel amicus curiae to the effect that drugs such as Phensedyl are being misused by youngsters is concerned, suffice it to say that merely on such social considerations, interpretation of law cannot be changed. All penal statutes are required to be deciphered and applied strictly. It is for the legislature to provide relevant safeguards so as to ensure that the drugs under the D & C Act are used only for therapeutic purposes. In the present case no substantive material has been shown to indicate that the drug was being sold to addicts.
102. Considering the above noted discussion, relevant provisions of 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 in M/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.
(v) The Directorate General of Health Services has issued clarification dated 26.10.2005 to specify that Phensedyl is a Schedule 'H' drug under the D & C Act and Rules and although it contains 'codeine' in limited prescribed quantity, would not fall under the provisions of N.D.P.S.Act and Rules.
(vi) Considering the Narcotic contents and nature of Schedule 'H' drug, the manufacture and distribution of the drug has been regulated under the D & C Act and Rules. For that purpose the provisions require the manufacturer, stockist, distributor and seller etc. to obtain licence, which is issued on compliance of certain conditions. If it is ensured that these conditions are adhered and complied with and the Schedule 'H' drug is sold only on prescription, there would be no misuse of the drug. The authorities therefore are required to ensure strict compliance of the conditions of licence so as to prevent its misuse.
In the case in hand, if at all, an offence has been committed, it would be under the D & C Act, committed by the stockist viz; the co-accused, for violation of the provisions of Section 18-B punishable under Section 28-A of the D & C Act and/or other provisions.
(vii) This Court is also persuaded in concluding as above by judgments rendered by the Punjab and Haryana High Court in 1996 Cr.L.J. 3329, Amrik Singh v. State of Punjab; 1998 Cr.L.J. 1460 titled 'Rajeev Kumar v. State of Punjab'; 1997 Cr.L.J. 3104 titled 'Deep Kumar v. State of Punjab' and judgment rendered by the Hon'ble Supreme Court of India in Md. Sahab Uddin and another v. State of Assam, decided on 5.10.2012 in Criminal Appeal No.1602 of 2012, S.L.P.(Crl.) No.5503 of 2012 read with judgment of Gauhati High Court in Md.Sahab Uddin and another v. State of Assam (Bail Application no.885 and 886 of 2012, decided on 25.5.2012). Likewise the judgment rendered by the Hon'ble Supreme Court of India in Rajesh Kumar Gupta's case (supra) favours the legal proposition propounded on behalf of the petitioner.
(viii) This Court has also taken into account that N.D.P.S.Act and Drugs and Cosmetics Act, both are Central Legislations. N.D.P.S. Act specifically provides exceptions whereunder a 'narcotic drug' (codeine) can be used for medicinal/therapeutic purposes. Under the provisions of the Act, Central Notification dated 14.11.1985, whereunder prescribed quantity of codeine has been allowed to be included, per dosage unit, has been issued. Admittedly, Phensedyl Cough Syrup contains 'codeine' within the prescribed quantity. Thus, in the considered opinion of this Court Phensedyl Cough Syrup falls within the exception provided under the N.D.P.S.Act and, therefore, its possession with licenced stockists would not invite the penalties under N.D.P.S. Act. Phensedyl Cough Syrup, in the facts and circumstances of this case is required to be considered as a drug under the Drugs and Cosmetics Act.
103. In view of the above the question posed to the Court is answered in negative.
104. This Court is of the considered opinion that even if all the allegations made against the petitioner are accepted, no offence under Section 8/21 read with Section 29 of the N.D.P.S.Act, is made out.
105. Petition is accordingly allowed.
106. The proceedings of Complaint Case No.20 of 2014 titled 'Union of India through Intelligence Officer, Narcotic Control Bureau, Lucknow v. Baljeet Singh and another', under Sections 8,21,25 and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985, and order dated 10.3.2014 (Annexure-2), in regard to the petitioner only, are hereby quashed.
15.10.2014) (Ajai Lamba, J.)
Irfan
