Nisha Bajpai vs U.O.I. Thru. Narcotics Control ...
2021 Latest Caselaw 10131 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 

 
Case :- MISC. BENCH No. - 17540 of 2021
 

 
Petitioner :- Nisha Bajpai
 
Respondent :- U.O.I. Thru. Narcotics Control Bureau Lko. & Anr.
 
Counsel for Petitioner :- Amit Chaudhary,Vivek Vidyarthi
 
Counsel for Respondent :- Akhilesh Kumar Awasthi
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

(1) The petitioner, Nisha Bajpai, who is claimed to be a trader dealing with medicine under a drug license, is seeking the following reliefs in the instant writ petition :-

"1. The Impugned notice emanating from the respondent be quashed as relating to the complaint case no NCB/LZU/CR No. 04/2021 22/7/21 pending adjudication in the court of learned judge Jaunpur.

2. To pass any such order which this Hon'ble Court deems fit in the circumstances of the case in favour of the Petitioner."

(2) Brief facts of the case are that on the basis of a specific information on 17.01.2021, a team consisting of Narcotics Control Bureau and Special Task Force, Varanasi had affected a seizure of 61000 bottles/52.350 Kgs. of Phensedyle Syrup at Jaunpur, in the presence of two independent witnesses, when the said illicitly diverted consignment of Phensedyle Syrup, which was kept in an unauthorized/illegal Godown located in the ground floor of house of Kunj Bihari Yadav, Faizabad Road near Public Inter College, Shahganj, Jaunpur (U.P.), was being loaded in a truck bearing no. UP 53 BT 7304. One truck bearing registration no. RJ 40 GA 0142 was also seized which was to be used for the illicit trafficking of Phensedyl Syrup. After completion of all legal formalities of search and seizure, the Investigating Officer conducted spot interrogation and arrested six accused persons on the spot for their conscious involvement in the trafficking of this illicit diverted consignment of Phensedyl Syrup under Section 8/22/29 of the NDPS Act, 1985. Subsequently, a case was registered as C.R. No. 04 of 2021 dated 07.01.2021. After due investigation, the Narcotics Control Bureau has filed a case in the Court of Special Judge NDPS Court at Jaunpur, Uttar Pradesh on 15.07.2021, praying therein to summon the accused persons and try them according to law and punish them under Section 8/21 (c)/22/25/29/60 (3) of the NDPS Act and further seized contraband and conveyances be directed to be confiscated in favour of the Union of India.

(3) The investigation in respect of other known or unknown persons, associated medical/travel agencies, which are either under enquiry or surfaced during the course of further investigation, are proposed to be kept open so that their role in the instant case may be properly established and supplementary complaint, if any, may be filed against them. In the aforesaid backdrops, the impugned notice/summon under Section 67 of the NDPS Act, 1985 has been issued against the petitioner, who is dealing in the medicines under a drug license in the name and style of Sri Balaji Distributor, requiring the petitioner to appear before the Narcotic Control Bureau and further on the said date, without any intimation and if the case is being postponed for any date, then, without taking information about the date of postponement, he cannot leave the office.

(4) Not satisfied with the aforesaid impugned notice/summon dated 27.07.2021, the petitioner has filed the instant writ petition.

(5) Heard Sri Vivek Vidyarthi and Sri Amit Chaudhary, learned Counsel for the petitioner and Sri Akhilesh Kumar Awasthi, learned Counsel for the respondents.

(6) Challenging the impugned notice/summon dated 22.07.2021, it has been argued by the learned Counsel for the petitioner that the petitioner is the licensee of medicine. He submits that the matter pertains to the arrest of six members of a gang and seizure of 61000 bottles of Phensedyle syrup, which were allegedly been procured illicitly and diverted. During the course of investigation, the names of various agencies and persons came to light and a complaint case, bearing No. NCB/LZU/CR No. 04 of 2021 :Union of India through Intelligence Officer, Narcotics Control Bureau, Lucknow Zone Unit Vs. Chandan Kumar and others, was filed by the Narcotics Control Bureau before the Special Judge, NDPS Court at Jaunpur, Uttar Pradesh. In pursuance of the said issue, the impugned notice/summon dated 22.07.2021 under Section 67 Narcotic Drugs & Psychotropic Substances Act, 1985 has been issued against the petitioner, which is arbitrary as it ominously and against all tenets of propriety and law threatens the petitioner to be in custody till the sweet will of the respondent.

(7) Elaborating his submission, learned Counsel for the petitioner that the drug ''Phensedyl' in its formulation has chemical name ''Codeine', which if exceeds 2.5% in a formulation comes within the purview of Narcotic Drugs & Psychotropic Substances Act, 1985 but quantities below the said percentage in a formulation comes out of the purview of the Narcotic Drugs & Psychotropic Substances Act, 1985, which is depicted from the Circular dated 26.10.2005 being circulated by the manufacturer company of ''Phensedyl' (Annexure 4). Moreover, the medicine ''Phensedyl' does not bear the sign ''Nrx', which is mandatory for any narcotic drug to depict on its lable. He argued that on 17.01.2021, vide letter dated 09.02.2021, the Zonal Director, Narcotic Control Bureau reported to the Commissioner, FSDA regarding seizure of 61000 bottles of Phensedyl syrup. He argued that in response to the letter dated 22.01.2021 requiring distributor's details dealing with Phensedyl cough syrup batch nos. PHB-0414, PHB 0415, PHB 0233, PHB0453 and PHB-0440, the Abbott Healthcare Private Ltd., vide letter dated 15.02.2021, provided the requisite list of distributors dealing with Phensdyl cough syrup.

(8) Learned Counsel for the petitioner has further argued that Narcotics Control Bureau has allegedly recovered 4800 bottles of Phensedyl cough syrup pertaining to batch no. PHB0414 and in this reference, it has incarcerated two dealers, namely, Pawan Singh of Palak Pharma and Girjesh Kumar of Mata Vaishno Pharmaceuticals, Lucknow. He argued that since 4800 bottles of batch PHB0414 have already been accounted, hence the Narcotics Control Bureau does not need to unravel those quantities of Phensedyl syrup out of the batch PHB0414 which were not recovered nor are a subject matter of on-going enquiry/investigation. Thus, the complaint case initiated by the Narcotic Control Bureau at Jaunpur against the petitioner is in total contravention to the established procedure of law, hence the impugned notice/summon be quashed.

(9) In support of his submission, learned Counsel for the petitioner has placed reliance upon the judgment of this Court passed by the learned Single Judge in Case under Sections 482/378/307 No. 2976 of 2014 : Ashok Kumar Through (Brother) Rakesh Kumar Pawar Vs. Union of India, decided on 15.10.2014.

(10) Per contra, the learned counsel for the Narcotics Control Bureau/respondents has submitted that on a reliable information the team of N.C.B. searched and seized the Phensedyl cough syrup and prepared its search and seizure memo dated 17.01.2021, which is in accordance with law. The investigation of the offence is continuing.

(11) Learned counsel has further argued that the Narcotics Control Bureau has bona fide jurisdiction of search, seizure, inquiry and investigation under the provisions of N.D.P.S. Act, 1985 which is a Special Act, enacted by the Parliament with the objective to control and regulate the illicit trafficking relating to Narcotic Drugs and Psychotropic Substances. The Drugs and Cosmetics Act, 1940 deals with drugs which are intended to be used for therapeutic or medical usage, on the other hand, the N.D.P.S. Act, 1985 intend to curb and penalize the usage of drugs which are used for intoxication or for getting a stimulant effect. Any diversion and illegal sale, purchase, possession of drugs intended for therapeutic or medical usage must attract provisions of N.D.P.S. Act, 1985. Under the provisions of Section 67 of N.D.P.S. Act,1985 the authorized officers may call for information from any person to satisfy himself whether there has been any contravention of the provisions of the N.D.P.S. Act, 1985. The investigation of the case is being conducted in fair and proper manner and and with clean hands. The provisions of Section 80 of N.D.P.S. Act, 1985 and Section 2 of Drugs and Cosmetics Act give power to proceed and investigate the case under the N.D.P.S. Act,1985 also. Thus, the provisions of N.D.P.S. Act,1985 can be applied along with the provisions of Drugs and Cosmetics Act, 1940.

(12) Learned counsel has further submitted that the writ petition filed by the petitioner is misconceived and against the provisions of law. Mere, notice/summon under Section 67 of N.D.P.S. Act, 1985, cannot be challenged under writ jurisdiction of the Court, as this is in the process of investigation.

(13) Learned Counsel for the respondent has also submitted that this Court has adjudicated the identical issue in Misc. Bench No. 11190 of 2021 : Hemant Kumar Saini Vs. Union of India and others and connected Misc. Bench No. 11396 of 2021: Yogita Nand Yadav Vs. Union of India and others and vide common order dated 30.07.2021, this Court dismissed the writ petitions, hence the present writ petition is also liable to be dismissed.

(14) We have considered the arguments advanced by learned counsel for the parties and perused the material brought on record.

(15) Section 67 of the NDPS Act, 1985 authorizes any officer referred to in Section 42, who is empowered in that behalf by the Central Government or a State Government, (i) to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder; (ii) to require any person to produce or deliver any document or thing useful or relevant to the enquiry, and (iii) to examine any person acquainted with the facts and circumstances of the case, during the course of enquiry in connection with contravention of any provision of the Act. Thus, the officer empowered in law can exercise powers under Section 67 of the NDPS Act only during the course of any enquiry in connection with the contravention of any provisions of the NDPS Act. In other words, the condition precedent for invocation of power under Section 67 of the NDPS Act is pendency of an enquiry in connection with contravention of any provision of the Act

(16) A complaint petition has already been filed and registered as NCB/LZU/CR No. 04/2021 in connection with seizure dated 17.01.2021. The investigation against other known or unknown persons associated medical/travel agencies is said to be pending. Therefore, the impugned notice/summon has been issued against the petitioner in exercise of powers conferred under Section 67 of the NDPS Act, 1985.

(17) It transpires from the record that the case of petitioner is at the stage of collection of evidence/enquiry/investigation and the notice/summon under Section 67 has been issued to petitioner only for the satisfaction of investigating officer that whether there has been any contravention of the provisions of the N.D.P.S. Act,1985 or Rule or Order or not. It is quite possible that in the enquiry if the evidence comes before the Investigating Officer that the firm of petitioner has not violated the Rules and Regulations and orders of N.D.P.S. Act, 1985 as well as Drugs and Cosmetics Act, 1940, the enquiry/ Investigating Officer of Narcotics Control Bureau may submit its report accordingly and the petitioner may be exonerated from prosecution. The wording mentioned in Section 67 of N.D.P.S. Act, 1985, makes it clear that notice is merely for enquiry/interrogation. Thus, it appears that a writ petition against such a kind of notice should not ordinarily be entertained. It is pre-mature in nature because the notice by itself does not give a rise of cause of action, as no adverse order has yet been passed. It is quite possible that if the transaction is found in accordance with law, the authorities may be satisfied by the enquiry and in the event of adverse decision, it will certainly be open to accused persons/petitioner to assail the same in appropriate proceedings under the law. Undoubtedly in certain conditions, when there is a question of infringement of fundamental right or on the point of lack of jurisdiction, such notice/summon can be challenged, but it is not in the present case. At this stage of proceeding, it is not permissible in law to quash the notice/summon which has been issued to the petitioner for the purpose of enquiry/investigation, to satisfy that whether there has been any contravention of the provision of the Act, Rule or order of relevant enactment.

(18) Having examined the facts and circumstances of the case, we are of the view that the issue involved in the instant writ petition has already been set at rest by this Court vide judgment and order dated 30.07.2021 passed in Misc. Bench No. 11190 of 2021 : Hemant Kumar Saini Vs. Union of India and others and connected Misc. Bench No. 11396 of 2021: Yogita Nand Yadav Vs. Union of India and others, hence the instant writ petition is liable to be dismissed on this count alone.

(19) The judgment cited by the learned Counsel for the petitioner is distinguishable from the facts and circumstances of the instant case.

(20) In view of the aforesaid, we are not inclined to quash the impugned notice/summon issued against petitioner.

(21) The writ petition is, accordingly, dismissed.

(22) There is no order as to costs.

.

(Saroj Yadav, J.)    (Ramesh Sinha, J.)
 
Order Date :- 12.8.2021
 
Ajit/-