Ramraj Choudhury vs The State Of West Bengal
2022 Latest Caselaw 8072 Cal

                     IN THE HIGH COURT AT CALCUTTA
                        (Criminal Revisional Jurisdiction)
                                  Appellate Side
Present:

The Hon'ble Justice Rai Chattopadhyay


                         C.R.R. 1082 of 2016
                                 With
              CRAN 8 of 2018 (Old No: CRAN 757 of 2018)
                                 With
             CRAN 11 of 2019 (Old No: CRAN 1634 of 2019)
                                 With
             CRAN 16 of 2020 (Old No: CRAN 1270 of 2020)
                                 With
                          CRAN 17 of 2021
                                 With
                          CRAN 18 of 2021
                                 With
                          CRAN 19 of 2022
                                 With
                          CRAN 23 of 2022


                         Ramraj Choudhury
                                Versus
                       The State of West Bengal


For the Petitioner                       : Mr. Sujash Ghosh Dastidar,
                                           Ms. Maheswari Sharma,
                                           Ms. Tulika Banerjee


For the State                            : Mr. Madhusudan Sur, Ld. APP.,
                                           Mr. Dipankar Pramanick.


Hearing concluded on     : 14/11/2022

Judgment on              : 06/12/2022
                                        2




Rai Chattopadhyay, J. :


     1. Allegedly the petitioner in this revision is the king pin of the syndicate

        responsible for illicit traffic, diversion and illegal sale of prohibited

        phensedyl.


     2. He has been implicated and shown arrested in connection with

        Jalangi Police Station Case No.1121 dated 29.11.2013 under Section

        22 of the Narcotic Drugs & Psychotropic Substances Act, 1985,

        (hereinafter referred to as the NDPS Act). This revision case of the

        petitioner rests on the points inter alia that the proceedings against

        him is not to subsist for - the offending substance being phensedyl,

        lodging the case against him under the provision of the NDPS Act,

        1985 has not been proper; that, the component thereof, i.e, codeine

        is not a contraband and prohibited drug as per provisions of the

        NDPS Act, 1985,      that in this case provisions of NDPS Act, 1985

        would not at all attract;     that in case of non-applicability of the

        provisions of NDPS Act, 1985 in this case - initiation of proceedings

        against the petitioner if has not been proper and that such a criminal

        proceedings against him should be quashed.


     3. The criminal proceeding started by registering the FIR lodged by S.I,

        Jalangi Police Station, Jalangi, District - Murshidabad on 22 nd
                                  3


   December, 2013.     In the FIR, it was, inter alia, alleged that the

   complainant got information on the same date at 17:15 hours and

   raided near Sirochar Bridge.      Immediately he diariesed the matter

   and proceeded to work out the source information along with his

   team. There, he could apprehend two persons with total 600 bottles

   of liquid styled as phensedyl, each containing 100ml quantity of the

   article.   The cash amount of Rs.38,000/- was also recovered from

   their custody.


4. Informant had stated that the name of the present petitioner

   appeared to be a group leader leading the entire operation of illicit

   transmission of 'phensedyl'. This fact has revealed from one of the

   accused persons apprehended, by interrogating him. It is found from

   the record that at the relevant point of time the petitioner was in

   custody in connection with some other police case. That is why, after

   obtaining permission from court, he was shown arrested in

   connection with the present case.


5. Upon registering the FIR on 22nd December, 2013 the police started

   investigation and the same ended into filing of charge sheet on 30 th

   May, 2014 under Section 22 of the NDPS Act, 1985.         Petitioner is

   aggrieved of the entire proceeding as well as filing of charge sheet

   against him in the said proceedings and has challenged the same by

   filing the present revision case.   Petitioner's grounds in a nut-shell
                                   4


   are that the offence as alleged against him is only unfounded and no

   ingredients thereof would be available against him; that the entire

   investigation as well as the finding of fact leading to submission of

   charge sheet against him is only baseless, in so far as no material

   has been recovered in this case from his custody; that the statement

   of the co-accused persons who is in police custody shall have no

   credibility or value to implicate the petitioner in the instant case; that

   the instant proceeding is a result of mala fide intention of the

   prosecution and the investigating agency to unnecessarily harass and

   commit him on the false allegation.


6. Mr. Sujash Ghosh Dastider, Ld. Advocate on behalf of the petitioner

   has submitted on one hand that no offending material has been

   recovered from the custody of his client. Implication of his client on

   the basis of the submission of the other co-accused person is only

   mala fide and prejudicial to his client's interest. He has also urged

   about the alleged inherent illegality in the entire process.


7. It has further been submitted on behalf of the petitioner that the

   recovered contraband is 'phensedyl' which is not categorized under

   the NDPS Act, 1985, under which the petitioner has been booked. In

   such circumstances, according to him, the petitioner could never

   have been booked under the provisions of the said Act, which is only

   misplaced and wrongly applied. Thus his implication in this case is
                                  5


   dehors the principles of law. It is submitted that the fact of this case

   would unfailingly point out to that the petitioner's case should not at

   all be committed to trial to test if he would be found guilty under the

   provisions of NDPS Act,1985, or not. Instead the proceeding initiated

   against the petitioner under Section 22 of the NDPS Act, 1985 is

   liable to be quashed in limine and set aside.


8. It has further been argued that 'phensedyl' is a therapeutic drug,

   covered and controlled under the provisions Drugs and Cosmetic Act,

   1945.   Therefore, according to him if at all any breach has been

   committed by the petitioner, the same should come under the penal

   provisions of the Drugs and Cosmetic Act and application of

   provisions of NDPS Act, 1985, against his client has only been

   erroneous.


9. In support of his argument, Ld. Advocate on behalf of the petitioner

   has relied on the unreported Division Bench judgment of the Hon'ble

   Allahabad High Court the case of Vibhor Rana vs. Union of India,

   decided on 24th December 2021.


10. Mr. Madhusudan Sur, Learned Additional Public Prosecutor, on

   behalf of the state has raised strong objection to such grounds and

   prayer made by the petitioner.        It is submitted that chemical

   examination of the recovered contraband article has been made.

   Result of the same would reveal the contraband to contain 'codeine
                                  6


   phosphate' and come under the perview of the NDPS Act, 1985. It is

   submitted that 'codeine phosphate' is a component which has already

   been categorized as a contraband article under the provisions of

   NDPS Act, 1985. Hence, according to him there is no error or mala

   fide on the part of the prosecution as alleged in lodging a case against

   the present petitioner under the provisions of NDPS Act, 1985. It is

   further submitted that the petitioner is a habitual offender and extent

   of his involvement has been amply brought on record in this case,

   during investigation, resulting into submission of charge sheet

   against him. It is submitted that though the contraband article has

   not been recovered from the possession of the petitioner himself, still

   in view of his involvement and role suggested by the materials

   collected during investigation, the intensity and gravity of the alleged

   offence he has been involved in shall make him to face the trial,

   under the rigorous provisions of the law, in an appropriate court. He

   submits that the petitioner should be tried before the appropriate

   court and the prosecution should be afforded an opportunity to bring

   home the charges against him.


11. Case Diary has been submitted in court for consideration.


12. The chemical examination report of the article seized in this case has

   already been collected during investigation and is available in the
                                         7


         case dairy. The finding of the chemical examination of the article has

         been recorded therein which is as follows:-




                                Result of Examination

       Using suitable Physical, Chemical tests and Instrumental methods of
chemical analysis (TLC/HPLC techniques, of the exhibits marked as Ex.- 'A1 &
B1', the following results were obtained.

     1) The samples marked as Ex-'A1' & 'B1' were analysed by the TLC
        technique aginst reference standard and found to contain codeine
        phosphate.

     2) The samples (Ex-'A1' & 'B1') come under the purview of N.D.P.S.
        Act'1985.

     Protocol   :- The tests are carried out as per the Manufacture's method

     Note       :- 1. Result relate only to exhibits tested.

                   2. After examination, the remnants of the exhibits marked
     as Ex-'A1' & 'B1', have been duly signed & sealed with the seal impression
     and are being returned herewith."



     13. Parties in this revision have accepted such findings in chemical

         examination and the petitioner had founded his first and main point

         of argument on the same.


     14. He says that codeine is for the therapeutic usage and is controlled

         under the provisions of the Drug and Cosmetic Act, 1945.

         Contravention thereof and the contravener shall be prosecuted under

         the said law only. Precisely, according to the petitioner if he is to be

         prosecuted at all in connection with the present case, the same

         should have been done under the provisions of the Drug and

         Cosmetic Act, 1945 and an application of provisions under the NDPS
                                  8


   Act, 1985, in this case, against him is only illegal and the prosecution

   so initiated is mala fide and perverse. The Allahabad High Court's

   decision, as mentioned above is relied on.


15. It would be beneficial to mention here the provision under Section 80

   of the NDPS Act, 1985, which is as follows:-


         "80. Application of the Drugs and Cosmetics Act, 1940 not
   barred. --The provisions of this Act or the rules made thereunder shall
   be in addition to, and not in derogation of, the Drugs and Cosmetics
   Act, 1940 (23 of 1940) or the rules made thereunder."



16. It would further be beneficial to observe the findings of the Hon'ble

   Supreme Court in a three Judges Bench decision, that is, State of

   Punjab vs. Rakesh Kumar reported in (2019) 2 SCC 466 , that,


        "13. However, we are unable to agree on the conclusion reached
   by the High Court for reasons stated further. First, we note that
   Section 80 of the NDPS Act, clearly lays down that application of the
   Drugs and Cosmetics Act is not barred, and provisions of the NDPS Act
   can be applicable in addition to that of the provisions of the Drugs and
   Cosmetics Act. The statute further clarifies that the provisions of the
   NDPS Act are not in derogation of the Drugs and Cosmetics Act, 1940.
   This Court in Union of India v. Sanjeev V. Deshpande [Union of
   India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC (Cri)
   496] , has held that :
             "35. ... essentially the Drugs and Cosmetics Act, 1940 deals
        with various operations of manufacture, sale, purchase, etc. of
        drugs generally whereas Narcotic Drugs and Psychotropic
        Substances Act, 1985 deals with a more specific class of drugs
        and, therefore, a special law on the subject. Further, the
        provisions of the Act operate in addition to the provisions of the
        1940 Act."

        14. The aforesaid decision in Sanjeev V. Deshpande case [Union of
   India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC (Cri)
   496] further clarifies that, the NDPS Act, should not be read in
   exclusion to the Drugs and Cosmetics Act, 1940. Additionally, it is the
   prerogative of the State to prosecute the offender in accordance with
                                  9


   law. In the present case, since the action of the respondent-accused

amounted to a prima facie violation of Section 8 of the NDPS Act, they were charged under Section 22 of the NDPS Act."

17. No less beneficial would be to follow the observation as regards this

in the judgments of Ajid Mondal @ Ajid Mondal vs. State of West

Bengal reported in 2017 SCCOnline Cal 16221 (equivalent citation in

2018 2 CHN 146), and Rasid Sk. Vs. State of West Bengal reported in

2017 SCCOnline Cal 16222, wherein it has been held as regards

applicability of the provision under Section 80 of the NDPS Act, 1985,

that the section "makes it amply clear that the provisions of NDPS Act

shall have affect in addition to and not in derogation of the Drugs and

Cosmetic Act or the rule made there under".

18. Hence, there shall be no two opinions as to what very categorically

and unambiguously has been provided under Section 80 of the NDPS

Act, 1985, that, provisions here and rules made hereunder shall be in

addition to and not in derogation of the Drugs and Cosmetic Act,

1945 and Rules.

19. Therefore, even if, for arguments sake, it is stated that petitioner's

case should have been initiated under the provisions of the Drug and

Cosmetic Act, 1945, that would not have been in defiance of the

provisions of the NDPS Act, 1985, but those provisions under the

NDPS Act would have been in addition to those under the Drugs and

Cosmetic Act, 1945.

20. Question comes if at all the provision under the NDPS Act, 1985, has

rightly been applied in this case, or in view of application of

erroneous penal provision against him, the petitioner should be

exempted from being prosecuted at all.

21. Petitioner's submission that composition 'codeine phosphate' found in

the article seized would exclude application of provisions of the NDPS

Act, 1985, would be refutable following the Division Bench judgment

of the Hon'ble Allahabad High Court, as referred to in this case by the

petitioner himself (mentioned earlier).

22. The relevant portion of the said judgment may be reproduced here to

understand the finding of the court:-

"20. Section 2 of the NDPS Act contains definitions and the following definitions are relevant for adjudicating the dispute involved in the present case:-

(xi) "manufactured drug" means-

(a) 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;

(xiv) "narcotic drug" means coca leaf, cannabis (hemp), poppy straw and includes all manufactured drugs;

(xv) "opium" means-

(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;

(xvi) "opium derivative" means-

(a) medicinal opium, that is, opium which has undergone the processes necessary to adopt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;

(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts:

(d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and

(e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine;

8. Prohibition of certain operations.- No person shall-

(a)......

(b) ......

(c) produce, manufacture, possess, sell purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship 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 provisions, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization:

............"

21. The position which emerges from a combined reading of the above quoted definition is that as per Section 2 (xvi) (C) of the Act, codeine and its salts are "opium derivatives". As per Section 2 (xi)

(a), opium derivatives are included in "manufactured drugs" and as

per Section 2 (xiv) all manufactured drugs are included in the definition of "narcotic drugs", unless the same falls within the exception appended to Section 2 (xi) providing that "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 manufactured drug".

22. On 14-11-1985 the Government of India has issued a notification No.826 (E) dated 14.111985 and S.O 40(E) dated 29-11- 1993 containing the list of narcotic drugs and Entry 35 thereof is as follows:- "Methyly 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 of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice."

23. The Hon'ble court holds that codeine content in the drug not more

than 2.5 % in undivided preparations and the drug being used in

therapeutic practice will not be a 'Manufacturer Drug' and therefore

will not be 'Narcotic Drug'.

24. Or else, evidently, codeine content beyond the said admissible limit

would render the so called drug to be a 'Manufacturer Drug' or

'Narcotic Drug', usage of which would be prohibited under Section 8

of the NDPS Act, 1985.

25. In this regard the finding of the Hon'ble Supreme Court in the

judgment of Mohd. Sahabuddin & Anr. vs. State of Assam reported in

(2012) 13 SCC 491, may be mentioned, which is as follows:-

"the submission that the contain of the codeine phosphate in which 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less then 10 mg of codeine phosphate thereby would fall

within the permissible limit as stipulated in the notification dated 14.11.1985 and 29.01.1993 should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means "contributing to cure of disease". In other words, the assessment of codeine content on dosage basis can only be made with the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as action of remedial agent. Since the appellant had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule H drug containing narcotic substance was being transported and that to stealthily, it cannot simply presumed that such transportation was for therapeutic practice as mentioned in the notification dated 14.11.1885 and 29.01.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml content of the cough syrup containing the prohibited quantity of 'codeine phosphate' is meant for human consumption, the same would certainly fall within the penal provisions of the NDPS Act, 1985, calling for appropriate punishment to be inflicted upon the appellant. Therefore, the appellant's failure to the establish the specific condition required to be satisfied under the above referred two notifications, the application of the exemption provided under the said notification un order to consider the appellant's application for bail by the courts below does arise. Therefore, there is no merit in this appeal".

26. Therefore the law is very well settled now that the contents of the

narcotic substance should not be more than 100 mg of codeine per

dose unit and with a concentration of not more than 2.5% in

undivided preparation, to be exempted to come under the perview of

the NDPS Act, 1985. The other condition provided for mandatory

compliance is that the article should be only for therapeutic practice.

27. Let me deal in this case with the second condition as mentioned

above at the first place. In this case seizure and arrest has been

made by police from the place of hording of the contraband. No

record is available to show that the seized articles were either

manufactured, being possessed or being transmitted for any

therapeutic and medicinal purpose. No documents as to the same is

available, where as contrarily, the prosecution's case is allegedly

against the illegal possession and transportation of the contraband

without any licenses etc. to justify its hording. Accused persons were

neither licensed to deal with the seized article, nor could explain the

purpose of their holding the same in such quantity or even as to who

would be the ultimate consumers of such product. Under such

circumstances the ratio of the case of Mohd. Sahabuddin & Anr.

reported in (2012) 13 SCC 491 as well as that of Abul Kasem, reported

in 2020 SCCOnline Cal 3392 would be squarely applicable in this

case. The Hon'ble High Court at Calcutta in the judgment as above

followed the ratio in Mohd. Sahabuddin's case and found that in

absence of any material to show that accused person possessed or

carried 'phensedyl syrup' for medicinal purposes, invocation of

provisions of the NDPS Act, 1985 was warranted.

28. It shall not be out of context to mention here the observations of the

Hon'ble Apex Court in Mohd. Sahabuddin's case, which shall be

applicable to the instant case too. While rejecting petitioner's bail in

that case, the court was pleased to hold "In view of the conduct of the

appellants in having transported huge quantity of cough syrup without

valid documents, they cannot be heard to state that they were not

expected to fulfil any of the statutory requirements either under the

provisions of the Drugs and Cosmetics Act or under the provisions of

the NDPS Act. When the appellants were not in a position to explain as

to whom the supply was meant either for distribution or for any

licensed dealer dealing with the pharmaceutical products and in the

absence of any other valid explanation for effecting the transportation

of such a huge quantity of the cough syrup which contained the

narcotic substance of codeine phosphate beyond the prescribed limit,

the application for grant of bail cannot be considered". Hence, in this

case acts and operations of the accused persons, including the

petitioner, shall definitely fall within the prohibition of section 8 of

the NDPS Act, 1985.

29. So far as the point as to whether the content of prohibited article in

the seized phensedyl would fall within the permissible limit or beyond

the same - is concerned, firstly, it can be said that, this point is not

agitated in this case at all. Even then, when this court applies its

cautious and analytical mind to it, the essential fallow up would be

that it is a question only to be determined in trial, upon evidence. At

this stage, it would be only premature to go into this question. Fact

remains that in this case, there are sufficient material on record

including the chemical analysis report of the contraband seized, that

makes out strong prima facie of those, to be available against the

petitioner. This obliviously satisfies the tests laid down by the

Hon'ble Apex Court in State of Haryana vs. Bhajanlal reported in AIR

1992 SC 604 (also1992 Supp (1) SCC 335), not to interfere into the

proceedings or initiation thereof against him.

30. All the discussions as made above, would warrant dismissal of this

revision.

31. Hence, CRR 1082 of 2016 is dismissed. Connected applications

being CRAN 8 of 2018 (Old No: CRAN 757 of 2018), CRAN 11 of 2019

(Old No: CRAN 1634 of 2019), CRAN 16 of 2020 (Old No: CRAN 1270

of 2020), CRAN 17 of 2021, CRAN 18 of 2021, CRAN 23 of 2022 are

disposed of. Case diary has been returned.

32. It is expected that the trial court shall take into consideration the

length of time for which this case has been pending and proceed as

expeditiously as possible, without unnecessarily granting

adjournments to either of the parties.

33. Urgent certified website copy of this judgment, if applied for, be

supplied to the parties upon usual undertaking.

(Rai Chattopadhyay,J.)