Madras High Court
A.M. Manikandan vs The Intelligence Officer on 30 June, 2022
Crl.O.P.No.21592 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.21592 of 2019
and
Crl.M.P.No.11183 of 2019
A.M. Manikandan ... Petitioner
Vs.
The Intelligence Officer,
Directorate of Revenue Intelligence,
27 GN Chetty Road, T.Nagar,
Chennai - 600 017. ... Respondent
Prayer: Criminal Original Petition is filed under section 482 of Cr.P.C., to
call for the records and quash the complaint dated 31.08.2018 of the
Principal Special Court (EC & NDPS) Act cases at Chennai.
For Petitioner : Mr. R. Subramanian
for Mr. T. Sugirtha
For Respondent : Mr. N.P. Kumar,
Special Public Prosecutor
1/9
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Crl.O.P.No.21592 of 2019
ORDER
Heard, the learned counsel for the petitioner and the learned
Special Public Prosecutor for the respondent.
2. This petition is filed to quash the complaint dated
31.08.2018, taken cognizance by the Special Court for NDPS Act cases at
Chennai.
3. The complaint in short is that the petitioner herein
Manikandan, a licensee under Drugs and Cosmetics Act and Proprietor of
M/S.AMM Exports and Imports under, Shipping Bill No.5693056 dated
02.07.2018 attempted to export drugs which includes preparation of
Codeine, which is a Psychotropic substance as per the Schedule under the
NDPS Act. However, any medical preparation with Codeine, classified as
'H' Schedule drug under the Drugs and Cosmetics Act, are exempted from
the purview of NDPS Act, provided the preparation contains less than 2.5%
of undivided preparations and which have been established in the
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Crl.O.P.No.21592 of 2019
therapeutic practice. This exemption was granted by the Union of India
under Notification No.SO826E dated 14.11.1985. Further, same has been
clarified by a Drug Control of General of India vide its communication dated
26.10.2005, to all the state drugs controller that by virtue of the due, a
Notification No.SO826E dated 14.11.1985. The preparation contain
Codeine and Salt do not fall under the provision of NDPS Act but they fall
under Schedule 'H' of Drugs and Cosmetics Rule and governed by the said
Rules.
4. In this context, the DRI intercepted the goods covered
under shipping bill and found that the subject goods were attempted to be
exported to a consignee, at Malaysia, under the guise of Ayurdhic Drugs.
The respondent has found the following medicine which is prohibited for
export by this petitioner/accused, which reads as below:-
“35.Methy 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
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Crl.O.P.No.21592 of 2019
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.”
5. The contention of the petitioner herein is that he is duly
licensed drug dealer and the consignment were examined by the drug
Inspector and no objection to explore was obtained. While so a drug which,
specifically exempted under the notification of the Government and
permitted to be stocked and sold cannot be considered as a prohibited drug
for sale. Therefore, the very prosecution under NDPS Act is per se illegal,
perverse and without jurisdiction. The petitioner herein, no doubt a licensee
under the Drugs and Cosmetics Act. The Form 21(b) with reference to Rule
61(2) of the Drugs and Cosmetics Act, which deals about licence to the
wholesaler annexed along with typed set indicates that the petitioner be
given licence to sell, stock, exhibit or offer for sale or distribute by wholesale
drugs specified in Schedule C and C(1) excluding those specified in
Schedule X and he is entitle to sell or distribute by wholesale, on the
premises situated at No.17A, Ground Floor, Lakshmi Narayanan 3rd Street,
Anna Nagar, Pammal, Chennai-75. This is specific prohibition imposed in
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Crl.O.P.No.21592 of 2019
the licence condition that no sale or any drug has been established made to a
person not holding requisite licence to sell, stock or exhibit for sale or
distribute the drug.
6. In the said circumstances, the invoice shipping bill which
was intercepted by DRI, indicates that the consignee is one CASS traders of
Malaysia and further, when there is prohibition for the petitioner herein to
sell H schedule drugs across the border, he has attempted to sell the drug, by
way of mis-declaring the drug. Then, again, yet another point raised by the
learned counsel for the petitioner is that if at all any violation committed by
the petitioner, he can be liable for violation of his licence under Drugs and
Cosmetics Act and DRI has no jurisdiction to register a case.
7. This Court unable to countenance such submission in the
light of Section 80 of NDPS Act which reads as below:-
"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
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Crl.O.P.No.21592 of 2019
1940) or the rules made thereunder."
8. Furthermore, NDPS Act which has been enacted for
specific purpose to control the menace of drug trafficking globally had
specifically restricts export of any manufactured drug without following the
procedures contemplated under the law. Here is a case where the petitioner
herein found to have attempted to export preparation of drug containing
prohibited psychotropic drug but exempted only for the purpose of
thyrotropic use within the country following the conditions imposed under
the Drugs and Cosmetics Act. Prima facie, there is a case made out by the
respondent that the licensee, who is entitled to sell drug to another licence
holder within India had attempted to export drug which contains no
psychotropic substance. The culpable mental state would be legally inferred
from the conduct to export the drug under the guise of Ayurvedic medicine.
The drug which is now attempted to be exported, contravening the Drugs
and Cosmetics Act as well as NDPS Act, is liable to be prosecuted and there
is no material to quash the same.
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Crl.O.P.No.21592 of 2019
9. The view of this Court regarding the Drug Syrup and the
action under NDPS Act is well fortify by the judgment of the Supreme Court
rendered in State of Punjab Vs. Rakesh Kumar reported in 2018 0
Supreme (SC) 1202. The contention of the learned counsel appearing for
the petitioner that the alleged violation of the petitioner will not fall under
purview of the provisions under NDPS Act is ill founded, as clarified by the
Hon'ble Supreme Court in the judgment.
10. For the said reason, this Court finds no merit in the
petition. This petition is dismissed. Consequently, connected miscellaneous
petition is closed.
30.06.2022
AT
Internet : Yes
Index : Yes/No
Speaking / Non-speaking
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Crl.O.P.No.21592 of 2019
To
1.The Principal Special Court (EC & NDPS) Act cases at Chennai.
2.The Intelligence Officer,
Directorate of Revenue Intelligence,
27 GN Chetty Road, T.Nagar,
Chennai - 600 017.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.21592 of 2019
Dr.G.JAYACHANDRAN,J.
AT
Crl.O.P.No.21592 of 2019 and
Crl.M.P.No.11183 of 2019
30.06.2022
https://www.mhc.tn.gov.in/judis
