Rajasthan High Court - Jodhpur
Dr Dharmendra vs Uoi on 1 October, 2021
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3042/2020
Dr Dharmendra S/o Sh. Jagat Singh, Aged About 52 Years, B/c
Jat, R/o Kalawati Hospital, Dabwali, Tehsil Dabwali Dist. Sirsa
(Haryana). Presently Kalawat Jyani Hospital, C-Block, Sri
Ganganagar (Raj.). (Presently Lodged At District Jail, Sri
Ganganagar).
----Petitioner
Versus
Uoi, Through C.b.n., Chittorgarh.
----Respondent
For Petitioner(s) : Mr. Vineet Jain
For Respondent(s) : Nr. N.K. Rai, Special Public Prosecutor
for the Central Bureau of Narcotics
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order
Date of pronouncement : 01/10/2021
Judgment reserved on : 21/09/2021
BY THE COURT :
The petitioner herein has been arrested and is in
custody in connection with Complaint No.1/2020 registered at the
office of the Central Bureau of Narcotics (hereinafter referred to as
CBN) at Chittorgarh for the offence under Section 8/22 of the
NDPS Act. He has filed the instant application under Section 439
CrPC with a prayer to release him on bail.
At the outset, it may be stated that the petitioner is a
medical professional, having qualification of M.D. (Psychiatry).
Looking to the submissions made on behalf of the petitioner that
(2 of 14) [CRLMB-3042/2020]
he was suffering from ailments, this court vide order dated
31.03.2020 directed medical examination of the petitioner through
a Government Medical Officer. In furtherance of this direction, the
report of the petitioner's medical examination was received.
Finding that the petitioner was suffering from neurological
ailments, to be specific, spinal chord issues, this court granted
interim bail to the petitioner on medical grounds vide order dated
09.04.2020, which has been extended from time to time. While
extending the interim bail of the petitioner, it was observed in
order dated 20.07.2020 that the petitioner has been advised
spinal surgery at the Fortis Hospital. The bail application was
heard on merits on 21.09.2021.
Brief facts relevant and essential for disposal of the bail
application are noted hereinbelow :
The petitioner operates two medical institutions in the
name of Jyani Kalawati Hospital, one at Birbal Chowk, Sri
Ganganagar and the other at Mandi Dabwali, Sirsa, Haryana. Mr.
Shailesh Kumar Mishra, Inspector, CBN, claims to have received
an information on 21.02.2020 that the petitioner was indulging in
illegal transactions of medicinal drugs having
narcotic/psychotropic content and if the inspection of the Jyani
Kalawati Hospitals at Sri Ganganagar and Mandi Dabwali was
undertaken, huge irregularities could be found. Accordingly, two
teams of CBN officials were constituted, one for the search of
Jyani Kalawati Hospital, Mandi Dabwali (Punjab & Haryana) and
the other for the search of Jyani Kalawati Hospital, Sri
Ganganagar. Both the teams carried out search operations and
(3 of 14) [CRLMB-3042/2020]
inspected the premises. The petitioner was found present at Jyani
Kalawati Hospital, Sri Ganganagar. Psychotropic drugs were found
in the stock at both the medical institutions, the inventory whereof
was prepared. During the course of investigation, details regarding
procurement of the drugs in question were sought for and it came
to light that all the medicinal preparations had been lawfully
procured by the hospitals from approved sources. In the
complaint, the Investigating Officer has catalogued the list of
drugs seized/used at the two hospitals from the year 2018 to
2020 and at the end of each inventory, a categoric statement has
been made that the sale of medicines to the petitioner's
institutions was lawful and did not indicate any irregularity.
However, after concluding investigation, a complaint came to be
filed against the petitioner in the competent court with the
allegation that records of previous three years of both the
hospitals were checked and audited. Certain irregularities were
allegedly noticed in maintenance of records. A pertinent allegation
was made that Form No.7 prescribed under Rule 67-A of the NDPS
Rules was not maintained strictly in accordance with the
requirement of the statute. Para No.14 of the complaint is relevant
to the controversy and is reproduced hereinbelow for the sake of
ready reference:-
"14- ;g fd vkjksih ds laca/k esa tkudkjh gsrq Jheku~ vfrfjDr vkS'kf/k
fu;a=d] Jhxaxkuxj dks fnukad 03-03-2020 dks fy[ks x;s ftlds tokc
esa Jh jkeiky] nok fu;a=d vf/[email protected] vf/kdkjh }kjk crk;k fd
dykorh gkWLihVy] 47 lh CykWd chjcy pkSd] Jhxaxkuxj dh nks ckj
f"kdk;r ds vk/kkj fnukad 11-03-2018 ,oa fnukad 13-10-2019 dks tkpa
dh xbZ FkhA tkap esa MkWŒ /kesZnz flag T;k.kh] ,e-Mh- lkbZdsfVªLV }kjk
fofHkUu "kSM;wy ,p] ,p&1 ,oe~ vU; vkS'kf/k;ka laxzfgr ik;h xbZA
(4 of 14) [CRLMB-3042/2020]
fnukad 13-10-2019 dks ekSds ij tkap vf/kdkjh }kjk pkgs tkus ij
vf/kfu;e ds "kSM;wy ^^ds** ds rgr la/kkfjr lIykbZ jftLVj ekSds ij
miyC/k ugha djok ik;sA ysfdu fnukad 27-12-2019 dks "kSM;wy ^^ds**
ds rgr la/kkfjr lIykbZ jftLVj v/kksgLrk{kjdrkZ dks fnukad dks
izLrqr fd;k x;k] ftldh Nk;kizfr layXu gSA ,oa blds vfrfjDr
crk;k fd izdj.k esa orZeku esa tkap yfEcr gS o tkap iw.kZ dj vkidks
lwpuk izsf'kr dj nh tk;sxhA i= o tokc "kkfey ifjokn gSA "
In para Nos.26 to 30 of the complaint, it was noted that enquiry
was made regarding authenticity of the two institutions, but no
reply was received from the concerned departments in Rajasthan.
However, the Social Justice and Empowerment Department,
Haryana responded that the de-addiction center being operated at
the Jyani Kalawati Hospital, Mandi Dabwali was duly authorized
and registered with the department. The Investigating Officer
concluded in para No.32 of the complaint that the petitioner failed
to maintain the requisite information in the prescribed proforma,
which amounted to an illegality because as per Rule 67-A of the
NDPS Rules, the petitioner was required to maintain complete
details of purchase, sale and use of the drugs having narcotic and
psychotropic contents for a period of two years, but the petitioner
failed to maintain this record in a complete manner/in the
prescribed proforma and thus, he was liable to be prosecuted for
grave offences. The relevant paras Nos.32 and 33 of the complaint
are reproduced hereinbelow for the sake of ready reference :-
"32- ;g fd nkSjkus dk;Zokgh T;kuh dyokrh gkWLihVy] chjcy pkSd]
Jhxaxkuxj ,oa T;kuh dyokrh gkWLihVy] eaMh Mcokyh ls tIr fd;s
x;s 4 jftLVj fooj.k fuEu izdkj gS %&
(5 of 14) [CRLMB-3042/2020]
Ø-la- jftLVj dk jftLVj esa jftLVj esa i`'B
fooj.k dqy i`'B dh la[;k
ftlesa bUnzkt
gSa
1 gjk jftLVj 1 ls 400 rd 1 ls 156 rd
2 dkyl esV dk 1 ls 203 rd 1 ls 69 ,oa
jftLVj 180 ls 203
rd
3 "kadj LVkd 1 ls 145 rd 1 ls 25
jftLVj
4 uhyxxu yky 1 ls 601 rd 1 ls 79
jftLVj
;g fd mijksDr jftLVjh esa fd;s x;s bUnzkt ls ;g Loeso
Li'V gS fd vkjksih /kesUnz T;kuh dk mís"; fu;e ds fo:) gksdj
fu;ekuqlkj izLrkfor izk:i esa lwpuk ladfyr ugha fd;k x;k FkkA tks
fd fu;e fo:) gksdj ltk ;ksX; gSA jftLVj "kkfey ifjokn gSA
33- ;g fd fu;e 67 ,u-Mh-ih-,l- ,DV ,.M :y 1985 esa lUghr
fn"kk funsZ"k ds vuqlkj vkjksih /kesUnz T;kuh dks ,u-Mh-ih-,l- ds ?kVd
dh nokbZ;ksa dks [kjhn ,oa fcØ[email protected] ds fy, de ls de nks lky
dk nLrkost ,oa lwpuk izLrkfor izk:i esa lqjf{kr j[kuk fu;ekuqlkj
vko";d Fkk ysfdu vU;Fkk mís"; ls buds }kjk nks lky dk lwpuk
leqfpr izk:i esa lqjf{kr ugha j[kuk ,d t?kU; vijk/k gSA "
The bail application preferred by the petitioner has
been dismissed by the Special Judge, NDPS Act Cases, Sri
Ganganagar by the order dated 25.02.2020, whereupon the
petitioner has approached this court by way of this application
under Section 439 CrPC.
Learned counsel Mr. Vineet Jain, representing the
petitioner, vehemently and fervently contended that the case set
up by the Central Bureau of Narcotics in the complaint is totally
cooked up and the allegations made therein are unsubstantiated.
(6 of 14) [CRLMB-3042/2020]
He submitted that the malafide intention of the Central Bureau of
Narcotics officials is writ large on the face of the record because
they even went to the extent of making a rampant search in the
duly authorized medical institution of the petitioner in Mandi
Dabwali, which is beyond there jurisdiction. He urged that as a
matter of fact, the petitioner is being prosecuted on hyper-
technical grounds. There is no dispute regarding the petitioner
being a qualified psychiatrist, who is operating two duly authorized
institutions at Sri Ganganagar and Mandi Dabwali, Haryana. Both
the institutions were inspected and it has been confirmed that all
the medicines, which were procured, used and administered
therein had been lawfully purchased from authorized
dealers/manufacturers. Mr. Jain urged that the record of
use/administration of the medicines is required to be maintained
in a register prescribed under Schedule K of the Drugs and
Cosmetics Act and that the details which are entered in this
register are at par with the details which are required to be filled
in the Form No.7 prescribed under the NDPS Rules. He contended
that if at all any irregularity had been observed in the
maintenance of record at any of the institutions, then too the
infringement, if any, would be punishable under the Drugs and
Cosmetics Act. He further urged that even if it is presumed that
the information required to be stored and saved in the Form No.7
was not maintained for a period of two years, the petitioner
cannot be imputed any mens rea because unquestionably the very
same information was entered in the register maintained under
Schedule K of the Drugs and Cosmetics Rules. The said register
was provided to the Bureau officials. His further contention was
(7 of 14) [CRLMB-3042/2020]
that even if the allegations set out in the complaint are accepted
to be true on the face of the record, there is no foundation for
assuming that the petitioner violated the provisions of the NDPS
Act or the Rules framed thereunder. He contended that even if the
allegations set out in the complaint are accepted to be true on the
face of the record, the infringement, if any, would be covered by
Rule 65A of the NDPS Rules and offence so committed would be
punishable under the Drugs and Cosmetics Act and the Rules
framed thereunder. He urged that even if it is assumed for the
argument's sake that the Form No.7 prescribed under the NDPS
Rules was not maintained for a period of two years, the case of
the petitioner would not be covered under any clause of Section
37 of the NDPS Act providing riders on bail and hence also, the
petitioner, who is suffering from various serious ailments is
entitled to be released on bail.
Per contra, learned Special Public Prosecutor Mr. N.K.
Rai vehemently and fervently opposed the submissions advanced
by the petitioner's counsel. He contended that the record was not
maintained and preserved in the prescribed proforma in Form
No.7 for a period of two years in the two institutions being
operated by the petitioner and thus, there is a clear violation of
Rule 67A of the NDPS Rules, which is punishable with a minimum
imprisonment of 10 years. To support his contention, Mr. Rai has
relied upon the judgment of Hon'ble Supreme Court in the case of
The State of Punjab Vs. Rakesh Kumar [Criminal Appeal
No.1512/2018 decided on 03.12.2018]. He, thus, implored
the court to dismiss the instant bail application.
(8 of 14) [CRLMB-3042/2020]
I have given my thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record. The respondents have themselves admitted
that the petitioner is a duly qualified psychiatrist. The credentials
of the petitioner have been placed on record, as per which, he
holds Masters degree in Psychiatry. The fact regarding the two
institutions of the petitioner, where Drug De-addiction Centers are
being operated, being duly authorized by the concerned
departments, has not been disputed in the complaint filed by the
respondents. Thus, the controversy, which this court is called
upon to decide is in a very narrow compass, i.e.
(1) whether the infringements alleged are covered under
the NDPS Act or that it is a case of violation of Drugs and
Cosmetics Act and the Rules framed thereunder simplicitor;
(2) whether the petitioner had any mens rea to commit the
offences alleged;
(3) If at all the case as set up in the complaint is accepted,
the restrictions contained in Section 37 of the NDPS Act
would apply or not.
As has been noted above, the fact regarding the
petitioner being a qualified Psychiatrist and the two hospitals
being duly registered with the competent authorities is not in
dispute. Whilst the respondents have set up a case that the
petitioner infringed Rule 67A of the NDPS Rules, the petitioner has
set up a case that violation, if any, would be of Rule 65-A of the
NDPS Rules and would be punishable under the Drugs and
Cosmetics Act and the Rules framed thereunder, for which, a
(9 of 14) [CRLMB-3042/2020]
complaint would have to be filed in the court of the competent
Magistrate. The relevant Rules 65-A, 67-A, Form No.7 of the
NDPS Rules and Schedule K appended to the Drugs and Cosmetics
Act are quoted hereinbelow for the sake of ready reference :
"65A. Sale, purchase, consumption or use of
psychotropic substances.-No person shall sell, purchase,
consume or use any psychotropic substance except in
accordance with the Drugs and Cosmetics Rules, 1945
Provided that sale, purchase, consumption or use of a
psychotropic substance specified in Schedule I shall be only
for the purposes mentioned in Chapter VIIA.
67-A. Notwithstanding anything contained in the foregoing
provisions of these rules-
(a) a narcotic drug and psychotropic substance may be used
for-
(i) scientific requirement including analytical requirements of
any Government laboratory or any research institution in
India or abroad;
(ii) very limited medical requirements of a foreigner by a
duly authorised person of a hospital or any other
establishment of the Government especially approved by
that Government;
(iii) the purpose of de-addiction of drug addicts by
Government or local body or by an approved charity or
voluntary organisation or by such other institution as may be
approved by the Central Government.
or the authority exercising the powers under sub-
clause (iv) of clause (a)
(iv) the purpose of restraining or immobilising wild animals
by or under the authority of the Government and approved
by that Government.
(10 of 14) [CRLMB-3042/2020]
(b) persons performing medical or scientific functions or the
authority exercising the powers under sub-clause (iv) of
clause (a) shall keep records concerning the acquisition of
the substance and the details of their use in Form 7 of these
rules and such records are to be preserved for at least two
years alter their (sic);
(c) a narcotic drug and psychohopic substance may be
supplied or dispensed for use to a foreigrer Pursuant to
medical Pres only from the authorised licensed pharmacists
or other authorised retail distributors designated by
authorities responsible for public health.
(See rules 35,53,64 and 67 A)
1.Name of the laboratory/ research institution/ hospital/
dispensary/ person/ authority]
2, Address
3. Name of the Drug
4. From whom the drug was obtained/ purchased
5. Quantity obtained / purchased
6. Date on which obtained/purchased
Details of Use:
Sl. Date Quantity Purpose Signature of the
No. consumed user
Note.- (1) This form shall be kept for 2 years from the last
date of consumption.
(2) This shall be produced for verification by any of
the officers empowered under section 41 or 42 of
the Narcotic Drugs-and psychotropic Substances
Act or any officer-in-charge of a police station.
(11 of 14) [CRLMB-3042/2020]
Schedule K
(See rule 123)
Class of drugs Extent and Conditions of
Exemptions
1. Drugs falling under All the provisions of Chapter
clause (b)(i) of section 3 of IV of the Act and the rules
the Drugs and Cosmetics thereunder, subject to the
Act, not intended for conditions that the drug is not
medicinal use. sold for medicinal use or for
use in the manufacture of
medicines and that each
container is labelled
conspicuously with the words
"NOT FOR MEDICINAL USE".
[2A. Quinine and other Persons selling the drugs by
antimalarial drugs.] retail under arrangements
made by State Government
for sale and distribution of the
drugs will be exempted from
the requirement to take out
licences for retail sale under
clause (c)3 of Section 18 of
the Act.
[5. Drugs supplied by a All the provisions of
registered medical Chapter IV of the Act and the
practitioner to his own Rules made thereunder,
patient or any drug subject to the following
specified in Schedule C conditions:
[(1) The drugs shall be
supplied by a registered
purchased only from a dealer
medical practitioner at the or a manufacturer licensed
request of another such under these rules and records
practitioner if it is specially of such purchases showing the
prepared with reference to names and quantities of such
the condition and for the drugs together with their
use of an individual patient batch numbers and the names
provided the registered and addresses of the
medical practitioner is not manufacturers shall be
(a) keeping an open shop maintained. Such records shall
or (b) selling across the be open to inspection by an
counter or (c) engaged in Inspector appointed under the
Act, who may, if necessary,
the importation,
make enquiries about
manufacture, distribution
purchases of the drugs and
or sale of drugs in India to a may also take samples for
degree which render him test.]
liable to the provisions of
Chapter IV of the Act and the (2) In the case of medicine
rules thereunder.] containing a substance
specified in 1 [Schedule G, H
or X] the following additional
conditions shall be complied
with:-
(a) the medicine shall be
labelled with the name and
(12 of 14) [CRLMB-3042/2020]
address of the registered
medical practitioner by whom
it is supplied;
(b) if the medicine is for
external application, it shall be
labelled with the words ***
"For external use only" or, if it
is for internal use with the
dose;
(c) the name of the medicine
or ingredients of the
preparation and the quantities
thereof, the dose prescribed,
the name of the patient and
the date of supply and the
name of the person who gave
the prescription shall be
entered at the time of supply
in register to be maintained
for the purpose;
(d) the entry in the register
shall be given a number and
that number shall be entered
on the label of the container;
(e) the register and the
prescription, if any, on which
the medicines are issued shall
be preserved for not less than
two years from the date of the
last entry in the register or the
date of the prescription, as the
case may be.
[(3) The drug will be stored
under proper storage
conditions as directed on the
label.]
[(4) No drug shall be supplied
or dispensed after the date of
expiration of potency recorded
on its container, label or
wrapper or in violation of any
statement or direction
recorded on such container,
label or wrapper.]
5A. Drugs supplied by a The provisions of Chapter IV of
hospital or dispensary the Act and the Rules
maintained or supported thereunder which require them
by Government or local to be covered by a sale
body. *** licence, subject to the
following conditions:"
(13 of 14) [CRLMB-3042/2020]
From a perusal of the Form No.7, in reference whereto
the violation of the NDPS Act is attributed to the petitioner, it is
clear that the details required to be mentioned therein are almost
identical to those which are required to be mentioned in the
Schedule K of the Drugs and Cosmetics Rules. The respondents
have not disputed the fact that the registers maintained under
Schedule K of the Drugs and Cosmetic Rules, 1945 at both the
institutions were provided to them. There is no allegation
regarding any discrepancies in the entries made therein.
Therefore, there is merit in the contention of Mr. Jain that even if
it is assumed that the petitioner failed to maintain the Form No.7
in the proper proforma, then too he had no mens rea whatsoever
for committing any offence punishable under the NDPS Act or the
Rules framed thereunder. Any comment by this court as to
whether violation in the case at hand would be of Rule 65-A or
that of 67-A of the NDPS Rules would be premature and may even
prejudice the trial. The fact that all the medicinal preparations
administered to the patients at both the institutions were lawfully
procured is admitted in the complaint. On a perusal of the
Supreme Court judgment in The State of Punjab Vs. Rakesh
Kumar (supra) relied upon by the learned Public Prosecutor, it
comes out that the accused persons of that case were found in
possession of bulk drugs without any valid authorization, whereas
in the case at hand, the complaint itself reads that the drugs in
question were lawfully acquired for the two medical institutions
operated by the petitioner. Thus, the facts of the said case are
(14 of 14) [CRLMB-3042/2020]
totally distinguishable. The petitioner is suffering from serious
medical ailments and he has been extended the benefit of interim
bail by this court. He is a qualified medical professional and is a
permanent resident of Haryana and owns significant properties.
Thus, there is no likelihood of the petitioner absconding in the
event of being released on bail. Furthermore, the respondents too
have not expressed any apprehension either in the complaint or in
their reply that the petitioner may repeat the offence, if released
on bail. Thus, the conditions of Section 37 of the NDPS Act are
duly satisfied. Hence, I am inclined to extend the indulgence of
bail to the petitioner in this case.
Accordingly, the instant bail application under Section
439 CrPC is allowed. It is ordered that the accused-petitioner Dr.
Dharmendra S/o Sh. Jagat Singh arrested in connection with
Complaint No.1/2020 registered at the Office of C.B.N.,
Chittorgarh shall be released on bail; provided he furnishes a
personal bond of Rs.5,00,000/- and two surety bonds of
Rs.2,50,000/- each to the satisfaction of the learned trial court
with the stipulation to appear before that Court on all dates of
hearing and as and when called upon to do so.
(SANDEEP MEHTA),J
1-Pramod/-
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