Uttarakhand High Court
Dr. Rajesh Kumar Gupta vs State Of Uttarakhand And Another on 12 August, 2025
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IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE SHRI JUSTICE ALOK MAHRA
Criminal Misc. Application No.414 of 2008
Dr. Rajesh Kumar Gupta. ...Applicant
Versus
State of Uttarakhand and another. ...Respondents
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Presence:-
Mr. Aditya Singh, Advocate for the applicant.
Mr. Deepak Bisht, Deputy Advocate General along with Mr.
Prabhat Kandpal, learned Brief Holder for the State of
Uttarakhand.
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Judgment reserved on: 03.07.2025
Judgment delivered on: 12.08.2025
JUDGMENT
The present application under Section
482 Cr.P.C. has been preferred by the applicant,
seeking quashing of entire proceedings of S.S.T.
of 2004, registered under Sections 224& 420 of
the Indian Penal Code, and Section 8 read with
Section 22 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 and Section 4 read with
Section 7 of the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954, (for
short'Drugs and Magic Remedies Act'), registered
at Police Station Rishikesh, District Dehradun.
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2. Facts, giving rise to the present
application, are that, on 03.08.2004, the premises
of Neeraj Clinic Private Limited, of which the
applicant is Director, was raided by the police
team. During the course of raid, a large quantity
of restricted psychotropic substances was
recovered from the clinic. As a consequence,
thereof, an F.I.R. was lodged at Police Station
Rishikesh, being Case Crime No. 303 of 2004,
under Sections 8/22 of the N.D.P.S. Act and
Sections 147, 323, 504, 506, 353, 332, 224, 427,
and 420 of the I.P.C. and Section 7 of the
Criminal Law Amendment Act.
3. According to the applicant, apart from
him, several other co-accused persons, including
registered medical practitioners holding degrees
such as M.B.B.S. and B.A.M.S., were shown to be
involved in the commission of the alleged offences;
that, the aforesaid medical practitioners were
purportedly engaged at the applicant's clinic; that,
the applicant was arrested on 13.08.2004 and,
after conclusion of investigation, Chargesheet No.
282 of 2004 was submitted on 08.12.2004 against
15 accused persons, including the applicant. The
bail application of the applicant was initially
rejected by learned Special Judge (NDPS),
Dehradun. Subsequently, charges were framed
against the applicant on 30.07.2005 under
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Sections 8/22 of the N.D.P.S. Act, Sections 224
and 420 I.P.C., and Sections 4/7 of the Drugs and
Magic Remedies (Objectionable Advertisements)
Act.
4. The applicant thereafter filed Bail
Application No. 917 of 2005, which was allowed
by a Coordinate Bench of this Court vide order
dated 28.09.2005. Thereafter, State of
Uttarakhand challenged the bail order before the
Hon'ble Supreme Court by filing SLP (Criminal)
No. 5345 of 2005, in which the Hon'ble Supreme
Court, vide its judgment dated 14.11.2005,
remanded the matter back to this Court to
reconsider the bail application of the applicant
with regard to applicability of provisions
contained in Sections 8 and 37 of the N.D.P.S.
Act.
5. Thereafter, this Court heard the bail
application of the applicant vide order dated
02.12.2005 and granted bail to the applicant,
thereafter, the State approached the Hon'ble
Supreme Court by filing another SLP, challenging
the order dated 02.12.2005, by which bail was
granted to the applicant. The Hon'ble Supreme
Court rejected the said SLP and affirmed the order
dated 02.12.2005. Thereafter, the applicant filed
this C-482 Application, seeking quashing of
criminal proceedings pending against the
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applicant in the Court of learned Special Judge
(N.D.P.S.), Dehradun, which was disposed of by
the Coordinate Bench of this Court vide judgment
dated 15.09.2009, whereby the proceedings
against the applicant for the offences punishable
under Section 8/22 of the N.D.P.S. Act were
quashed and the remaining proceedings were
directed to continue.
6. Aggrieved by the said judgment, the
State preferred a Special Leave Petition (Crl.)
No.10144 of 2009 before the Hon'ble Supreme
Court, which, upon grant of leave, allowed the
said Criminal Appeal and remanded the matter
back to this Court for reconsideration on merits,
vide its judgment & order dated 13.01.2017; that
before the trial Court, trial proceeded against the
applicant and applicant was convicted vide
judgment & order dated 20.02.2017 passed by
learned Chief Judicial Magistrate, Dehrdaun.
Being aggrieved by the said order of conviction
dated 20.02.2017, the applicant preferred
Criminal Appeal No. 164 of 2017. The said
Criminal Appeal was allowed by learned 5th
Additional Sessions Judge, Dehradun vide
judgment & order dated 17.02.2018 and the order
dated 20.02.2017 was set aside and the applicant
was acquitted of all the charges levelled against
him. After remand of the matter by the Hon'ble
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Apex Court vide judgment & order dated
13.01.2017, the Coordinate Bench of this Court
vide judgment dated 29.11.2018 dismissed this C-
482 application; that, thereafter, the applicant
challenged the order dated 29.11.2018 before the
Hon'ble Apex Court in Criminal Appeal No. 832 of
2024. The Hon'ble Apex Court vide its judgment
and order dated 13.02.2024 set aside the order
dated 29.11.2018 and remanded the matter back
to this Court to reconsider this Criminal Misc.
Application in light of the acquittal of the
applicant under the provisions of the aforesaid
two Acts and in light of Sections 8 and 22 of the
N.D.P.S. Act.
7. Heard learned counsel for the parties
and perused the record.
8. Learned counsel for the applicant
submitted that, during the course of trial, there
has been no evidence led by the prosecution to
show that any offence under Section 8/22 of
N.D.P.S. Act was made out against the applicant,
as had that been the case, the learned trial Court,
under the provisions contained under Section 216
Cr.P.C, could have enhanced the charges on the
applicant. He has further argued that the
psychotropic substances, which were recovered
from the clinic of the applicant, namely Epilan-C.
Phenobarbital and Chlordiazepoxide falls under
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entry no. 69 and 36 respectively of the Schedule
to the N.D.P.S. Act. Further, he submitted that,
as per Rule 65-A of the N.D.P.S. Rules, 1985,
proviso to Section 8 of the N.D.P.S. Act and Rule
123 read with Schedule 'H' and 'K' of the Drugs
and Cosmetics Rules carves an exception, as it
provides that these psychotropic drugs can be
used for medical and scientific purposes; that
since applicant's clinic, treating the patients for
epilepsy, engages M.B.B.S and B.A.M.S doctors
for treating such patients, therefore, no offence
under Section 8/22 of N.D.P.S. Act is made out
against the applicant.
9. Per contra, learned Deputy Advocate
General submitted that the psychotropic
substances, which were recovered from the clinic
of the appellant, were about 68.801 kgs of Epilan-
C. Phenobarbital and chlordiazepoxide, which is
admittedly a commercial quantity and is covered
under the Schedule of the N.D.P.S. Act. He further
submitted that proceedings under Section 8/22 of
the N.D.P.S. Act were quashed vide order dated
15.09.2009 passed by a Coordinate Bench of this
Court and the order dated 15.09.2009 was set
aside and the matter was remanded back by the
Hon'ble Supreme Court vide its judgement &
order dated 13.01.2017; that due to the aforesaid
facts, no trial was conducted for charges under
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Section 8/22 of the N.D.P.S. Act, which is evident
from paragraph no. 39 of the Appellate Court's
order dated 17.02.2018.
10. Learned Deputy Advocate General
submitted that Rule 65-A of the N.D.P.S. Rules
1985 was enacted with effect from 13.07.2010,
whereas, the alleged contrabands were recovered
from the clinic of the applicant on 03.08.2004,
therefore, the provision contained in Rule 65-A
would have no bearing in the case in hand. It is
further submitted that Section 80 of the N.D.P.S.
Act provides that the provisions of the N.D.P.S.
Act and the Rules made thereunder, shall be in
addition to and not in derogation of the Drugs &
Cosmetics Act, 1940 or the Rules made
thereunder. The N.D.P.S. Act and the Drugs &
Cosmetics Act operate in two different fields,
inasmuch as, N.D.P.S. Act is a Special Act, which
has been enacted with a view to make stringent
provisions for the control and regulation of
operations relating to Narcotic Drugs and
Psychotropic Substances, while, Drugs &
Cosmetics Act intends to regulate the import,
manufacture, distribution and sale of drugs and
cosmetics.
11. He further submits that Rule 123 of the
Drugs and Cosmetics Act, 1940 ordains that the
drugs specified in Schedule 'K' shall be exempted
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from the provisions of Chapter IV of the Act and
the Rules made thereunder to the extent and
subject to the condition specified in that Schedule
and the applicant has not furnished any
documents or have advanced any evidences to
avail the benefit of Rule 123 of Drugs and
Cosmetics Act.
12. On the basis of the rival submissions
made by learned counsel for the parties and on
perusing the judgment & order dated 17.02.2018
rendered in Criminal Appeal 164 of 2017, this
Court finds that for taking the benefit of Rule 65-
A and 66 of the N.D.P.S. Rules, the proviso to
Section 8 of the N.D.P.S. Act and Rule 123 read
with Schedule 'H' and 'K' of the Drugs and
Cosmetics Rules, it must be proved that the
Narcotic Drug or Psychotropic Substance was
being dealt in for a specified or real scientific or
medical purpose in the manner and to the extent
provided by the provisions of the Act or Rules or
orders made thereunder and, in case, such
provisions, impose any requirement by way of
licence, permit or authorisation, in accordance
with the terms and conditions of such licence,
permit or authorisation.
13. In order to claim this exemption under
proviso to Section 8 of the N.D.P.S. Act, it is not
sufficient to prove mere medical and scientific
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purpose of the Narcotic Drugs or Psychotropic
Substance but also that such use is 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 authorisation also in
accordance with the terms and conditions of such
licence, permit or authorisation. All of the three
requirements should be proved in order to claim
the benefit of the exemption.
14. The Hon'ble Supreme Court in the case
of Directorate Of Revenue Intelligence Vs. Raj
Kumar Arora & Ors, reported in 2025 SCC Online
SC 819, has dealt with this issue at length and
held that dealing in "psychotropic substances"
mentioned under Section 8 is not limited to the
list of psychotropic substances mentioned in
Schedule 1 of the Act but should also extend to
substances listed under the Schedule of the Act
for the purpose of the N.D.P.S. Act and Rules.
The Hon'ble Supreme Court has also laid down
the scope of Section 8 and its exception. The
relevant observations of the Hon'ble Supreme
Court are reproduced herein below:
"54. The mandate under Section 8 is that no
person shall produce, manufacture, possess,
sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-
State, import into India, export from India or
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tranship (hereinafter collectively referred to as
"deal in/dealing in") 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. In
a case where any such provision imposes any
requirement by way of licence, permit or
authorisation, the narcotic drugs and
psychotropic substances must also be dealt in
accordance with the terms and conditions of
such licence, permit or authorisation. The term
"psychotropic substance" mentioned in Section
8 must be seen in light of Section 2(xxiii) which
refers to the Schedule to the Act and all the
psychotropic substances mentioned therein.
Additionally, to bring a case within the
exception carved out under Section 8, each of
the conditions specified therein must be
satisfied. In other words, for the accused to
take the plea that his dealing in the narcotic
drug or psychotropic substance does not
constitute an offence under Section 8, it must
be proved that the drug or substance was
being dealt with (a) for medical or scientific
purposes AND; (b) in the manner and to the
extent provided by the provisions of the NDPS
Act or the NDPS Rules or the orders made
thereunder AND; (c) in accordance with the
terms and conditions of the licence, permit or
authorisation, if any.
55. It is just not enough to prove or establish
that the narcotic drug or psychotropic
substance is capable of being used for a
medical or scientific purpose. That would give
unnecessary leeway to persons to
indiscriminately deal with narcotic drugs and
psychotropic substances under the garb that
they could also be potentially used for medical
or scientific purposes. Moreover, several of
these drugs and substances are inherently of
such a nature that they have widespread
medicinal and scientific applications.
Therefore, an expansive interpretation of the
exception that the mere potential for usage of
the narcotic drug or psychotropic substance,
for medical or scientific purpose, is sufficient
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would run counter to the object of the Act
which seeks to act as a deterrent to the
widespread dealing in narcotic drugs and
psychotropic substances. What must,
therefore, be proved to take the benefit of the
exception is that the narcotic drug or
psychotropic substances was being dealt in for
a specified and real medical or scientific
purpose, in the manner and to the extent
provided by the provisions of the Act, the rules
and orders made thereunder and, in case such
provisions imposes any requirement by way of
licence, permit or authorisation, in accordance
with the terms and conditions of such licence,
permit or authorisation.
56. Therefore, if any psychotropic substance
mentioned in the Schedule to the Act is being
dealt with for a purpose other than medical or
scientific purposes, an offence under
Section 8(c) of the NDPS Act would be made
out. Furthermore, if any psychotropic
substance mentioned in the Schedule to the
Act is being dealt with for a medical or
scientific purpose, but not in accordance with
other provisions of the Act, rules, orders or, the
terms and conditions of the licence, permit or
authorisations, if any, then also, an offence
under Section 8(c) of the NDPS Act could be
said to have been made out. It is only when the
exception is complied with entirely or wholly,
that an accused can lay claim to the benefit
provided under the said provision.
[xxx]
90. (ii) Section 8(c) while prohibiting the
"dealing in" of all psychotropic substances
mentioned under the Schedule to the Act,
carves out an exception i.e., provides for a
situation wherein the dealing in of
psychotropic substances would not amount to
an offence. However, those conditions forming
part of the exception carved out under Section
8 must be read conjointly and not individually.
In other words, for the accused to take the plea
that his dealing in the narcotic drug or
psychotropic substance does not constitute an
offence under Section 8, it must be proved that
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the drug or substance was being dealt with (a)
for medical or scientific purposes AND; (b) in
the manner and to the extent provided by the
provisions of the NDPS Act or the NDPS Rules
or the orders made thereunder AND; (c) in
accordance with the terms and conditions of
the licence, permit or authorisation, if any,
required under the provisions of the NDPS Act
or the NDPS Rules or the orders made
thereunder."
15. In the present case, the psychotropic
substances seized from the clinic of the applicant
fall under entry 69 and 36 of the Schedule of the
NDPS Act, namely, Epilan C- Phenobarbital and
Chlordiazepoxide respectively. Thus, the
provisions of Section 8 of NDPS Act would be
applicable to such substances also.
16. Section 123 of the Drugs and Cosmetic
Act, 1940 is reproduced herein below:
"123. The drugs specified in Schedule K shall
be exempted from the provisions of Chapter IV
of the Act and the rules made thereunder to
the extent and subject to the conditions
specified in that Schedule."
17. Entry No. 5 under Schedule (K) are the
drugs which are supplied by a registered medical
practitioner with which we are presently
concerned. The relevant provision of Schedule (K)
reads as under:-
"5. Drugs supplied by a registered medical practitioner
to his own patient or any drug specified in Schedule C
supplied by a registered medical practitioner at the
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request of another such practitioner, if it is specially
prepared with reference to the condition and for the use
of an individual patient, provided the registered medical
practitioner is not--
(a) keeping an open shop; or
(b) selling across the counter; or
(c) engaged in the importation, manufacture, distribution
or sale of drugs in India to a degree which renders him
liable to the provisions of Chapter IV of the Act and the
rules thereunder."
All the provisions of Chapter IV of the Act and the
rules made thereunder, subject to the following
conditions: -
5[(1) The drugs shall be purchased only from a dealer or
a manufacturer licensed under these rules, and records
of such purchases showing the names and quantities of
such drugs, together with their batch numbers and
names and addresses of the manufacturers shall be
maintained. Such records shall be open to inspection by
an Inspector appointed under the Act, who may, if
necessary, make enquiries about purchases of the
drugs and may also take samples for test.]
(2) In the case of medicine containing a substance
specified in [Schedule G, H or X] the following additional
conditions shall be complied with: -
(a) the medicine shall be labelled with the name and
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.]
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[(4) No drug shall be supplied of dispensed after the
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.]
(Emphasis supplied)
18. Plain reading of aforesaid provision
contained in entry-5 of the Schedule "K" suggests
that registered medical officer can sell drugs only
to his/her patients but he/she cannot keep stock
of drugs in open shop or sell the same across the
counter and in the event of violation of aforesaid
conditions exemption as carved out in entry-5 of
the schedule "K" of the Drugs and Cosmetic
Rules, would not be available to the persons
concerned.
19. In the instant case, the large quantity of
drugs seized from the clinic of the applicant leaves
no doubt that he stocked the drug for commercial
purpose. To claim the exemption of Rule 123
against the provisions of Chapter IV of the Drugs
and Cosmetics Act, the conditions contained in
entry 5 of Schedule K read with Rule 123 are to be
satisfied. Whether the applicant is entitled to
exemption of Rule 123 read with Schedule K of
the Drugs and Cosmetics Rules can be
determined only after evidences as to the records
of sale, bills etc. are considered to that effect.
Such matters of fact cannot be decided by this
court under S. 482 Cr.P.C and are to be decided
by the trial court after duly taking the evidences.
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20. As to Rule 65A and 66 of the N.D.P.S.
Rules, the conditions as to licence, permit or
authorisation should be fulfilled and the
application of such rules should be considered in
trial.
21. On bare perusal of the records before
this Court, no licence, permit or authority, which
permits the applicant to legally possess or deal in
the said psychotropic substances, have been
placed on record or brought to notice of this
court. It is clear that the applicant has nowhere
taken any plea nor any document or material is
produced by him to show that he had possession
of Epilan-C. Phenobarbital and Chlordiazepoxide
for medical or scientific purposes and the manner
and to the extent provided by the provisions of
this Act or the rules or the orders made
thereunder to bring his case within the scope and
ambit of exceptions claimed.
22. The issue as to whether the applicant
has any valid "licence, permit or authorisation" for
possessing the said quantity of the above
mentioned psychotropic substances, which finds
mention in the Schedule of the N.D.P.S. Act, is a
disputed question of fact and require appreciation
of evidence which has be determined during trial.
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23. As observed above, no trial of the
applicant was conducted for the offences
punishable under Section 8/22 of the N.D.P.S.
Act and was only conducted for the offences
punishable under I.P.C. and Drugs & Cosmetics
Act. The applicant has not produced any
document before the trial Court or before this
Court, which could prove that he was authorised
under the provisions of the concerned Act and the
Rules to legally possess the Narcotic or
Psychotropic Substances, which were recovered
from his clinic and were admittedly of commercial
quantity. Since the scope and the ambit of the
N.D.P.S. Act is in furtherance of the Drugs &
Cosmetics Act, 1940 and Rules and not in
derogation, the effect of acquittal of the appellant
in Criminal Appeal under the I.P.C. and Drugs &
Cosmetics Act will have no effect on the charges
levied against him under Section 8/22 of the
N.D.P.S. Act.
24. Moreover, it will be beyond the
jurisdiction of this Court under Section 482
Cr.P.C. to determine such question of facts. It is
a settled proposition of law and has been time and
again reiterated by the Hon'ble Apex Court that
such matters of fact could only be determined by
way of evidence before trial Court and, therefore,
the same would have to be adjudicated on the of
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merits of the case and not by invoking jurisdiction
under Section 482 of Cr.P.C.
25. Taking into consideration the overall
facts and material available on record, this Court
does not find appropriate to exercise its power
under Section 482 of Cr.P.C.
26. Accordingly, the criminal misc.
application is dismissed.
(Alok Mahra, J.)
Dated: 12.08.2025
BS
BALWANT Digitally signed by BALWANT SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a17c02fe2eacbf28cdf4
SINGH
ba7ce8640c5820, postalCode=263001, st=UTTARAKHAND,
serialNumber=04E141DF4614F9A4D5F48346EB553DE5185F418755
DC00A7A13C14A680C3FA90, cn=BALWANT SINGH
Date: 2025.08.12 15:55:49 +05'30'
