Amrik Singh vs State of Punjab

P.K. Jain, J.—This petition has been filed u/s 482 of the Code of Criminal Procedure for quashing F.I.R. No. 48, dated 15-4-1995 registered at Police Station, Ghal Khurd for an offence under Sections 21/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act) and the subsequent proceedings taken therein.

According to the First Information Report in question, the petitioner Amrik Singh was found to be ,in possession of 35 bottles of Phensedyl intoxicating medicine of 125 ml each. A sample of 25 ml. was drawn from each of the said bottle The sample bottles and the remaining bottles were sealed with the seal of TS and were seized by preparing a seizure memo. On the basis of a ruqa sent by Sub-Inspector, a case u/s 21 of the Act has been registered. The sample parcels were sent to the office of the Forensic Science Laboratory and the report dated 16-5-1995 has been received. As per report each sample was found to contain Codeine Phosphate 9.5 mg/5 ml.

It has been stated in the petition that the petitioner is the holder of Drug Licence No. 674-OB and 457-B to carry on his business of a retail chemist under the name and style of M/ Guru Nanak Medicose, Mudki, District Ferozepur, that the drug Phensedyl is a cough syrup being manufactured by M/ Rhone Poulenc Ltd., Bombay, a drug manufacturing company earlier known as May & Baker under their valid Licence No. 345 that the possession and sale of the said drug is no offence u/s 21 of the Act since the same does not fall within the ambit of the term "manufactured drug".

On a notice given to the respondent State, it has been stated in reply that the said syrup contains 9.5 mg. per 5 ml. Codeine Phosphate i.e. per bottle of the syrup contains 237.5 mg. of Codeine which is sufficient for an individual for intoxication purposes and the same is generally used by the addicts; and that the petitioner could not produce purchase bill/cash memo and the licence required for the sale of such item. It has been further stated that offence u/s 21 of the Act has been made out and the F.I.R. and the proceedings cannot be quashed.

I have heard the learned counsel for the parties and have gone through the record.

It has not been disputed at the Bar that the petitioner is carrying on his business as a retail chemist under the name and style of M/ Guru Nanak Medicose, Mudki having a valid Drug Licence No. 674-OB and 451-B (Annexure P. 1). It is also not disputed that Phensedyl is a cough linctus which is established in therapeutic practice. According to the report of the Forensic Science Laboratory, each sample was found to contain Codeine Phosphate in the ratio of 9.5 mg/5 ml. which is equivalent to one dosage.

Section 21 of the Act provides for punishment for contravention in relation to manufactured drugs and preparation The term "manufactured drug" has been defined by Section 2(xi) to mean inter alia a narcotic substance or preparation which the Central Government may by notification in the Official Gazette declared to be a manufactured drug. In exercise of the powers conferred by Sub-clause (b) of Clause (xi) of Section 2 of the Act, the Central Government declared certain narcotic substances and preparations mentioned in the Notification No. 0.826(E), dated 14-11-1985. The substance/preparation mentioned at Serial No. 35 of this Notification reads as under :-

Methyl 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 drug/per dosage unit and with concentration of not more than 2.5 per cent, in undivided preparations and which have been established in therapeutic practice."

From a bare perusal of the above description, a preparation containing not more than 100 mg. of the drug Codeine/ per dosage unit and with concentration of not more than 2.5 per cent, in undivided preparation and which has been established in therapeutic practice, is excepted from the ambit of Section 21 of the Act.

In the case in hand each sample was found to contain Codeine Phosphate in the proportion of 9.5 mg. per 5 ml., i.e. per dosage unit, which is permissible in view of the exception contained at Serial No. 3.5 of the aforesaid notification. Further, the Codeine Phosphate concentration comes to 1.9 per cent, in undivided preparation as per report of the Forensic Science Laboratory, copy of which has been placed by the State on the record. It has not been disputed at the bar that the drug ''Phensedyl'' has been established in therapeutic practice for the treatment of dry cough. Therefore, the preparation in question falls within the ambit of the exception as contained in the item at Serial No. 35 of the Notification.

The learned State counsel has argued that the preparation in question is being widely used for intoxicating purposes by students, teenagers and other addicts; that the petitioner was indulging in the sale of such drugs without prescription of the doctor to the addicts and he could not produce the purchase bill/ cash memo and the licence required for the sale of such item, and as such the petitioner is liable u/s 21 of the Act.

The aforesaid argument of the learned State counsel is misconceived. If the petitioner sells any drug to a person in contravention of licence granted to him or that he fails to produce the bill/cash memo or the licence for the sale of such item, he can be proceeded against under the provisions of the Drugs and Cosmetic Act, 1940 by the Drug Inspector in accordance with the provisions of the said Act. Section 21 of the Act in hand is not attracted for such violation or contravention.

As regards the plea that the preparation in question is being widely used for intoxication purposes, this fact in itself is not enough for the prosecution of the petitioner. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all - kinds of intoxicating substance It may be stated that all penal statutes ought to construe strictly, that is to say, that the Court must say that the thing charged as an offence is within the plain meaning of the words used and must not strain the words so as to bring it within mischief of the statute. Maxwell on interpretation of Statutes, 12th Edition at page 239, says, the strict construction of penal statutes seems to manifest itself in four ways, in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.

It may be stated that Section 21 provides for punishment for contravention in relation to certain manufactured drugs and preparation Phensedyl being excepted under Item No. 35 of the Notification reproduced above is out of the reach of this section. The mere apprehension of the prosecution that this drug, which is meant for the treatment of dry cough is also being misused by drug addicts, is not enough in the eye of law to bring the same within the mischief of Section 21 of the Act. Therefore, even all the allegations contained in the First Information Report in question are assumed to be correct, no offence u/s 21 of the Act is made out and the First Information Report in question is liable to be quashed.

For the reasons mentioned above, this petition is allowed. First Information Report No. 48, dated 154-1995 registered at Police Station, Ghal Khurad under Sections 21/61/85 of the Act and the subsequent proceedings in pursuance thereof, if any, are hereby quashed. The seized goods in this case if not already released, are directed to bereturned to the petitioner forthwith.