Kashmir Singh vs State of Punjab

Nawab Singh, J.—Challenge is to the order dated July 1st, 2005 passed by Special Judge, Moga, whereby, petitioner was ordered to be charged u/s 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ''the NDPS Act'') and was chargesheeted accordingly. On April 7th, 2005 petitioner was intercepted by Darshan Singh, Assistant Sub-Inspector, Police Station Kot Ishe Khan, District Moga. He was carrying a bag. Search of the bag was made. It was found containing 100 injections of G-Norphine and 1000 tablets of Phenotil without valid licence. He was arrested. Chargesheet/challan against him was filed u/s 21 of the NDPS Act.

Learned counsel for the petitioner has submitted that in view of the report of Deputy Director (Toxicology), Forensic Science Laboratory, Chandigarh (Annexure P-2), offence u/s 21 of the NDPS Act is not made out against the petitioner because the recovered are manufactured drugs and in view of the notification dated November 14th, 1985 in which a declaration had been made in terms of sub clause B of clause (xi) of Section 2 of the NDPS Act identifying various narcotic substances and preparations to be manufactured drugs and the letter written by Government of India, Ministry of Finance (Department of Revenue), Narcotics Control Bureau (Annexure P-4).

The samples of injections and the tablets were sent to Forensic Science, Laboratory Punjab, Chandigarh. Vide its report dated April 26th, 2005 (Annexure P-2), it was found as under:-

Diphenoxylate Hydrochloride

2.5

-

Atrapine sulphate

0.025

-

Buprenorphine

-

0.29

Item No. 58 of the notification dated November 14th, 1985 is reproduced as under :-

(58) Ethyl 11-(3- Cyano-3,3 diphenylpropyl) 4-phenylpiperidine 4- carboxylic acid ehyl ester (the intentional non proprietary name of which is Diphenoxylate), and its salts and preparations, admixtures, extracts or other substances containing any of these drugs, except preparations of diphenoxylate containing, per dosage unit, not more than 2.5 mg. of diphenoxylate calculated as base, and a quality of atrophine sulphate equivalent to at least one per cent of the dosage of diphenoxylate.

A plain reading of item No. 58 of the notification reveals that if the dosage per unit is less than 2.5 mg, the same would not come within the definition of ''Manufactured drug'' and as such, the provisions of the NDPS Act would not be applicable.

Admittedly, diphenoxylate recovered from the petitioner which could possibly have fallen within the definition of ''Narcotic'' was not more than 2.5 mg. The said item further says that a quality of atrophine sulphate equivalent to at least one per cent of the dosage of diphenoxylate would also not come under the definition of ''Manufactured Drug''. Not only that, letter (Annexure P-4) has clarified that as per the list in the schedule to clause (xxiii) of Section 2 of the Act, Buprenophine which was found in the injection does not fall under the definition of ''Psychotropic Substance'' It is pertinent to mention here that no meaningful argument was addressed by the state counsel to refute the above legal and factual position. Support to this view can also be had from the judgment passed by this Court in Deep Kumar v. Stale of Punjab 1997 (2) RCR (Cri.) 417 wherein FIR u/s 21 of the Act was quashed on the same grounds. In view of this, the revision petition is accepted and the order under challenge is set aside. However, the prosecution is at liberty to prosecute the petitioner under the Drugs & Cosmetics Act, 1940 if any offence is made out there under.