Sri Sankar Sarkar vs State of West Bengal & Ors

Tapabrata Chakraborty, J.

The present writ application has been preferred primarily praying for the following relief:

(a) A writ and/or order or orders and/or direction or directions in the nature of certiorari commanding the respondents and each of them to transmit

and certify the records of the case before this Hon’ble Court so that conscionable justice may be done by quashing the entire criminal proceeding

being Bhaktinagar Police Station case no. 418 of 2018 dated 15.06.2018 under Sections 22(c) and 23(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 forthwith;

The petitioner is the proprietor of a firm, namely, M/s. Advanced Health Care carrying on business to sell, stock or distribute by wholesale drugs

other than those specified in Schedule-C, C(1) and X of the Drugs and Cosmetics Rules, 1945 (in short, the D&C Rules) framed under the Drugs and

Cosmetics Act, 1940 (in short, D&C Act) on the strength of licence under the D&C Rules and certificate of enlistment issued by the Licence

Department, Howrah Municipal Corporation (in short, HMC). The petitioner procured 24000 bottles of Relaxcof cough syrup from the respondent

no.12. As per the requisition and placement of order dated 4th June, 2018 issued by the respondent no.13, the petitioner sent 3600 bottles (100 ml

each) of Relaxcof cough syrup having batch no.BG18004 through the respondent no.15, the distributor on 7th June, 2018. Similarly as per the

requisition and placement of order dated 2nd June, 2018 by the respondent no.14 the petitioner sent 4800 bottles of Relaxcof cough syrup having batch

no.BG18004 through the respondent no.15 on 7th June, 2018. Thereafter on 23rd June, 2018 the petitioner was communicated a notice under section

41-A of the Code of Criminal Procedure (in short, the said Code) by the investigating officer in connection with Bhaktinagar P.S. Case No.418 of

2018 dated 15th June, 2018 under Sections 22(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, NDPS Act). The

petitioner thereafter came to learn that the respondent no.4 along with other police personnel searched the godown of the respondent no.15 at Siliguri

on 15th June, 2018 at about 16:45 hrs. and seized 17 cartons of Relaxcof cough syrup (total 8400 bottles) and accordingly Bhaktinagar P.S. Case

No.418 of 2018 was initiated on the basis of the complaint of the respondent no.4.

Mr. Ray, learned advocate appearing for the petitioner submits that the allegations made in the FIR even if they are taken at their face value and

accepted in their entirety, do not prima facie constitute any offence under Sections 22(c) and 23(c) of the NDPS Act in view of the exemption given

in item no.35 of Government of India notification S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 29.01.1993 dated 14th November, 1985 (in

short, the said government notification) and as such the entire criminal proceeding needs to be quashed.

According to him, the action taken by the police authorities causes unreasonable restriction in carrying on the business of wholesale drugs by the

petitioner and such action is patently illegal and vitiated by unbridled and unfettered discretion, malafide and violative of Article 19(1)(g) of the

Constitution of India.

He further submits that ‘Codeine’ does not fall within the meaning of psychotropic substance, as defined under section 2(xxiii) of the NDPS

Act and each 5 ml of Relaxcof cough syrup of 100 ml sealed bottle which contains 10 mg Codeine Phosphate IP cannot be classified as narcotic drug

in view of the exemption given in item no.35 of the said government notification.

He further submits that the police authorities have neither delved deep into the issue nor have consulted with the respondent nos.6, 7 and 8, the

officers of Narcotic Control Bureau nor have taken any clarification from the Deputy Director, Drugs Control, Siliguri, the respondent no.11 herein as

to whether Relaxcof cough syrup of 100 ml sealed bottle in which each 5 ml contains 10 mg Codeine Phosphate IP falls within the meaning and

definition of narcotic drug under the provisions of the NDPS Act, 1985 and as such the respondent no.4 described the seized article as “contraband

medicineâ€​ in the complaint.

Drawing the attention of this Court to the definition of “manufacture†in section 2(xi) and the definition of “narcotic drug†in Section 2(xiv)

of the NDPS Act, he submits that in view of the exemption granted in item no.35 of the said government notification the composition of methyl

morphine (commonly known as ‘Codeine’) and ethyl morphine and their salts (including Dionine) in the cough syrup does not contain more than

100 mg of the drug per dosage unit and as such the ingredients of Sections 22(c) and 23(c) do not stand fulfilled for initiation of the proceeding.

Section 22(c) of NDPS Act is relatable to psychotropic substance and codeine has not been given in the list of psychotropic substance as mentioned in

the schedule of the NDPS Act.

Drawing the attention of this Court to Rule 97E of the D&C Rules, he submits that the drug formulation has been appropriately labelled in the bottle

with the symbol Rx and the same has been printed in red and conspicuously displayed on the left of corner of the label and as such the same could not

have been seized and no proceeding could have been initiated on the basis thereof. In support of the arguments advanced reliance has been placed

upon the judgments delivered in the case of State of Haryana and Ors. vs Ch. Bhajanlal and Ors., reported in 1992 Supp(1) SCC 335 and in the case

of Manzar Sayeed Khan vs State of Maharashtra and Another, reported in (2007) SCC 1.

Mr. Sen, learned advocate appearing for the Sate respondents submits that the petitioner’s name does not feature in the FIR as an accused

person. A notice under Section 41-A of the said Code was issued to the petitioner requesting him to appear along with all relevant documents related

to the case. Investigation is in progress in the said criminal case and the investigating agency has also sought for necessary reports from the forensic

science laboratory. At this juncture question of any interference with the investigation does not occasion and the Court in exercise of its discretionary

jurisdiction cannot go into the veracity of the factual position and cannot conduct any roving enquiry.

He further submits the issue as to whether the composition of Relaxcof cough syrup comes within the exemption as provided under item no.35 of

the said government notification needs to be ascertained upon availing appropriate reports from the competent authority under the NDPS Act and the

FSL report, as already sought for by the investigating agency. In the midst of such investigation, the proceeding cannot be quashed.

The learned advocate appearing for the respondent no.15 submits that the Relaxcof cough syrup has been manufactured by a licensed

manufacturer, stocked by a licensed stockist in a licensed premises and such action does not constitute any offence punishable under the NDPS Act.

The bottles of the cough syrup have been labelled in consonance with the provisions of Rule 97E of the D&C Rules and as such the allegations in the

FIR are inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is a sufficient ground for proceeding

against the accused. In support of such contention reliance has been placed upon the judgment delivered in the case of Ashok Kumar Thru (Brother)

Rakesh Kumar Pawar â€"vs- Union Of India Thru Ministry Of Home New Delhi And Ors.

In the FIR it has been stated that 70 cartons of Relaxcof cough syrup which contains mixture of codeine phosphate & chlorpheniramine maleate,

manufactured by Bio Genetic Drug Pvt. Ltd, were seized and that during interrogation one Rajib Kumar Das confessed that he had ordered the

consignment and he could not produce valid documents towards transportation. Each 5 ml of the cough syrup contains 10 mg codeine phosphate and

04 mg chlorpheniramine maleate and prior to the tests to be conducted in course of investigation, it cannot be ascertained as to whether such

combination comes within the exemption as provided under item no.35 of the said government notification.

When there are only allegations and recriminations, the Court cannot anticipate the result of such investigation and render a finding on the question

of mala fide on the materials at present available. It would be improbable to issue the direction, as sought for by the petitioner, amounting to a

mandamus to close the case before the investigation is complete.

It does not seem to be a case where the Investigating agency has over-zealously taken any hasty decision by misusing its position in registering the

case and commencing the investigation or had proceeded carte blanche drawing no legal bounds. The gravamen of accusation also does not appear to

be originating from any personal animosity or political vendetta.

Though the learned advocate appearing for the petitioner has argued the issues touching the merits of the case by referring to several documents

and decisions but in my view, it is wholly unnecessary to enter into the factual arena. This Court in exercise of its discretionary jurisdiction cannot go

into the veracity of the factual position and cannot conduct a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is

conducting a trial. Such jurisdiction is required to be exercised sparingly, carefully and with caution and that too in the rarest of rare cases. Thus,

quashment of the proceeding at this stage would not be appropriate. It is, however, made clear that this Court has not offered any observation on the

merits of the case.

In the facts of the present case, neither any mala fide nor any inherent improbability is attributable to the action of the respondents and as such the

guidelines as detailed in paragraph 105 of the judgment delivered in the case of Bhajan Lal (supra) have no manner of application. The judgment in the

case of Ashok Kumar (Supra) was delivered in a fact situation where charges had been framed upon conclusion of investigation and as such the same

is distinguishable on facts.

Upon considering the materials on record and the contents of the FIR, I am unable to opine that that the criminal proceeding is liable to be quashed

at this stage of investigation and as such this Court is unable to grant the reliefs, as prayed for in the writ petition.

Accordingly, the writ petition is dismissed. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if

applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.