State of Haryana vs Naresh Kumar

V.S. Aggarwal, J.

By this common judgment both Criminal Revision Nos. 470 of 1987 and 477 of 1987 can conveniently be disposed of together. Since the controversy revolves around identical questions, the facts are being mentioned from Criminal Revision No. 470 of 1987 titled State of Haryana v. Naresh Kumar.

The relevant facts are that on 17.11.1985 ASI Nathu Ram accompanied by other constables were going to village Anta in connection with investigation of a case arising out of FIR No. 395/1985 with respect to offences punishable under Sections 457/380 IPC, Police Station Safidon. When they reached Khansar Chowk at 10.15 a.m. secret information was received that respondent was practising as a Medical Practioner and he keeps in his possession intoxicating tablets. On the basis of information, it was considered that the respondent had contravened the provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). A ''ruqa'' was sent to the police station. Thereafter the respondent was arrested and interrogated. He made a disclosure statement that he has kept in a plastic bag certain tablets. In pursuance of that statement, the respondent got recovered 125 tablets. 10 tablets were taken as the sample. The sample and the remaining tablets were sealed into separate parcels and taken into possession vide a recovery memo. The parcels were deposited in the Malkhana. Subsequently, the representative sample was sent for chemical analysis. The report of the Chemical Analyst revealed that it contained diazepam. The investigation concluded that it contravened the provisions of the Narcotic Drugs & Psychotropic Substances Act. Report under Section 173 Cr.P.C. was filed.

The learned Judicial Magistrate committed the case to the Court of Sessions. The learned Sessions Judge, Jind vide the impugned order held that diazepam though a psychotropic substance, could be possessed particularly when the respondent had the licence under the Drugs and Cosmetics Act, 1940. It was held that provisions of Section 8 of the Act had not been contravened. The respondents accordingly were discharged. Aggrieved by the said order, the State has preferred the present revision petitions.

The short question that comes up for consideration is as to if possessing of diazepam would be contravening the provisions of the Act or not ? Learned State counsel urged that it was psychotropic substance. The respondents did not have the licence to possess the same under the provisions of the Act and, therefore, the learned Sessions Judge was in error while discharging the respondents.

In this regard reference can well be made to "psychotropic substance" in Section 2(xxiii) of the Act. It reads :

"2(xxiii). "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule."

The definition of the "psychotropic substance" mentioned above clearly shows that the same have been specified in the Schedule appended to the Act. In the Schedule annexed with the Act, diazepam occurs at serial No. 43. Therefore, it must be held that diazepam is a psychotropic substance.

However, merely because it is a psychotropic substance, will not permit the respondents to urge that it would be punishable under the provisions of the Act. Section 8 of the Act reads :

"8. Prohibition of certain operations. No person shall

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import interState, export interState, import into India, export from India or transship 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 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 :

Provided that, and subject to the other provisions of this Act and the rules made thereunder the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import interState and export interState of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, be notification in the Official Gazette, specify in this behalf.

(Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.)

The provisions of Section 8 of the Act ban possession of psychotropic substances but it also clarifies that it can be possessed for medical and scientific purposes and also to the extent provided by the provisions of the Act and the Rules. Furthermore, Section 9 of the Act gives the powers to the Central Government to permit, control and regulate the psychotropic substances. Clause (vi) makes the position clear, subject to provisions of Section 8, the Central Government can by Rules regulate pertaining to manufacture, possession and transport of psychotropic substances. It follows from above that it is not all psychotropic substances which are prohibited. The possession can be regulated and restored in terms of the rules.

The Narcotic Drugs and Psychotropic Substances Rules, 1985 have been drawn in exercise of powers under Sections 9 and 76 of the Act. Rules 64 and 66 of the said Rules are relevant and are being reproduced below for the sake of facility :

"64. General prohibition. No person shall manufacture, possess, transport, import interState, export interState, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I.

......

Possession, etc. of psychotropic substance. (1) No person shall possess any psychotropic substance for any of the purpose covered by the 1945 Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under these Rules.

(2) Notwithstanding anything contained in subrule (1), any research institution, or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorised under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person :

Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time.

(3) The research institution, hospital and dispensary referred to in subrule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession."

The said rules reproduced above clinche the matter in favour of the respondents. Under Rule 64 no person is to manufacture or possess a psychotropic substance which is specified in Schedule I. In Schedule I diazepam is not mentioned. It shows that possession of diazepam is not prohibited under the rules. Corelated with the same is Rule 66 of the said Rules. A person has to be lawfully authorised to possess psychotropic substances. But Rule 64 will govern Rule 66 of the said Rules. When there is no prohibition under Rule, 64, Rule 66 will have little application. It must be mentioned that under the Drugs and Cosmetics Act and Rules, it was not disputed that the respondents had the licence. The diazepam occurs in the Drugs and Cosmetics Rules, 1945. Since there was no specific prohibition under the Narcotic Drugs and Psychotropic Substances Act and the Rules and the respondents did have the licence under the Drugs and Cosmetics Act and the Rules, the conclusion is inescapable that possession of diazepam would not be an offence.

For these reasons, the learned trial court must be held to have rightly discharged the respondents. The revision petitions being without merit must fail and are dismissed.