State of Punjab vs Wazir Ali and Others

R.P. Nagrath, J.—The State of Punjab has come up in revision seeking to challenge the order dated 10.12.2012, passed by the learned Judge, Special Court, Sangrur, discharging the private respondents against whom challan was filed in FIR No. 136 dated 05.06.2012 registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act of 1985'') at Police Station City, Sangrur.

The respondents were apprehended by the police party while being found in possession of 105 phials of Rexcof Cough Syrup each weighing 100 ml. Therefore, the total weight of Rexcof Cough Syrup would be 10,500 ml equivalent to almost 10 kgs of the quantity which is a huge recovery of commercial quantity of contraband. Samples were drawn and as per report of the Chemical Examiner, the sample was found containing 9.7 mg/5ml per dosage of Codeine Phosphate.

The learned trial Judge observed in the impugned order that as per entry No. 35 of the notification dated 14.11.1985, all dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more than 100 miligrams of the drug as per dosage unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice do not fall under the mischief of the provisions of the Act of 1985.

I have heard learned State counsel, learned counsel appearing for all the three respondents-accused and perused the paper-book.

I find that the learned Lower Court was mainly swayed with the opinion of the Drug Inspector that Chlorpheniramine Melate to the extent of 3.6 mg/5ml is not covered by the provisions of the Act of 1985. It was otherwise not indicated that report of the Drug Inspector also related to the presence of Codeine Phosphate per dosage unit and being less than 100 mg is not covered under the Act of 1985. Anyhow, the lower Court was not supposed to follow only the opinion of Drug Inspector as basically the interpretation of provisions of the Act of 1985 and the Rules framed thereunder were involved. The matter has been set at rest by a Division Bench of this Court in Inderjeet Singh Vs. State of Punjab, (2014) 3 RCR(Criminal) 953 . It was held as under:--

"36. The manufactured drugs of which there has been a contravention in the present cases have been sold, purchased, distributed, stored, transported, carried etc. in a bulk form and mostly these are without proper licences or authorizations. In respect of such drugs which are carried in bulk form, the notification dated 18.11.2009 would apply and the question that these drags contain an exception would not be applicable as the exceptions would apply when the drugs are for medicinal or therapeutic use. Besides, the quantity of manufactured drugs is not to be determined on per capsule basis when these are carried without proper licence or authorization. In other words, the mere dosage of the manufactured drug in one capsule is not to be considered but the dosage in the number of capsules together is to be considered for the purpose of determining as to whether the exceptions provided in the notification dated 14.11.1985 declaring the narcotic substances and preparations as mentioned therein to be manufactured drugs. Moreover, in case of contravention of Section 21 N.D.P.S. Act relating to manufactured drugs, Note 4 of the notification 18.11.2009 would apply that is to say that the quantity in respect of which there is a contravention is ''small quantity'', ''lesser than commercial quantity but greater than small quantity'' or ''commercial quantity'' is to apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form etc. wherever existence of such substance is possible and not just its pure drug content. Therefore, the question of exceptions being provided in respect of drugs at serial No. 16, 35, 36, 37, 48, 58, 70, 76, 83 and 87 of the notification dated 14.11.1985 is inconsequential when these drugs are carried in a bulk form and the entire quantity of the bulk is to be taken into consideration and not per dosage specially when these are carried in violation of the D&C Act and the 1945 Rules that is to say are sold, purchased, distributed, stored, transported, carried etc. without a valid licence or kept without a valid authorization.

37 to 43 xxxx

The common drugs that are mostly misused for purposes other than medicinal and therapeutic use are drugs like Codeine, Dextropropoxyphene and Diphenoxylate. These are mentioned at serial Nos. 132, 146 and 156 respectively in Schedule ''H'' of the 1945 Rules, and are also mentioned at serial Nos. 28, 33 and 44 respectively in the notification specifying small quantity and commercial quantity of drugs by making a reference to clause (vii a) and (xxiii a) of Section 2 of the NDPS Act. Besides, these are also mentioned at serial Nos. 35, 87 and 58 respectively of the notification dated 14.11.1985. Other drugs which are commonly misused are ''Alprazolam, Chlordiazepoxide, Delorazepam, Diazepam and Buprenorphine'' which are ''psychotropic substance'' and are mentioned at serial Nos. 30, 36, 42, 43 and 92 of the Schedule to the N.D.P.S. Act with reference to clause (xxiii) of Section 2 of the NDPS Act. These are commonly and widely misused by drug traffickers for clandestinely indulging in drug trafficking to give an intoxicating or stimulating effect and not for medicinal or therapeutic use. Drug addicts are known to take huge discharge of these drugs at a time and even drug manufacturers are packing 100 tablets of pouch/bottles packing of some such drugs though some of them even fall under Schedule ''H'' drug of the 1945 Rules and are to be sold in retail on a prescription by a registered medical practitioner only or are to be supplied to registered medical practitioners, hospitals, dispensaries and nursing homes against signed order in writing which are to be preserved by the licencee for a period of two years in terms of Rule 65(9)(a) and (b) of the 1945 Rules which reads as under:--

(9)(a) Substances specified in Schedule H or Schedule X shall not be sold by retail except on and in accordance with the prescription of a Registered Medical Practitioner and in the case of substances specified in Schedule X, the prescriptions shall be in duplicate, one copy of which shall be retained by the licensee for a period of two years.

(b) the supply of drugs specified in Schedule H or Schedule X to Registered Medical Practitioners, Hospitals, Dispensaries and Nursing Homes shall be made only against the signed order in writing which shall be preserved by the licensee for a period of two years."

Against entry No. 28 of the Schedule to the Act of 1985 possession of more than 1kg of contraband is commercial quantity.

It was further held in Inderjeet Singh''s case (supra) that merely because the prosecution for a violation of the provisions of Drugs and Cosmetics Act and the Rules framed thereunder entails some kind of penalty would not be a bar to trial of cases in respect of which there has been a contravention of Section 21 of the NDPS Act. It was ultimately held by the Division Bench that the possession of quantity of bulk would be an indication that it is not for medicinal or therapeutic use but is sought to be misused by drug addicts and drug traffickers and would be treated as applicable to the entire quantity recovered of any one or more narcotic drug or psychotropic substance of that particular drug in dosage forms and not just its pure drug content. In the present case, it was not the version of the respondents-accused that they were holding any authorization/licence to keep in possession such a huge quantity of Rexcof Cough Syrup containing Codeine Phosphate.

Learned counsel for the respondents, however, referred to similar proposition discussed by the same Judge, Special Court, Sangrur, in relation to FIR No. 135 dated 02.06.2012 registered under Section 22 of the Act of 1985 at Police Station City, Sangrur and handed over the copy of order dated 20.10.2012 and also the copy of order dated 26.04.2013 passed by this Court in CRR-1182-2013 preferred by the State. That was a case where the accused-person was holding 4000 intoxicating tables of Phenotil, 400 capsules of Parvon Spas, 400 tablets of Carisoma and 60 phials of Rexcof. The contents of the phials were found to having Codeine Phosphate to the extent of 9.7 mg/5 ml dosage. In that case the accused person was discharged. This Court dismissed the revision (CRR-1182-2013) filed by the State of Punjab on 26.04.2013.

I have given my thoughtful consideration to the aforesaid contentions and is of the considered view that the law as discussed and laid down by the Division Bench of this Court in Inderjeet Singh''s case (supra) is to be considered as law of the land. All these salts as discussed in the case of State of Punjab v. Surjit Kaur @ Nikki (CRR-1182-2013), have been elaborately dealt by the Division Bench of this Court in Inderjeet Singh''s case (supra) and the principle laid down by this Court do not find favour with the contention of respondents.

The impugned order is not in conformity with the latest notification prescribing the schedule of the narcotic drug and psychotropic substance. Vide notifications S.O. 1055 (E), dated 19.10.2001 and S.O. 2941 (E) dated 18.11.2009 issued by the Central Government, so as to add Note 4 after Note 3 to the table specifying ''small quantity'' and ''commercial quantity'' of narcotic drugs and psychotropic substances and this Note reads as under:--

"(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."

The impugned order, therefore, is illegal and deserves to be set aside. The instant revision is allowed by setting aside the impugned order for discharge passed by the learned Judge, Special Court, Sangrur.

The parties are directed to appear before the trial Court on 07.07.2015 and the trial Court would proceed further to dispose of the matter, in accordance with law.

In case, the respondents fail to appear before the trial Court on the said date, the trial Court would be at liberty to issue their arrest warrants. The respondents would also furnish fresh bail bonds to the satisfaction of trial Court on their putting in appearance before the trial Court on 07.07.2015.