Surinder Kumar vs State of Punjab

G.S. Chahal, J.

Surinder Kumar has come to this Court in this revision against the orders dated 14.6.1991 passed by Shri Maghar Khan, Additional Sessions Judge, Bhatinda vide which the petitioner was charged for offences under Section 21 and 22 of the ND and PS Act (hereinafter referred to as the Act).

The petitioner has been sent up for trial on the allegations that on December 13, 1990, S.I. Darshan Singh acting on a secret information that the petitioner was in the habit of keeping and selling intoxicant tablets, carried out a raid at the chemist shop being run by the petitioner. On the basis of the information supplied by the petitioner, three boxes of plastic each containing 1300 intoxicant tablets were recovered. Samples were drawn and one of the samples was sent to the Forensic Science Laboratory, from where it was confirmed that the same contained codeine, which is a derivative of opium. On the basis of this report the petitioner was sent up for trial.

The report of the Forensic Science Laboratory showed that the tables carried weight of 0.214 grams each and on analysis, it was found that the packet No. 3 contained Codeine in the form of codeine phosphate to the extent of 69% packet No. 2 and packet No. 3 to the extent of 7.0 and 7.1% respectively. The Senior Superintendent of Police got clarification from the Scientific Officer, who confirmed that since Codeine was a derivative of opium the tablets were covered by the Clause XVI (C) of Section 2 (Definition) of the Act.

The petitioner claims that the tablets were a manufactured drug and did not contain more than 100 mgs. of Codeine per dosage unit and as such was not covered by the definition relied upon by the prosecution. Relevant part of the notification No. S.O. 826 (E) dated November 4, 1985 published 14.11.1985 PP 611 No. 2/86F. N. 664/8/86 OPIUM by the Ministry of Finance (Department of Revenue) is as follows :

"S. O. 826(E), In Exercise of the powers conferred by subclause (b) of clause (xi) of Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declares the following Narcotic substances and preparations to be manufactured drugs, namely :

(1)

(7) Methyl morphine (commonly known as Codeine and Ethyl morphine and their sales (including Dionine), all dilutions and preparations, except those which are compounded with one or more ingredients and containing not more than 100 milligrams of the drugs per dosage unit and with concentration of not more than 25 per cent in undivided preparations and which have been established in therapeutic practice."

Worked out on the basis of the Forensic Science Laboratory report, each tablet will contain only 15 mgs of codeine and these drugs are thus saved by the notification referred to above and the recovered drugs thus cannot be considered to fall in the definition of opium as contained in the Act. No offence under the NDPS Act is thus made out against the petitioner who is running a chemist shop.

I hereby accept the petition and quash the charges framed against him. He shall stand discharged.