Tejinder Singh @ Monto vs State of Punjab

V.S. Aggarwal, J.

Tejinder Singh petitioner seeks quashing of the FIR No. 61 dated 8.8.1995 registered at Police Station Sultanwind, Amritsar. It pertains to offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. The petitioner also seeks quashing of the charge framed against him.

The relevant facts are that one Jaspal Singh alias Billa had a medical store at Tarn Taran Road, Amritsar. Information had been received that he brings narcotic drugs injections and capsules in his Maruti car after purchasing the same from Monto Medical Store, Katra Sher Singh, Amritsar. Tejinder Singh is alleged to be the proprietor of Monto Medical Store. It was recorded that said Jaspal Singh sells the articles to innocent people on higher price. It is a risk to the lives of the people. On this information the first information report was recorded. The premises of Monto Medical Store were raided. 100 injections of Binorphin and 1000 tablets of Sudhinol were recovered from the shop of the petitioner who was arrested on 11.8.1995. After completion of the investigation, challan has been presented against the petitioner and another. As against the petitioner, the charge framed is :

"Secondly, on 11.8.1995 in the area of Katra Sher Singh, Amritsar, Tejinder Singh accused was found keeping in your store named as Montu Medicos Store i.e. 10 injections of Binortin, 1000 tablets of Sudhinol, without any permit or licence and thereby you committed an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and within my cognizance."

It is contended that the petitioner is a licence holder. The report of the Public Analyst indicates presence of Buprenorphine to the extent of 0.31 mg. per mili litre and Sudhinol contained Dextro Propoxyphene Hydrochloride to the extent of 66 mgs. per tablet. It does not exceed the prescribed limit and consequently possession of the same is not an offence. Needless to say that the petition has been contested.

There was no controversy raised that M/s Montu Medical Store was a licence holder to sell and stock the drugs specified under Schedule 10 of the Drugs and Cosmetic Rules, 1955. The short question agitated has been as to whether the two articles regarding which the charge has been framed would attract the rigors of Section 21 of the Narcotic Drugs and Psychotropic Substances Act or not. The same are injections of Binorphin and tablets of Sudhinol.

In this regard the report of the Forensic Science Laboratory, Chandigarh can well be referred to. With respect to the tablet of Sudhinol, the report indicates :

"6. Articles received, : One parcel sealed with five seals of A.S. alleged to contain intoxicating tablets. Seals were found intact and tallied with the specimen seal impression. On opening the parcel it was found to contain one strip of tablets labelled as SUBHIMO. The strip contained 10 tablets of sunset yellow colour. Average weight = 489 mg. per tablet.

Purpose of reference : Analysis and report.

Identification and tests :

Dextropropoxyphene :, Present.

Hydrochloride ion : Present.

Paracetamol : Present.

Quantity of Dextro Propoxyphene Hydrochloride : Average 66.0 mg. per tablet.

Quantity of Paracetamol : Average 320 mg. per tablet."

In other words it was found that Dextropropoxyphene Hydrochloride was found to be 66.0 mg. per tablet. Pertaining to Binorphin injections the report, copy of which is Annexure P4 reads :

"6. Articles received., : : One parcel sealed with five seals of A.S. which was alleged to contain intoxicating injection. Seals were found intact and tallied with specimen seal impression.

On opening the parcel, it found to contain one cardboard dabi levelled as BINORFIN which contained 10 ampoules, each ampoule labelled as BINORFIN. Each ampoule contained 2 ml. of colourless liquid.

Purpose of reference : Analysis and report.

Identification and tests :

Buprenorphine : : Present.

Hydrochloride ion : : Present.

Quantity of Burprenorphine : Average 0.31 mg. per ml. hydrochloride."

Herein the quantity of Buprenorphine was average 0.31 mg. per mili litre.

The matter in question is concluded by the decision of this Court in the case of Deep Kumar v. State of Punjab, 1997(2) RCR 417. Therein also Binorphin injections and Sudhinol tablets had been recovered. Binorphin injection fell in Parcel No. 1 noted in the abovesaid judgment. In this regard it was held :

"Now we are left with parcels Nos. 1 and 6 which were found to contain Binorfin and Norphen injections. On an analysis, each injection in parcel No. 1 was found to contain 0.32 mg. of Burprenorphine. The contents of parcel No. 6, on analysis, were found to contain 0.3 mg. of Burprenorphine. This psychotropic substance does not fall within the ambit of Schedule I annexed to the Narcotic Drugs and Psychotropic Substance Rules, 1985, but is found to contain in Schedule III thereof. This substance, being not covered by Schedule I of the Rules, shall be governed by the Drugs Act and the Rules framed thereunder. The quantity of Burprenorphine has been found within the permissible limit and the petitioners were possessed with a valid Drug Licence to keep and dispense such injections. Therefore, it cannot be said that the possession of Binorfin and Norphen injections was in contravention of Section 22 of the Narcotic Act.

So far as Sudhinol tablets were concerned, they were at parcel No. 16 and the findings recorded were :

"Coming the parcels Nos. 2, 7, 8, 12, 14, 15 and 16, the contents thereof were DeparovonN, Buta Proxyvon, Proxyvon, Subhimol, ProxyvonN, Dextrovon and Sudhinol. Each of these drugs, inter alia, contained Dextropropoxyphene Hydrochloride weighing 30 mg., 34.5 mg., 65 mg., 65 mg., 32 mg., 36 mg., and 65 mg. Caluse 87 of the notification No. SO 826 (E) dated 14.11.1985 (supra) reads as under :

"(87) (+)4dimethylamino1, 2diphenyl3methy12butanol propionate, (the international nonproprietary name of which is Dextropropoxyphene), and its salts, preparations, admixtures, extracts, and other substances containing any of these drugs, except preparations for oral use containing not more than 135 milligrams of Dextropropoxyphene base per dosage unit or with a concentration of not more than 2.5 per cent in undivided preparations, provided that such preparations do not contain any substances controlled under the Convention on Psychotropic Substances, 1971."

From a perusal of this clause, it is evident that the presence of 135 mg. of Dextropropoxyphene base per dosage unit is excepted from the ambit of the "manufactured drugs" for the purposes of this Act provided the preparation does not contain any substance controlled under the Convention on Psychotropic Substances, 1971. None of the 7 substances falls in any of the 4 Schedules annexed to the Convention on Psychotropic Substances, 1971. The presence of Dextropropoxyhene per dosage unit in all the seven substances is within the permissible limit i.e. 135 mg. Therefore, all the 7 substances fall within the excepted category of the "manufactured drugs".

With respect to the Binorphin injection this Court returned the findings that position did not attract Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act. As regards Sudhinol tablets the prescribed limit of 66.0 mg. per tablet was well below the prescribed limit. Therefore, Sections 21 and 22 of the said Act could not be attracted. There is no ground, thus, to take a different view against the decision in the case of Deep Kumar (supra). As a result thereto, it must be held that qua the petitioner who was a licenceholder there is no valid ground to frame the charge. No prima facie case taking the assertions of the prosecution could be drawn.

For these reasons, the revision petition is allowed. The impugned order passed by the trial court is set aside and the petitioner is directed to be discharged.