Vinod Kumar vs State of Punjab

Nawab Singh, J.—By this petition, u/s 482 of Code of Criminal Procedure, Petitioner seeks quashing of First Information Report (for short ''FIR) No. 149 dated September 25th, 1999 registered under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act"), Police Station A Division, District Amritsar.

On September 25th, 1999 Petitioner was apprehended by Station House Officer, Police Station A Division, Amritsar while he was carrying a bag containing 12 injections of Phenirmine Maleate IP Mexafen and 10 bottles of Diazepam injections without valid licence. The Petitioner was arrested.

Learned State counsel has stated that so far as possession of 12 injections of Phenirmine Maleate IP Mexafen is concerned, it does not fall under the NDPS Act. However, possession of 10 injections of Diazepam contravenes the provisions of the Act because this drug is mentioned at serial No. 43 in the list of ''Psychotropic Substances'' in the schedule to the Act.

On the other hand, learned Counsel for the Petitioner has urged that in schedule H to the Drugs and Cosmetics Rules, 1945 under the heading ''Prescription Drugs'' Diazepam has been shown at Serial No. 147 and Rule 65-A of the NDPS Rules says that no person would sell, purchase, consume or use any psychotropic substance except in accordance with the Rules. Meaning thereby that this medicine could be sold, of course, after having a valid licence under the Drugs & Cosmetics Act, 1940. In view of this, possession of this medicine does not fall under the Act.

In State of Uttranchal v. Rajesh Kumar Gupta 2006 (4) RCR (Cri) 974 accused-Respondent therein was an Ayurvedacharya. He used to operate from two clinics. A raid was conducted on the allegation that in his medicines, he had been using unlabeled tablets containing psychotropic substance making the unsuspected patients addicted to the drugs. A few medicines were recovered. He filed application for bail which was accepted by the High Court. Against the said order of the High Court, SLP was filed before the Hon''ble Supreme Court by the state of Uttranchal. The same was dismissed. While dismissing the petition, it was observed by the Hon''ble Supreme Court as under:

Respondent admittedly possesses an Ayurveda Shastri degree. It is stated that by reason of a notification issued by the State of Uttar Pradesh dated 24.2.2003, the practitioners of Ayurvedic system of medicines are authorised to prescribe allopathic medicines also. Respondent runs a clinic commonly known as ''Neeraj Clinic''. He is said to be assisted by eight other medical practitioners being Allopathic and Ayurvedic doctors. It is also not in dispute that only seven medicines were seized and they are mentioned in Schedules G and H of the Drugs and Cosmetics Act. In this regard, we may notice the following chart:

S. No.

Medicine seized

Schedule H Drugs & Cosmetics Act

The Schedule 1985 Act

Schedule I 1985 Rules

Epilan C.

-

1.

Epilan C. Phenobarbi tone

Yes

Entry 69

-

2.

Phensobar - 50

Yes

-

-

3.

Chlorodiazepoxide

Yes

-

-

4.

Carbin

Yes

-

-

5.

Wefere (ayurvedic)

-

-

-

6.

Phenso (Schedule - G) -

-

-

-

7.

Epibar - 30

Yes

-

-

It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Act. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlorodiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in the Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences there under.

In view of the fact that all the drugs being Item Nos. 1, 2, 3, 4, 6 & 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Act indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes".

No contrary provision of law has been cited by the counsel for the State to the above proposition of law that the drugs seized from the possession of the Petitioner could come under the provisions of the NDPS Act in view of the aforesaid Sections, rules and the law enunciated in the authority (supra).

For the reasons aforesaid, the petition is accepted, FIR No. 149 dated September 25th, 1999 registered under Sections 21 and 22 of the Act, Police Station A Division, District Amritsar and subsequent proceedings arising there from, are hereby quashed. However, the prosecution is at liberty to prosecute the Petitioner under the Drugs and Cosmetics Act, 1940 or any other law for the time being in force, if so advised.

Disposed of.