IMPORTANT POINT
Where the drug Phenobarbitone seized from accused came within purview of Schedule G and H of Drugs and Cosmetics Act and did not find place in Schedule I appended to 1985 Rules, provisions of Section 8 of NDPS Act would have no application.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 22 and 37 - Drugs and Cosmetics Act - Schedules G and H - Recovery of 70 kgs pure phenobarbitone from clinic premises of respondent accused and two clinics of respondent were alleged to have said psychotropic substance in a huge quantity in past four years - Charges were framed against him u/s 8 and 22 of the Act and Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 - High Court granted bail holding that drug in question not being listed in 1st Schedule appended to Narcotic Drugs and Psychotropic Substances Rules, 1985, respondent could not be said to have committed any offence u/s 8 r/w 22 of the Act - State Appeal - Medicine seized from clinic of respondent came within purview of Schedule G and H of Drugs and Cosmetics Act but did not find place in Schedule I appended to 1985 Rules - Provisions of Section 8 of the Act had no application - Section 37 of the Act would prima facie had no application in view of exception contained in Section 8 r/w Rules - Respondent had been in custody for more than two years - Not a fit case for exercise of discretionary jurisdiction under Article 136 of the Constitution of India.
       Held : The High Court as noticed hereinbefore proceeded on the basis that offences under Section 8 or Section 22 do not come within the purview of Section 37 of the Act. Our attention was drawn to Section 22 of the 1985 Act to contend that offences in relation to commercial quantity having specifically been mentioned in Section 37 of the 1985 Act, the same shall also be applicable. We would proceed on the assumption that Section 37 embraces within its fold an offence contemplated under Section 22 of the 1985 Act also so far as it, inter alia, relates to possession of commercial quantity of contraband.(Para 16)
       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 thereunder.(Para 21)
       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".(Para 22)
       The exceptions contained in Section 8 of the 1985 Act must be judged on the touchstone of:
       (i)whether drugs are used for medicinal purposes.
       (ii)whether they come within the purview of the regulatory provisions contained in Chapters VI and VII of the 1985 Rules. (Para 23)
       Section 37 of the 1985 Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes.(Para 27)
       In the instant case, we are of the opinion that Section 37 of the 1985 Act would prima facie has no application in view of the exception contained in Section 8 thereof read with the Rules.(Para 35)
       Respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses out morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly in view of the fact that he has been in custody for a period of more than two years now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India.(Para 37)

Judgement Key Points

What is the scope of bail under the Narcotic Drugs and Psychotropic Substances Act when medicines seized are not listed in Schedule I of the NDPS Rules but are part of Schedules G and H of the Drugs and Cosmetics Act?

JUDGMENT

S.B. Sinha, J. - The respondent herein is an Ayurvedacharya. He operates from two clinics known as : (1) Neeraj Clinic Pvt. Ltd. (NCPL) and (2) Dr. B.S. Gupta Medical Charitable Society (BSGMCS). Advertisements were, allegedly, being issued by him in various newspapers claiming that medicines used by him were prepared from herbal plants collected from the Banks of Ganges and by application thereof patients suffering from epilepsy can be cured. The State, however, on the allegation that in his medicine, he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, raided the premises of the said clinics. 70 kgs. pure phenobarbitone were recovered. It is alleged that through NCPL 336.88 kgs., 524 kgs., 537.32 kgs. and 117 kgs. of drugs (phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively and through BSGMCS 398.65 kgs., 406.88 kgs., 519.95 kgs. and 235.12 kgs. of drugs (phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively.

2. The drugs allegedly used to be dispatched by post also. Appellant was arrested on 13.8.2004 and since then he is in jail custody. Charges were framed against him under Section 8 read with Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (1985 Act, for short) and Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. An application for bail was moved by him before the Special Judge. It was dismissed. He filed an application for bail, however, before the High Court on 30.7.2005, which has been granted. Special Leave Petition was filed thereagainst and by an order dated 14.11.2005, the bail application was revived. The High Court was requested to dispose of the same expeditiously. By reason of the impugned order dated 2.12.2005 the said bail application has been allowed. The State is, thus, before us.

3. In its order the High Court noticed that ordinarily applications for bail are required to be considered having regard to Section 37 of the 1985 Act. It, however, opined that the drugs in question not being listed in the 1st Schedule appended to Narcotic Drugs and Psychotropic Substances Rules, 1985 (the Rules, for short), the respondent cannot be said to have committed any offence under Section 8 read with Section 22 of 1985 Act.

4. Mr. A. Sharan, learned Additional Solicitor General appearing on behalf of the State submitted that the High Court committed a serious error in opining that the offence under Section 22 having not been referred to in Section 37 of 1985 Act, the rigours thereof have no application. The learned Additional Solicitor General urged that although in terms of Section 8 of 1985 Act, an exception has been made as regards use of the psychotropic substances for medicinal or scientific use, such use must be bona fide and in terms of the Rules framed under the 1985 Act.

5. Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the respondent, on the other hand, contended that the drugs alleged to have been seized from the Neeraj Clinic being Schedule H drugs as envisaged in Drugs and Cosmetics Act and the same having been used for medicinal purposes and being not the drugs provided for in the rules framed under the 1985 Act, prima facie no offence can be said to have been committed under the 1985 Act. Our attention in this behalf has been drawn to a decision of a learned Single Judge of the Delhi High Court in Rajinder Gupta vs. The State reported in 123 (2005) DLT 55.

6. The 1985 Act was enacted with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the Intern

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2006 Supreme(SC) 1107

IMPORTANT POINTWhere the drug Phenobarbitone seized from accused came within purview of Schedule G and H of Drugs and Cosmetics Act and did not find place in Schedule I appended to 1985 Rules, provisions of Section 8 of NDPS Act would have no application.

Cases Referred (6)

IMPORTANT POINT
Where the drug Phenobarbitone seized from accused came within purview of Schedule G and H of Drugs and Cosmetics Act and did not find place in Schedule I appended to 1985 Rules, provisions of Section 8 of NDPS Act would have no application.