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IN THE HIGH COURT AT CALCUTTA
Siddhartha Chattopadhyay, J.
Sri Amit Agarwal – Appellant
Vs.
Union of India – Respondents
C.R.R. No. 1966 of 2014
Decided on : 02-12-2016
NDPS ACT - WHOLESALE DRUG LICENSE - SECTION 8, 22, 29 - A wholesaler with a valid drug license can run their business, but certain medicines containing psychotropic substances must be sold according to the law by maintaining a proper register. Failure to maintain such a register and provide documentation regarding the acquisition and sale of such medicines may result in prosecution under the NDPS Act.
Fact of the Case:
The petitioner, a wholesale drug license holder, challenged the legality of a proceeding against him under the NDPS Act for allegedly violating drug license conditions and trafficking drugs with psychotropic substances. The NCB conducted a raid on his shop and seized a large quantity of psychotropic substance injections.
Finding of the Court:
The court found that the petitioner could not produce any documents to show that he maintained a specific register for acquiring and selling medicines containing psychotropic substances, as required by law. The court also noted that the petitioner could not provide any information about the manufacturers/dealers from whom he purchased the medicines or to whom he sold them.
Issues: 1. Whether the petitioner's possession of psychotropic substance injections without proper documentation constituted a violation of the NDPS Act. 2. Whether the petitioner's failure to maintain a specific register for acquiring and selling medicines containing psychotropic substances constituted a violation of the law.
Ratio Decidendi: The court held that a wholesaler of medicine must have a sale tax register or sale tax return in detail from where it can be gathered to whom he had sold it and from whom he got it. Since the petitioner failed to produce any such documents, he was prima facie liable to be prosecuted under the NDPS Act.
Final Decision: The court rejected the petitioner's revisional application and directed the learned Trial Court to proceed with the proceeding against the petitioner as expeditiously as possible.
1. Challenging the legality and validity of the proceeding bearing No. NDPS case No. 7 of 2011 arose out of NCB Crime No. 9/NCB/Kol/2011 under Section 22 and 29 of the NDPS Act, 1985, the present petitioner has filed this revisional application under Section 401 read with Section 482 of CRPC.
2. Feeling aggrieved with the continuation aforesaid proceeding and dissatisfied with the order of the Learned Special Judge NDPS Court Balurghat, the petitioner has filed this application for quashing of the proceeding of the aforesaid case.
3. According to the petitioner, he has a valid license for running his business of wholesale medicine right from the word go. Inspite of that the NCB official under an erroneous belief had conducted a raid in his shop room and in his absence certain medicines were recovered from his shop room. Thereafter the NCB officials have proceeded against him for violation of drug license and other related laws. According to him, since he is having a valid license to store the medicine and to sell the same to the retailer, the prosecution case does not lie.
4. As against this learned Counsel appearing on behalf of the Narcotic Control Bureau has tried his level best to show the other side of the shield. According to the prosecution (NCB) the present petitioner is liable for punishment under Section 22/29 read with Section 8 of the NDPS Act for having violated the provision under Section 8 of the said Act. It is the specific case of the NCB Officials that they conducted an enquiry regarding diversion of Bupernorphine Injection and for the said purpose they had been to Hili area of Dakhin Dinajpur on 05.08.2011 and somehow managed to trace out the shop premises of M/s. Sri Shyam Pharmaceuticals. The said shop room had no sign board in its name. The said shop room was under lock and key. After getting information regarding the whereabouts of the owner/proprietor of the said shop room. They got this information from the local people. At the relevant point of time, the present petitioner was out of station and his father opened the shop room. The NCB Official by opening the shutter door of the said shop room entered there and the owner of the said premises Mr. Nandalal Jain was also present. On opening the said shop room NCB officials found that there were huge quantity of Pentazocine Injections and Bupernorphine Injections which were kept in loose condition. Those injections were kept in black coloured polythene packets.
5. According to the NCB, there is reason to believe that the present petitioner has primarily violated the conditions of the drug license and secondarily, the diversion or trafficking of drugs having components of psychotropic substances could not be ruled out. It is their apprehension that those psychotropic substance, in the garb of medicine, had been sold out to the close proximity of the Indo-Bangladesh Border. The said shop was sealed in the presence of the father of the present petitioner and the owner of the said land. A notice under Section 67 of NDPS Act was issued upon the present petitioner asking him to appear before the NCB Officials but inspite of such repeated notices he did not turn up. Thereafter the NCB Officials again had been to Balurghat and reacted the residential premises of the present petitioner and he was taken for a token search in presence of two independent witnesses. But this time nothing was recovered from his residence. It is specifically alleged by the opposite party(NCB) that the present petitioner could not maintain the condition of the drug license and to satisfy his greed he had sold a huge quantity “Lubigesic” and “Zocin” injections to some habitual traffickers, who in turn, sold the same to their Bangladesi counterparts. The petitioner in their presence disclosed that he occasionally purchased some locally manufactured Bupernorphine Injections from a person named Ram Kishan Agarwal and also from one Ashis Saha and Sanjay Saha. They wer
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