The Court's discretion to quash a criminal proceeding is to be sparingly and cautiously exercised, especially during an ongoing investigation.

1. The present writ application has been preferred primarily praying for the following relief:

(a) A writ and/or order or orders and/or direction or directions in the nature of certiorari commanding the respondents and each of them to transmit and certify the records of the case before this Hon’ble Court so that conscionable justice may be done by quashing the entire criminal proceeding being Bhaktinagar Police Station case no. 418 of 2018 dated 15.06.2018 under Sections 22© and 23© of the Narcotic Drugs and Psychotropic Substances Act, 1985 forthwith;

2. The petitioner is the proprietor of a firm, namely, M/s. Advanced Health Care carrying on business to sell, stock or distribute by wholesale drugs other than those specified in Schedule-C, C(1) and X of the Drugs and Cosmetics Rules, 1945 (in short, the D&C Rules) framed under the Drugs and Cosmetics Act, 1940 (in short, D&C Act) on the strength of licence under the D&C Rules and certificate of enlistment issued by the Licence Department, Howrah Municipal Corporation (in short, HMC). The petitioner procured 24000 bottles of Relaxcof cough syrup from the respondent no.12. As per the requisition and placement of order dated 4th June, 2018 issued by the respondent no.13, the petitioner sent 3600 bottles (100 ml each) of Relaxcof cough syrup having batch no.BG18004 through the respondent no.15, the distributor on 7th June, 2018. Similarly as per the requisition and placement of order dated 2nd June, 2018 by the respondent no.14 the petitioner sent 4800 bottles of Relaxcof cough syrup having batch no.BG18004 through the respondent no.15 on 7th June, 2018. Thereafter on 23rd June, 2018 the petitioner was communicated a notice under section 41-A of the Code of Criminal Procedure (in short, the said Code) by the investigating officer in connection with Bhaktinagar P.S. Case No.418 of 2018 dated 15th June, 2018 under Sections 22© and 23© of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, NDPS Act). The petitioner thereafter came to learn that the respondent no.4 along with other police personnel searched the godown of the respondent no.15 at Siliguri on 15th June, 2018 at about 16:45 hrs. and seized 17 cartons of Relaxcof cough syrup (total 8400 bottles) and accordingly Bhaktinagar P.S. Case No.418 of 2018 was initiated on the basis of the complaint of the respondent no.4.

3. Mr. Ray, learned advocate appearing for the petitioner submits that the allegations made in the FIR even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence under Sections 22© and 23© of the NDPS Act in view of the exemption given in item no.35 of Government of India notification S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 29.01.1993 dated 14th November, 1985 (in short, the said government notification) and as such the entire criminal proceeding needs to be quashed.

4. According to him, the action taken by the police authorities causes unreasonable restriction in carrying on the business of wholesale drugs by the petitioner and such action is patently illegal and vitiated by unbridled and unfettered discretion, malafide and violative of Article 19(1)(g) of the Constitution of India.

5. He further submits that ‘Codeine’ does not fall within the meaning of psychotropic substance, as defined under section 2(xxiii) of the NDPS Act and each 5 ml of Relaxcof cough syrup of 100 ml sealed bottle which contains 10 mg Codeine Phosphate IP cannot be classified as narcotic drug in view of the exemption given in item no.35 of the said government notification.

6. He further submits that the police authorities have neither delved deep into the issue nor have consulted with the respondent nos.6, 7 and 8, the officers of Narcotic Control Bureau nor have taken any clarification from the Deputy Director, Drugs Control, Siliguri, the respondent no.11 herein as to whether Relaxcof cough syrup of 100 ml sealed bottle in which each 5 ml contains