The main legal point established in the judgment is the interpretation of the NDPS Act and D&C Act in relation to the possession and sale of specific drugs, highlighting the applicability of different legal provisions to determine the nature of the offence.

G.P. Mittal, J.

1. The Petitioner Narcotics Control Bureau (NCB) invokes inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (the Code) for setting aside of the order dated 17.04.2010 passed by the learned Special Judge-NDPS whereby the Respondent’s prayer for alteration of the charge and for remitting the case to the Court for trial of the case for the offences under the Drugs and Cosmetics Act, 1940 (D&C Act) was allowed.

2. As per the allegations of the prosecution an information was received from the Delhi Zonal Unit at NCB that huge quantity of bunogesic injections were being supplied by M/s. Rusan Health Care Ltd. to their stockists at Delhi. In pursuance of the information and on receipt of list of stockists, summons were issued to various firms including M/s. International Drugs, Bhagirath Place having licence No.DL.26(1163)20B and 21B which was the Proprietorship Firm of Respondent Sajesh Sharma. In pursuance of the summons Respondent appeared before the officers of NCB who recorded his statement. Statement made by the Respondent led to filing of chargesheet against him for an offence punishable under Section 22 (c) of the Nacrotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The relevant part of the impugned order which led to the framing of the charge under Section 22 (c) of the Act is extracted hereunder:-

“2.…..Pursuant to the information, summons were issued to Sajesh Sharma who tendered his statement that their firm was mainly selling bunogesic injections, etc. after purchasing it from M/s. Belsons/Distributor of M/s. Rusan Health Care. A person by the name of Bhardwaj had come at his shop to purchase 25000 to 30000 injections for supply them to a hospital in Patna and paidRs.15,000/- as advance. After paying the balance amount, he had taken delivery of 30000 injections on invoice from M/s. Belsons on cash payment and sold it to the said person i.e. Shakeel. He was not aware whether Shekeel was having drug licence or not. He stated that whatever consignment had had purchased from M/s. Belsons, he had sold it to Shakeel after taking advance payment on a good margin without bill. He stated that so far as he has sold 250000 injections to Shakeel without bill and Form 6 however, he had purchased all the stock on invoice and Form 6. In the absence of complete information about Shakeel, no further action could be taken. Accused Sajesh Sharma was arrested. After investigation he was sent for trial for offence punishable u/s. 22 (c) NDPS Act.

3. Ld. Predecessor of this Court made out prima facie case against the accused and framed the charge u/s. 22 (c) NDPS Act.”

3. While the case was at the stage of evidence, a prayer was made on behalf of the Respondent for transfer of the case on the file of the Metropolitan Magistrate (‘MM’) as possession of the bunogesic injections was not covered under the NDPS Act but was covered only under the D&C Act which was exclusively triable by the Court of ‘MM’.

4. The Respondent’s contention found favour with the learned Special Judge who opined that bunogesic injection which contained Buprenorphine Hydrochloride was a Schedule ‘H’ drug under the D&C Act and though it was a psychotropic substance under the NDPS Act but since it was not included in Schedule I to the Nacrotic Drugs and Psychotropic Substances Rules, 1985 (NDPS Rules), its possession, sale, etc. is not completely prohibited under the NDPS Act. The learned Special Judge relied on a judgment of the learned Single Judge of this Court in Rajinder Gupta v. State 123 (2005) DLT 55 which was relied on by the Supreme Court in State of Uttaranchal v. Rajesh Kumar Gupta (2007) 1 SCC 355 and opined that on the basis of the allegations levelled, the Respondent cannot be said to have committed an offence punishable under Section 22 (c) of the NDPS Act. The learned Special Judge held that since Buprenorphine Hydrochloride was a Schedule ‘H’ drug, the violation if any, for possession and