The provisions of Chapter XIX of the Cr.P.C. would not have any application to the trial of offences under the NDPS Act as the same has been specifically excluded by mandate of law.

JUDGMENT

This petition under Section 482 of the Cr.P.C. seeks to assail impugned orders dated 10.05.2011 and 26.07.2011 passed by Ld. Special Judge (NDPS), Patiala House, New Delhi, in Sessions case No. 129/8/08, whereby, the learned Special Judge has rejected the submissions of the petitioners for their discharge and proceeded to frame charges against them under Sections 22/23 read with Sections 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act).

2. The facts of the case are that on 05.05.2008, on receiving information by Narcotics Central Bureau (NCB) to the effect that a group of persons are involved in the illicit smuggling of prescription drugs, listed under the Schedule of the NDPS Act, search authorization under Section 41(2) of the NDPS Act was issued. At around 4:20 PM, a team of respondent/NCB started its operation and at 4:30 PM, NCB intercepted two persons, namely, Rajesh Sharma and Nafe Singh at Indraprasth Post Office, New Delhi. A bag was seized containing therein, 100 envelopes where 10,260 tablets of `Diazepam`, `Alprazolam` and `Phenobarbitone` (Phenobarbital) were found. Upon disclosure, during the investigation, the identity of other accused persons was ascertained and raids were conducted at the office and residence of other co-accused, where contraband was seized. All the accused were detained, except one, namely, Ashish Kumar, who is reportedly untraceable. On 06.05.2008, voluntary statements of all accused persons were recorded under Section 67 of the NDPS Act. The petitioners were produced before the learned Special Judge (NDPS) and were sent to judicial custody. Samples of seized tablets were sent to Central Forensic Science Laboratory, Hyderabad (CFSL). No adulteration or misbranding was found. On 01.11.2008, respondent/NCB preferred a complaint before the Special Judge against the petitioners for offences punishable under sections 21/22/23/24/27A & 29 of the NDPS Act. The petitioners were granted bail vide order dated 24.12.2008 and 07.01.2009. Between 25.02.2009 to 13.03.2009, three different detention orders were passed against the petitioners under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as PITNDPS). Writ petitions were preferred by the petitioners against the orders of detention.

3. On 06.05.2009, the Division Bench of this court allowed writ petitions being W.P.(CRL) No.326/2009 and W.P.(CRL) No.384/2009, setting aside the orders of detention, holding that export of drugs listed in the Schedule of NDPS Act is neither prohibited nor punishable under the NDPS Act or Rules. This court held that the prohibition only extends to the Psychotropic Substances mentioned in Schedule-I to the NDPS Rules and not to all Psychotropic Substances mentioned in the Schedule to the NDPS Act. The other writ petitions were also allowed on the same line. The SLP preferred by the NCB against the orders passed by the Division Bench of this court bearing SLP (CRL.) Nos. 18197-98/09, was dismissed at the admission stage. On 29.09.2010, the petitions for cancellation of bail of the petitioners at the instance of NCB were also dismissed by the learned Special Judge (NDPS).

4. On 10.05.2011, the learned Special Judge (NDPS) rejected the prayer of petitioners for their discharge from the offence alleged against them. Consequently on 26.07.2011, charges for the offence as stated above were framed. The petitioners have pleaded that they have not committed any offence and the entire procedure adopted by the NCB and the learned Special Judge (NDPS), is de hors the settled legal position. The petitioners are, therefore, seeking for quashment of impugned orders on various grounds.

5. Shri K.T.S. Tulsi and Shri Hariharan, learned Senior Counsel and Shri Amit Anand Tiwari, Advocate, appeared on behalf of the petitioners and they made the following submissions:

(i) Scheme of Section 36-