The main legal point established in the judgment is the interpretation of the applicability of the NDPS Act and the Drugs & Cosmetics Act, including the determination of commercial quantity for opium derivative.

JUDGMENT

Jasmeet Singh, J. (Oral)

1. This is an application seeking bail in FIR No. SC No. 255/2021, under Sections 8/21/28/29 NDPS Act being Case Cr. No. 01/2021.

2. The facts in issue are that the officers of Central Bureau of Narcotics acting on specific information, recovered and seized various narcotic drugs containing medicinal opium in huge quantities i.e.Kamini Vidrawan Ras, Habb-E-Mumsik and Barshasha totaling 2402 grams on 05.03.2021 at Anand Vihar Railway Station Bus Stand, New Delhi from the applicant.

3. In his voluntary statement under Section 67 of NDPS Act dated 05.03.2021, the applicant admitted the recovery. The applicant stated that he worked in medicines shop M/S Krishna Ayurvedic agency, Chandni Chowk in 2018 and later on he started the work of packaging and supplying of medicine in his brother's firm M/S RD Ayurveda, Ghaziabad.

4. The applicant stated that he was looking after the shop RD Ayurveda Ghaziabad. During that period, a person came to his shop for opium-based narcotics medicines and for this the present applicant/accused asked Kamlesh Sharma i.e., the marketing representative of Multani Company for 200 pieces of Kamini Vidrawan Ras (KVR) and Barshasha etc. and Kamlesh Sharma told the present applicant/accused that he would send Narcotic medicines from Vaghbhatt Remedies, Johripur, Delhi and Narcotics Medicines were delivered to him by Amit Sharma on 04/03/2021. However, no sale bill was provided to him by the firm and he purchased this item on credit. He further stated that he was to deliver the said Narcotic Medicines to one Sukhwinder of Amritsar on 05/03/2021 at Anand Vihar Railway station bus stand and he did not provide his mobile number.

5. During investigation it was found that MH Enterprises had supplied Ayurvedic Narcotic Medicines, Kamini Vidhrawan Ras Manufactured by NID Pharma to applicant.

6. Based upon the statement of the applicant made under Section 67, the officers of Central Bureau of Narcotics, New Delhi searched the premises of M/S Vaghbhatt Remedies, Johripur, Delhi and also recovered narcotics drugs containing medicinal opium. The statement of one Mr Kishan Das, the proprietor of M/S Vaghbhatt Remedies was recorded on 10/03/2021 wherein he stated that he had supplied medicines to applicant without any bill and thereafter Krishan Das was arrested on 10/03/2021. Hence, the complaint. The applicant has been in custody since 05.03.2021

7. Ms Sharma, learned counsel for the applicant states that in the present case the provision of Drugs & Cosmetics Act will be applicable and not NDPS act. She has relied upon a notification dated 25.02.2017 issued by the Government of India, Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy which reads as under:

AYUSH BHAWAN

B-BLOCK, GPO Complex

INA, New Delhi-110023

Date: 25, February, 2017

To,

1. All state licensing Authorities for ASU & H drugs (as per list attached)

2. All associations of manufacturers of ASU (as per list attached)

Subject: Provisions regarding license for sale of Ayurvedic Siddha & Unani (ASU) drugs-reg:

I am directed to refer to the various representations received in this Ministry whereby it has been brought to the notice of the Ministry that some regulators of the ASU drugs are raising questions on the need for license to sell Ayurvedic, Siddha & Unani (ASU) drugs.

2. In this concern it is clarified that as far as Central Government is concerned there is no exclusive provision of licensing for sale of ASU drugs in the Drugs and Cosmetic Act, 1940 and rules thereunder.

3. The status may be brought to the notice of all concerned authorities.

Your faithfully,

8. She further relies on Section 33EEC (b) of The Drugs And Cosmetics Act to submit that the Drugs & Cosmetics Act prohibits manufacture and sale of Ayurvedic, Siddha or Unani drugs only if they are in contravention of the provisions of the Drugs And Cosmetics Act.The section reads as under:

"33EEC Prohibition of manufacture and sale of certain Ayurvedi