1. A Sub-Inspector of Police, Criminal Investigation Department ('CID'), Assam, lodged, on 1.12.2009, a First Information Report with the Officer in-Charge, CID Police Station, Assam, alleging, inter alia, thus : Acting on a secret information, the informant, along with his team of officials, on 30.11.2009, at 2.40 p.m., conducted search of a night super bus parked at Lalong Gaon, Lokhra, near National Highway 37, in presence of its driver, Lairenlakpam Thoiba Singh, its handyman, Azmeer Hussain, and some witnesses. On the search, so conducted, 31,298 (thirty-one thousand two hundred and ninety-eight) numbers of Spasmo Proxyvon capsules were found kept concealed in two secret chambers specially made inside the bus. The said capsules were accordingly seized and, on a query made by the informant, the driver and handyman failed to produce any document authorizing them to carry the said capsules.

2. Based on the information, so lodged, CID Police Station Case No.31/2009 under sections 380/411, IPC read with section 22(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act') was registered. The samples were sent to Forensic Science Laboratory ('the FSL'), which reported that the chemical examination of the samples gave positive test for propoxyphene and the amount of pro-poxyphene was found to be 497.50 m.g. and 479.91 m.g. respectively. On completion of investigation, charge-sheet was laid and the case has come to be registered as Sessions (Special) Case No.375/2009. By order, dated 5.5.2010, learned Additional Sessions Judge, Kamrup, has fixed the case for consideration of charge.

3. Challenging the legality and maintainability of the registration of the case under the provisions of the NDPS Act by the prosecution, the present application, under section 482, Cr.PC, has been made for quashing of the penal provisions of the NDPS Act, whereunder the case has been registered, on the ground that possession of spasmo proxyvon capsule or transportation thereof can, at best, be an offence under the Drugs and Cosmetics Act, 1940, but cannot be an offence under the NDPS Act.

4. I have heard Mr. M. I. Sharma, learned counsel for the petitioner, and Mr. Z. Kamar, learned Public Prosecutor, Assam. I have also heard Mr. A. M. Bora, learned counsel, who has appeared as amicus curiae.

5. Appearing on behalf of the petitioner, it has been contended by Mr. Sharma that the prosecution of the accused, under section 22(c) of the NDPS Act, is bad in law inasmuch as section 22 prescribes punishment if the contravention of the provisions of the NDPS Act or Rules or orders made or conditions of licence, granted thereunder, is in respect of any psychotropic substance. In order to be a psychotropic substance, contends Mr. Sharma, the substance, in the light of the definition of psychotropic substance, as contained in section 2(xxiii), must be included in the list of psychotropic substances, specified in the schedule to the NDPS Act.

6. In the case at hand, the prosecution alleges, points out Mr. Sharma, that the seized capsules, which bear the trade name of Spasmo Proxyvon, contain propoxyphene. It is also pointed out by Mr. Sharma that since prosecution against the petitioner has been launched under section 22(c) of the NDPS Act, it implies that propoxyphene, according to the prosecution, is a psychotropic substance or else, the prosecution of the accused could not have been sought for under section 22. However, the fact remains, submits Mr. Sharma, that propoxyphene does not find place in the list of psychotropic substances specified in the schedule to the NDPS Act. Consequently, the seized capsules, points out Mr. Sharma, cannot be said to contain any psychotropic substance. The prosecution of the accused abovenamed, therefore, is, contends Mr. Sharma, not sustainable in law and may be quashed by invoking this court's power under section 482, Cr.PC.

7. It is also submitted by Mr. Sharma that since the allegation against the accused a

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