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2017 Supreme(Gau) 709
IN THE GAUHATI HIGH COURT (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RUMI KUMARI PHUKAN, J.
Sri Nabin Chandra Bachubhai Doshi @ Nabin Bhai Doshi, son of Bachubhai Gulab Chand Doshi – Petitioner
Versus
The State of Assam and Others – Opp. Parties
Criminal Petition No.312 of 2017
Decided On : 04-08-2017
For the Petitioner:Mr. B.K. Mahajan, Advocate
For the Opp. Party : Ms. S. Jahan, Addl. P.P.
The decision of the Delhi High Court quashing a notification is applicable throughout India, and the seized drug was covered by the quashed notification.
Headnote:
NDPS Act - Quashing of FIR - S. 22(C) - S.O. 983(E), S.O. 909(E)
Fact of the Case:
The petitioner sought to quash the FIR registered under S. 22(C) of the NDPS Act, contending that the seized drug was covered by a notification quashed by the Delhi High Court. The investigating agency argued that the drug was covered by a different notification and that the Delhi High Court's decision was not applicable in Assam.
Finding of the Court:
The court found that the seized drug was covered by the notification quashed by the Delhi High Court, and that the Delhi High Court's decision was applicable in Assam. It held that the continuation of the investigation would be an abuse of process of law and quashed the FIR.
Issues: Applicability of quashed notification, Jurisdiction of Delhi High Court
Ratio Decidendi: The seized drug was covered by the notification quashed by the Delhi High Court, and the Delhi High Court's decision was applicable in Assam. The continuation of the investigation would be an abuse of process of law.
Final Decision: The FIR pertaining to CID P.S.Case No. 28/16 was quashed and set aside.
Heard Mr. B.K.Mahajan, learned counsel for the petitioner as well as Ms. S. Jahan, learned Addl. P.P. Assam.
2. By this application U/Ss 482/397/401 CrPC, petitioner has prayed for quashing the FIR of CID Police Station Case No.28/2016 registered U/S 22(C) of the NDPS Act.
3. The case in brief is that one Shyamanta Sarma, S.I. of Police lodged an FIR before the Officer-in-Charge of CID Police Station stating inter alia that on the strength of secret information on 10.8.2016 godown of GTC India (P) Ltd. Was searched and recovered C-KOF Syrup in 126 Nos of cartons containing Codeine as the same is banned by Government of India vide Notification No.S.O.983(E) dated 10.3.2016.
4. Upon receipt of the FIR the Officer-in-Charge of CID Police Station registered CID P.S.Case No. 28/2016 U/S 22(C) of the NDPS Act and investigation is pending.
5. Petitioner is the Chairman of DWD Pharmaceuticals Limited and one Pramod Ranjan Das is the C & F agent of the company of the petitioner dealing with marketing and selling of the drug in question in the State of Assam having its registered office at Ram Krishna Mission Road, Ulubari, Guwahati. One of the employees of the company namely Krishna Saha was arrested in connection with the instant case and Pramod Ranjan Das is the C & F agent has been granted the privilege of pre-arrest bail by this Court. The Delhi High Court stayed the operation of notification No.909(E) dated 10.3.2006 vide order dated 17.3.2016, as the parent company of the petitioner namely, Coral Laboratories filed a Writ Petition being WP(C)No.2348/16 challenging the said notification No.909(E) dated 10.3.2016 and their petition was tagged along with the other batch of writ petition and prayer was also allowed along with other writ petitions by a common judgment dated 1.12.2016 and said notification has been quashed. Petitioner is C & F agent of said Coral Company.
6. The investigating agency has issued a notice under Section 41 CrPC to the petitioner asking him to appear before the IO of the case along with documents for verification and for recording the statement of the petitioner positively on 25.4.2017 despite all the relevant documents being placed before it on several occasions. Being highly aggrieved and dissatisfied with the issuance of Notice despite the relevant notification being quashed by the Hon’ble Delhi High Court, the petitioner filed this petition to quash the proceeding pertaining to CID P.S.Case No.28/16.
7. According to the petitioner, Notification No.S.O.983 (E) dated 10.3.2016 finds place in the FIR, which (according to the investigating agency) has banned the drug in question i.e C-KOF in respect of combination of Chlorpheniramine + Codeine Phosphate + Methanol Syrup, whereas the drug in question seized by the investigating agency is a combination of Chlopheramine Maleate + Codeine Syrup covered by Notification No.909 (E) and the said notification has been quashed by the Delhi High Court. Petitioner further contends that continuation of the investigation of the case would be an exercise in futility as the notification mentioned in the FIR i.e. S.O.983 (E) does not cover the combination of the drug in question rather it is covered by notification No.909(E) and as the parent company of the petitioner namely, Coral Laboratories preferred WP(C)No.2348/16 challenging the Notification 909(E) along with other petitioners and as the same was stayed and finally quashed after due consideration by the Hon’ble Delhi High Court, the FIR in question should be set aside and quashed. According to the petitioner quashing of notification No.909(E) on 10.3.2016 was not challenged by the respondents, therefore the same quashment of the notification attained its finality. Petitioner submits that ingredients/composition of C-KOF Syrup would show that the notification No.983(E) does not cover the same, whereas the Notification No.909(E) covers the drug in question of the petitioner. It is the further contention of
