Failure to furnish information under Drugs and Cosmetics Act within stipulated time constitutes offence under Section 28A r/w 18B, even post-subsequent compliance. License violation and commercial codeine sale prima facie offences; NDPS applicability for trial, statute overrides circulars.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with the prayer to quash and set aside the entire criminal proceeding in connection with Drugs and Cosmetics Case No.07 of 2022 including the order taking cognizance dated 12.04.2022 passed by learned Additional Judicial Commissioner-II-cum-Spl. Judge, Drug and Cosmetics, Ranchi whereby and where under learned Additional Judicial Commissioner-II-cum-Spl. Judge, Drug and Cosmetics, Ranchi has found prima facie case for the offences punishable under Sections 18B, 18(c), 28A & 27(d) of the Drugs and Cosmetics Act, 1940 as well as Section 8(c), 29 & 21(c) of the N.D.P.S. Act, 1985 and directed for issuance of summons against the petitioner.

3. The allegation against the petitioner is that the petitioner being a licensee issued license under the provisions of the Drugs and Cosmetics Act, 1940 used to sell drugs in violation of the conditions of the license issued and failed to furnish the information sought by the officer and authority exercising the power and discharging the function under the provisions of Drugs and Cosmetics Act, 1940; being the Director (Medicines) of the State of Jharkhand. There are further allegations that the petitioner sold Codeine of 1200 litres consisting of 12,000 bottles of 100ml each, which is in commercial quantity of narcotic drugs and thereby the petitioner has committed the offences punishable under the penal provisions of the N.D.P.S., Act, 1985 as well, in respect of which prima facie case has also been found by the learned Additional Judicial Commissioner-II-cum-Spl. Judge, Drug and Cosmetics, Ranchi.

4. On the basis of the complaint filed by the complainant-Drug Inspector, the learned Additional Judicial Commissioner-II-cum-Spl. Judge, Drug and Cosmetics, Ranchi found prima facie case of the said offences and issued the summoning order.

5. Learned counsel for the petitioner submits that this Choco syrup containing codeine is not a manufactured drug. It is next submitted that the Drugs Controller General of India has communicated to all State Drugs Controllers that number of cough preparations containing codeine phosphate 10 mg as one of the ingredients do not fall under the provisions of NDPS Act, 1985 and the Rules made under the provisions of NDPS Act, 1985 and in the absence of any narcotic drugs and psychotropic substance, involved in this case, the penal provisions of NDPS Act, 1985 is not attracted in this case. It is then submitted that though the complainant has claimed in the complaint that the petitioner sold 12,000 bottles of Choco syrup 100ml each on 23.12.2022, but in fact, the same was sold on 23.12.2020 by the petitioner to M/s Baba Kinaram Pharmacy, Varanasi. It is further submitted that the impugned order is not a speaking order and this criminal proceeding is maliciously been instituted with ulterior motive, hence, it is submitted that the prayer as prayed for in this Cr.M.P., be allowed.

6. Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that the petitioner indulged in illegal business of selling narcotic drugs in the guise of a drug under the license taken by him under the provisions of Drugs and Cosmetics Act, 1940. It is next submitted that the undisputed facts remains that after being detected by the Dire