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2018 Supreme(Mad) 4474
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. Muralidaran, J.
M. Ranjith Kumar – Appellant
Versus
State – Respondent
Criminal Revision Case No. 1259 of 2016, 1398 of 2016; Criminal Miscellaneous Petition No. 11336 of 2016, 12222 of 2016
Decided On : 13-12-2018
B. Kumar, Adv., P. Ezhilnilavan, Adv., S. Saravana Kumar, Adv., N.P. Kumar, Adv.
Headnote:
Criminal Procedure Code,1973 - Section 173,227 - Sections 8(c),22,22(b),23, 25, 27A, 28 and 29 - NDPS Rules 1985 - Rule 58, 63 and 65-A - Drugs and Cosmetics Act -Ganja - Search and seizer of Ganja - Licenced to carry on business in medicines as retailers - Unlawful sale of psychotropic substances - Sole super stockiest fort Zenlabs India for state of Tamil Nadu - Firm was registered under Drugs and Cosmetics Act and petitioner is running business from - From petitioner used to do business with one Agencies of Villupuram and during that period he sold varies of tablets in which three varieties of tablets are containing Psychotropic Substances - Contacted him in and stated that he is a retailer of medicines and Sarguru Agencies are duly licenced to carry on business in medicines as retailers - Person calling over phone had introduced himself as Manager of Agencies and also gave a drug licence number - He wanted supplies to be sent to his address at Villupuram promising to pay consideration by cheque - Petitioner believed his representation and business was continued till - Now only prosecution says that Agencies did not possess any drug licence and cheated petitioner by giving a fabricated Drug License number - Whether medicine supplied by petitioner is a medicine which also contains psychotropic substance dealt with under NDPS Act - Whether he supplied medicines - Whether a case for trial has been made out by prosecution - Whether or not a prima facie case against accused has been made out - Whether trial will end in conviction or not - Whether materials on record if unrebutted makes a conviction reasonably possible - Whether a prima facie case has been made out against Petitioners - Whether or not a prima facie case against accused has been made out whether or not a prima facie case against accused has been made out - Whether a case for trial has been made out by prosecution - Whether or not a prima facie case against accused has been made out - Held, Court is of view that provisions of NDPS Act cannot be pressed into service and it can only be construed to hold that if an offence is made out under NDPS Act notwithstanding fact that said action is also an offence under Drugs and Cosmetics Act proper action can be taken under earlier act - However it cannot be construed to hold that for an offence said to have been committed under Drugs and Cosmetics Act punishment can be imposed provided under NDPS Act of course mater can be viewed differently if petitioners acted in collusion with by making sale to be used for illegal purposes - Therefore NCB officers ought to have included revision petitioners as witnesses in this case and not an accused since mens rea is absent - Moreover it is nobodys case that petitioners have violated any Rule or order contemplated under NDPS Act - Hence a prima facie case has been made out by petitioners that they have neither violated provisions of NDPS Act nor any Rules or orders made there under - Apart from above discussions this Court is of opinion that provisions of NDPS Act would not be attracted - In this connection it would be necessary to reproduce decision rendered by Honble Apex Court in case of which is as follows In view of fact that all drugs items being allopathic drugs mentioned in Schedules G and H of Drugs and Cosmetics Rules indisputably are used for Medicinal purposes - Once drugs are said to be used for medicinal purposes it cannot be denied that they are acknowledged to be drugs which would come within purview of description of expression medical purposes - Criminal Revision Allowed
JUDGMENT :
M.V. Muralidaran, J.
These criminal revisions were filed against the dismissal of discharge petitions filed by the Petitioner/accused Nos.5 and 6 in Crl.M.P.Nos.2625 of 2013 and 2624 of 2013 in C.C.No.15 of 2012 dated 15.09.2016 by the Learned 1st Additional Special Judge for NDPS Act Chennai.
2. Brief case of the Petitioner/Accused No.5 in Crl.R.C.No.1259 of 2016:
The Revision Petitioner is the Proprietor of M/s.Reliable Pharma at Chennai and he is a sole super stockiest fort Zenlabs India for the state of Tamil Nadu. The firm was registered under Drugs and Cosmetics Act and the petitioner is running the business from 2004. From 2008 to 2011 the petitioner used to do business with one M/s.Sri Sarguru Agencies of Villupuram and during that period he sold 40 varies of tablets in which three varieties of tablets are containing Psychotropic Substances.
3. A1 Shankar contacted him in 2008 and stated that he is a retailer of medicines and Sarguru Agencies are duly licenced to carry on the business in medicines as retailers. The person calling over the phone had introduced himself as Manager of Sarguru Agencies and also gave a drug licence number 537/20B and 502/21B. He wanted the supplies to be sent to his address at Villupuram promising to pay the consideration by cheque. The petitioner believed his representation and the business was continued till 20.07.2011. Now only the prosecution says that M/s.Sri Sarguru Agencies did not possess any drug licence and cheated the petitioner by giving a fabricated Drug License number.
4. The Learned Counsel for the revision petitioner submits that the learned judge failed to see that it is a case of no evidence against the petitioner. The statement of the first accused C.Shankar @ Sekar is not liable to be looked into or taken into consideration since he had died and he is not tried jointly with the petitioner. Hence section 30 of the Indian Evidence Act has no application. In the search made in the residence of A1, certain returned covers alone were seized and they did not contain any medicine allegedly supplied by the petitioner to M/s.Sri Sarguru Agencies.
5. The Learned Counsel for the revision petitioner submits that the learned Judge failed to see that the statement of the petitioner is also exculpatory and that he had not admitted any offence under NDPS Act.
6. The Learned Counsel for the revision petitioner submits that the learned Judge failed to see that supplying medicines to M/s.Sri Sarguru Agencies who had earlier forwarded a letter that they are dealers in medicine shows that the petitioner had innocently dealt with the said M/s.Sri Sarguru Agencies.
7. The Learned Counsel for the revision petitioner submits that the learned Judge failed to see that it was not possible even if the petitioner had taken every precaution to have found out if the said M/s.Sri Sarguru Agencies were not duly authorized dealers under Drugs and Cosmetics Act.
8. The Learned Counsel for the revision petitioner submits that the learned Judge failed to see that the issue is not whether the medicine supplied by the petitioner is a medicine which also contains psychotropic substance dealt with under NDPS Act but the issue is whether he supplied the medicines. Thus on the very basis of the prosecution case, the petitioner has no case and therefore he ought to have been discharged from the case.
9. Brief case of the Petitioner/Accused No.6 in Crl R.C.No 1398 of 2016
This criminal revision is filed against the dismissal of discharge petition filed by the Petitioner/Accused No.6 namely Mohamed Manzur, in Crl.M.P.No.2624 of 2016 in C.C.No.15 of 2012 dated 15.09.2016 by the First Additional Special Judge for NDPS Act cases at Chennai.
10. The Learned Counsel for the Revision Petitioner contends that the learned Trial Judge gave finding that the exact quantity will be known only at the time of trial and not at the time of framing charge, if it is so how the charge can be frame under section 22(b) of NDPS Act and the s
