A preparation containing not more than 100 mg. of the drug Codeine/per dosage unit and with a concentration of not more than 2.5 per cent. in undivided preparation and which has been established in therapeutic practice, is excepted from the ambit of Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

1. This petition has been filed under Sec. 482 of the Code of Criminal Procedure for quashing F.I.R. No. 48, dated 15-4-1995 registered at Police Station, Ghal Khurd for an offence under Ss. 21/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and the subsequent proceedings taken therein.

2. According to the First Information Report in question, the petitioner Amrik Singh was found to be in possession of 35 bottles of Phensedyl intoxicating medicine of 125 mls. each. A sample of 25 ml. was drawn from each of the said bottles. The sample bottles and the remaining bottles were sealed with the seal of TS and were seized by preparing a seizure memo. On the basis of a ruqa sent by Sub-Inspector, a case under S. 21 of the Act has been registered. The sample parcels were sent to the office of the Forensic Science Laboratory and the report dated 16-5-1995 has been received. As per report each sample was found to contain Codeine Phosphate 9.5 mg/5 ml.

3. It has been stated in the petition that the petitioner is the holder of Drug Licence No. 674-OB and 457-B to carry on his business of a retail chemist under the name and style of M/s. Guru Nanak Medicose, Mudki, District Ferozepur, that the drug Phensedyl is a cough syrup being manufactured by M/s. Rhone Poulenc Ltd., Bombay, a drug manufacturing company earlier known as May and Baker under their valid Licence No. 345 that the possession and sale of the said drug is no offence under S. 21 of the Act since the same does not fall within the ambit of the term "manufactured drug".

4. On a notice given to the respondent State, it has been stated in reply that the said syrup contains 9.5 mg. per 5 ml. Codeine Phosphate i.e. per bottle of the syrup contains 237.5 mg. of Codeine which is sufficient for an individual for intoxication purposes and the same is generally used by the addicts; and that the petitioner could not produce purchase bill/cash memo and the licence required for the sale of such item. It has been further stated that offence under S. 21 of the Act has been made out and the F.I.R. and the proceedings cannot be quashed.

5. I have heard the learned counsel for the parties and have gone through the record.

6. It has not been disputed at the Bar that the petitioner is carrying on his business as a retail chemist under the name and style of M/s. Guru Nanak Medicose, Mudki having a valid Drug Licence No. 674-OB and 451-B (Annexure P.1). It is also not disputed that Phensedyl is a cough linctus which is established in therapeutic practice. According to the report of the Forensic Science Laboratory, each sample was found to contain Codeine Phosphate in the ratio of 9.5 mg/5 ml. which is equivalent to one dosage.

7. Section 21 of the Act provides for punishment for contravention in relation to manufactured drugs and preparations. The term "manufactured drug" has been defined by S. 2(xi) to mean inter alia a narcotic substance or preparation which the Central Government may by notification in the Official Gazette declared to be a manufactured drug. In exercise of the powers conferred by sub-clause (b) of clause (xi) of S. 2 of the Act, the Central Government declared certain narcotic substances and preparations mentioned in the Notification No. S.O. 826(E), dated 14-11-1985. The substance/preparation mentioned at Serial No. 35 of this Notification reads as under :"Methyl Morphine (commonly known as Codeine) and Ethyl Morphine and their salts (including (Dionine), all dilutions and preparations, except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug/per dosage unit and with concentration of not more than 2.5 per cent. in undivided preparations and which have been established in therapeutic practice."From a bare perusal of the above description, a preparation containing not more than 100 mg. of the drug Codeine/per dosage unit and with concentration of not more than 2.5 per