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2011 Supreme(P&H) 1223
2012(2) RCR(Cri) 330
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
NAWAB SINGH, J
Ajaib Singh - Petitioner
Versus
State of Punjab - Respondent
Criminal Revision No. 96 of 2004
Date of Decision : 24.5.2011
For the Petitioner:Mr. Anant Kataria, Advocate.
For the Respondent: Mr. Ranvir S. Chauhan, Addl. AG, Punjab.
The central legal point established in the judgment is the interpretation of prohibited substances under the NDPS Act and the applicability of the Drugs and Cosmetics Rules in determining the possession of the drugs in question.
Headnote:
Narcotic Drugs And Psychotropic Substances Act - Interpretation of Prohibited Substances - Court held that the drugs found in possession of the petitioner did not fall under the NDPS Act as they were not listed in the schedule I of the NDPS Rules. The court also referred to the Drugs and Cosmetics Rules and the notification regarding the sale, purchase, consumption, or use of psychotropic substances, and concluded that the possession of the medicines in question did not fall under the NDPS Act.
Fact of the Case:
Petitioner was found in possession of various drugs and was charged under Sections 21 and 22 of the NDPS Act. The drugs were sent for analysis, and the petitioner challenged the order of being charged under the NDPS Act.
Finding of the Court:
The court analyzed the drugs found in possession of the petitioner and the provisions of the NDPS Act, Drugs and Cosmetics Rules, and a notification regarding psychotropic substances. The court concluded that the drugs in question did not fall under the NDPS Act and set aside the order, discharging the petitioner.
Issues: Interpretation of the drugs found in possession and their classification under the NDPS Act, applicability of the Drugs and Cosmetics Rules, and the notification regarding psychotropic substances.
Ratio Decidendi: The drugs found in possession did not fall under the NDPS Act as they were not listed in the schedule I of the NDPS Rules. The court also referred to the Drugs and Cosmetics Rules and the notification regarding the sale, purchase, consumption, or use of psychotropic substances, and concluded that the possession of the medicines in question did not fall under the NDPS Act.
Final Decision: The revision petition is accepted, and the order under challenge is set aside. The petitioner stands discharged. However, the prosecution is at liberty to prosecute the petitioner under the Drugs & Cosmetics Act, 1940 or any other law for the time being in force.
NAWAB SINGH J
1. Challenge is to the order dated November 4th, 2003 passed by Special Judge, Fatehgarh Sahib, whereby, petitioner was ordered to be charged under Sections 21 and 22 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and was charge-sheeted accordingly.
2. On August 5th, 2003 petitioner was intercepted. He was found in possession of the following drugs:-
1. 600 tablets of Nitraz-10,
2. 600 tablets of Nitrazepam,
3. 6200 capsules of Hypnodor-10,
4. 200 capsules of Parvon Spas,
5. 2000 tablets of Phenotil,
6. 100 injections of Norphine,
7. 240 tablets of Ativan.
3. The recovered items were sent to the Forensic Science Laboratory, Punjab, Chandigarh for analysis. Vide its report dated August 12th, 2003 (Annexure P-4) following ingredients were found in the drugs:-
Quantity of Parcel No.
1 2 3 4 5 6 7
Diphenoxylate 2.4 - - - - - -
Hydrochloride
(Average mg/cap)
Atropine Sulphate 0.25 - - - - - -
(Avergage mg/tab)
Nitrazepam - 9.8 9.9 9.8 - - -
(average mg/tab.)
Lozazepam
(Average mg/tab.) - - - - 1.9 - -
Buprenorphine - - - - - 0.29 -
Hydrochloride
(Average mg/ml)
Dextropropoxyphene - - - - - - 31.9
Hydrochloride
(Average mg/cap)
Dicyclomine - - - - - - 9.8
Hydrochloride
(Average mg/cap.)
Acetaminophen
(Average mg/cap.) - - - - - - 349.8
4. Learned counsel for the petitioner has urged that as per reply filed by the State, only three drugs, that is, Lorazepam, Nitrazepam and Buprenorphene Hydrochloride mentioned at serial No.56, 64 and 92 of the schedule of the NDPS Act respectively fall under the list of 'Psychotropic Substance' and no other drug seized. These drugs do not find place in schedule I appended to the NDPS Rules. Lorazepam and Nitrazepam drugs are mentioned at serial No.294 and 360 respectively in schedule H of the Drugs and Cosmetics Rules under the heading 'Prescription Drugs' and as such do not attract the provisions of the NDPS Act.
5. As far as Buprenorphene Hydrochloride is concerned, the same also does not fall under the definition of 'Psychotropic Substance' vide letter (Annexure P-4).
6. It is not in dispute that these medicines (Lorazepam, Nitrazepam and Buprenorphene Hydrochloride) are not mentioned in schedule I of the NDPS Rules so, the provisions of Section 8 of the NDPS Act would have no application whatsoever. Section 8 of the NDPS Act contains a prohibitory clause, violation whereof leads to penal offence thereunder. Lorazepam and Nitrazepam are the medicines which are mentioned in schedule H of the Drugs and Cosmetics Rules at serial No.294 and 360 respectively. By a notification dated July 13th, 2010, Rule 65-A was introduced in the NDPS Rules which reads as under:-
“Sale, purchase, consumption or use of psychotropic substances.-No person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945, Rules”
7. A plain reading of the rules brings it to home that no person would sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules. Meaning thereby, these medicines could be sold, of course, after having a valid licence under the Drugs & Cosmetics Act, 1940. In view of this, possession of these medicines does not fall under the NDPS Act.
8. As far as Buprenorphene Hydrochloride is concerned, vide letter (Annexure P-4) issued by Government of India, Ministry of Finance, Narcotics Control Bureau, New Delhi, it has been clarified that Buprenophine does not fall under the definition of 'Psychotropic Substance'.
9. To refute the above proposition, no effective argument has been addressed by the state counsel.
10. For the reasons aforesaid, the revision petition is accepted and the order under challenge is set aside. The petitioner stands discharged. However, the prosecution is at liberty to prosecute the petitioner under the Drugs & Cosmetics Act, 1940 or any other law for the time being in force.
