The central legal point established in the judgment is that the drugs seized must fall under the definition of 'Psychotropic Substance' as per the NDPS Act and be listed in Schedule I of the NDPS Rules for the provisions of Section 8 of the NDPS Act to apply.

NAWAB SINGH J

1. Challenge is to the order dated October 30th, 2003 passed by Special Judge, Fatehgarh Sahib, whereby, petitioner was ordered to be charged under Section 22 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and was charge-sheeted accordingly.

2. The accusation against the petitioner was that he was proprietor of a chemist shop in the name and style M/s Kismat Medical Store, Fatehgarh Sahib. On August 5th, 2003 following drugs were recovered from his shop:-

1. 4400 capsules of Hypnodor-10

2. 790 tablets of Nitraz-10

3. 1000 tablets of Nitrazepam Enzed-10

4. 600 capsules of Parvon Spas

5. 400 tablets of Nitrazepam

6. 2000 tablets of Phenotil

7. 50 capsules of Dexavon

8. 88 capsules of Proxyvon

9. 100 injections of Norphine

3. The drugs were sent to the Forensic Science Laboratory, Punjab, Chandigarh for analysis and vide its report dated August 29th, 2003 following ingredients were found in the drugs:-

1.Nitrazepam

2.Diphenoxylate

3.Atropine Sulphate

4.Dextropropoxyphene Hydrochloride

5.Dicyclomine Hydrochloride

6.Acetaminophen/Paracetamol

7.Buprenorphene Hydrochloride

4. Learned counsel for the petitioner has urged that as per reply filed by the State, only two drugs, that is, Nitrazepam and Buprenorphene Hydrochloride mentioned at serial No.64 and 92 of the schedule of the NDPS Act respectively fall under the list of 'Psychotropic Substance' and no other drug seized. Both these drugs do not find place in schedule I appended to the NDPS Rules. Nitrazepam drug is mentioned at serial No.360 in schedule H of the Drugs and Cosmetics Rules under the heading 'Prescription Drugs' and as such does 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 both the medicines (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. Nitrazepam is a medicine which is mentioned in schedule H of the Drugs and Cosmetics Rules at serial No.360. 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 says that no person would sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules. Meaning thereby that this medicine could be sold, of course, after having a valid licence under the Drugs & Cosmetics Act, 1940. In view of this, possession of this medicine does not fall under the 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 meaningful argument contrary to it 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.