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ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Vicky @ Baba and Anr - Appellant
Versus
Union of India - Respondent
Cr. Misc. Petition No. 1809 of 2014
Decided On : 17-04-2015
NDPS Act - Quashing of Charges - Sections 8/21, 25, 29 - Summary of Acts and Sections: The court discussed the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, particularly focusing on the definitions of narcotic drug and psychotropic substance, the application of Section 8, and the interplay with the Drugs and Cosmetics Act, 1940. The court also considered the implications of notifications issued by the Central Government regarding the manufacture and sale of specific drugs containing dextropropoxyphene.
Fact of the Case:
The Narcotics Control Bureau received information about illegal drug trade by the petitioners. A raid was conducted, and a large quantity of narcotic drugs and psychotropic substances were found in the possession of the petitioners. The petitioners were charged under Sections 8/21, 25, 29 of the NDPS Act.
Finding of the Court:
The court found that the possession of Phensedyl cough syrup did not constitute an offense under the NDPS Act, as it fell within the exception provided in a Central Government notification. However, the possession of Spasmoproxyvon Capsules and Spasmocip Plus Capsules containing dextropropoxyphene was deemed illegal under the NDPS Act, as they were banned and withdrawn from the market by the manufacturer.
Issues: The main issue was whether the possession of the drugs by the petitioners constituted an offense under the NDPS Act, considering the provisions of the Act, notifications issued by the Central Government, and the interplay with the Drugs and Cosmetics Act.
Ratio Decidendi: The court held that the possession of Phensedyl cough syrup did not constitute an offense under the NDPS Act, as it fell within the exception provided in a Central Government notification. However, the possession of Spasmoproxyvon Capsules and Spasmocip Plus Capsules containing dextropropoxyphene was deemed illegal under the NDPS Act, as they were banned and withdrawn from the market by the manufacturer.
Final Decision: The petition to quash the charges under the NDPS Act was dismissed by the court.
Vishnu Chandra Gupta,J.
Heard Shri Ratnesh Chandra, learned counsel for the petitioners and Mrs. Shikha Sinha, learned counsel for opposite party.
2. By means of the present petition, under section 482 Code of Criminal Procedure (for short ''Cr.P.C'.), the petitioners Vicky @ Baba and Mukesh Kumar have prayed for quashing the order dated 27.3.2014 of framing of charges against the petitioners under Sections 8/21, 25, 29 of Narcotic Drug And Psychotropic Substances Act,1985 (for short 'NDPS Act') passed by the Additional Sessions Judge, Court No. 8, Lucknow in Criminal Case No.26 of 2014 Union of India Vs. Vicky @ Baba and others as well as the entire proceeding of the above mentioned case.
3. Brief facts for deciding this petition are that on 02.09.2013 a secret information was received by Narcotics Control Bureau, Lucknow (hereinafter referred to as ''NCB') that the petitioners are doing an illegal trade of drugs. After secret information a raid was conducted in the premises of Yash Traders , Proprietor, Mukesh Kumar, the Petitioner No.2, situated at G/14, Sector G, LDA Colony, Kanpur Road, Lucknow, wherein the petitioner No.1 Vicky @ Baba was found carrying the business of whole sale medicines by a team of officials of NCB. The petitioner No.1 Vicky @ Baba alleged to have a drug licence in the name and style as Baba Pharmacuticals, Shop No.8, IInd floor, Sugnamal Market, Aminabad, Lucknow. The licensed premises of petitioner Vicky was situated in shop Shop No.8, IInd floor, Sugnamal Market, Aminabad, Lucknow. During the course of raid, a huge quantity of Phensedyl Cough Syrup, Spasmoproxyvon Capsules and Spasmocip Plus Capsules were found in the aforesaid shop of Yash Traders situated at G/14, Sector G, LDA Colony, Kanpur Ropad,Lucknow. In the presence of the petitioner, a recovery memo was drawn after completing the proceeding of raid on 03.09.2013. The facts mentioned in the recovery memo reveal that following drugs were found;
(I) Phensedyl Cough Syrup (Total 10,700 bottels)
214 boxes containing 50 bottles of 100 ml in each box
95 Cartons containing 50 bottels of 100 ml in each box,
(ii) Spasmoproxyon Capsules, total 12,70,080 Capsules
147 Cartons containing 60 box of 24x6 capsule in each box
(iii)Spasmocip Plus Capsules, total 5,04,000 capsules
14 Cartons containing 90 box of 8x10 capsule in each box
4. It was further revealed from the spot/recovery memo that the petitioner No.1 Vicky informed to NCB team that shop (from where recovery was made) was taken on rent by Petitioner No.2 Mukesh Kumar and he do the business of grocery and eat able items like chips, biscuits etc and Mukesh Kumar has no concern with the business of medicine. He (petitioner No.2 Mukesh Kumar) has no knowledge that these medicine are banned.
5. The petitioner No.1 Vicky could not produce any record of purchase and sale of such huge drugs containing Narcotic Drugs and Psychotropic Substances. The articles were seized and samples of recovered articles were sent for analysis. After investigation, a complaint was filed by NCB against the petitioner, which has been annexed as Annexure no. 1 to the supplementary affidavit.
6. In the complaint, it has been stated that Phensedyl Cough Syrup contains codeine phosphate, a narcotic drug and Spasmoproxyvon Capsules and Spasmocip Plus Capsules both contain dextropropoxy-phene. It is also stated in the complaint that petitioner Vicky in his statement recorded under Section 67 of NDPS Act admitted illegal trafficking of the aforesaid narcotic drugs and psychotropic substance.
7. For the sake of convenience para 69 of the complaint is reproduced herein below: -
“That 12,70,080 Nos. of Spasmoproxyvon Capsules and 1,00,800 Nos. of Spasmocip plus capsules were also recovered from Vicky Baba on 02.09.2013. These medicines contained a salt namely ‘’Dextyropropoxy-phene’ which is a ‘’ manufactured drug’ as notified at Sl. No. 87 of GOI notification No. 826 (e) dated 14.11.1985. The Central Govt. vide their notif
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