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ALLAHABAD HIGH COURT
Ajai Lamba, J.
Ashok Kumar Thru (Brother) Rakesh Kumar Pawar - Appellant
Versus
Union of India Thru Ministry of Home New Delhi And Ors. - Respondent
Application U/S 482/378/407 No. 2976 of 2014
Decided On : 15-10-2014
Petitioner, a Territory Sales Manager, was charged with abetment of possession of Phensedyl Cough Syrup containing Codeine, a Narcotic Drug, under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The petitioner challenged the charges, arguing that Phensedyl Cough Syrup is a Schedule 'H' drug under the Drugs and Cosmetics Act (D&C Act), manufactured by a licensed manufacturer, and stocked by a licensed stockist. The court examined the relevant provisions of the NDPS Act, D&C Act, and related notifications and judgments.
Fact of the Case:
Phensedyl Cough Syrup, containing Codeine, was recovered from the premises of a licensed stockist. The petitioner, a Territory Sales Manager, was charged with abetment of possession of a Narcotic Drug under the NDPS Act.
Finding of the Court:
The court held that Phensedyl Cough Syrup is a Schedule 'H' drug under the D&C Act, manufactured by a licensed manufacturer, and stocked by a licensed stockist. The court further held that Phensedyl Cough Syrup containing Codeine within the prescribed limits is not a Narcotic Drug under the NDPS Act, as it falls within the exception provided under a Central Government Notification issued under the NDPS Act. Therefore, the court quashed the charges against the petitioner.
Issues: 1. Whether Phensedyl Cough Syrup containing Codeine is a Narcotic Drug under the NDPS Act? 2. Whether the petitioner, a Territory Sales Manager, could be charged with abetment of possession of a Narcotic Drug?
Ratio Decidendi: 1. The court held that Phensedyl Cough Syrup containing Codeine within the prescribed limits is not a Narcotic Drug under the NDPS Act, as it falls within the exception provided under a Central Government Notification issued under the NDPS Act. 2. The court held that the petitioner, a Territory Sales Manager, could not be charged with abetment of possession of a Narcotic Drug, as Phensedyl Cough Syrup is not a Narcotic Drug under the NDPS Act.
Final Decision: The court allowed the petition and quashed the charges against the petitioner.
Ajai Lamba, J.
The question posed to this Court is whether Possession of 'Phensedyl Cough Syrup' (containing Codeine, an opium derivative), manufactured by a licenced manufacturer, stocked by a licenced stockist in licenced premises would constitute an offence, punishable under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act) ?
2. The petitioner Ashok Kumar has filed this petition under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") to seek quashing of proceedings of Complaint Case No.20 of 2014 titled "Union of India through Intelligence Officer, Narcotic Control Bureau, Lucknow (for short 'N.C.B.') v. Baljeet Singh and another', under Sections 8, 21, 25 and 29 of the N.D.P.S. Act. The petition also prays for quashing of order dated 10.3.2014 passed in the above noted case by Additional District and Sessions Judge- VIII, Lucknow, by means of which charges have been framed against the petitioner for commission of offence under Sections 8, 21 and 29 of the N.D.P.S. Act.
3. Facts giving rise to filing of this petition are that on 26.08.2013, a raid was conducted by a team of officials of Narcotic Control Bureau at the premises of M/s Simran Pharma, UGF No.9, New Medicine Market, Aminabad, Lucknow. Baljeet Singh, the proprietor of the said Firm was found in the premises and led the team to recover large quantity of drugs, including Phensedyl Cough Syrup (total 10950 bottles). Baljeet Singh could not produce bills for purchase of the medicines. Baljeet Singh allegedly disclosed that he used to get Phensedyl Cough Syrup with the help of certain persons/firms. Because shop/godown is located in a crowded area, therefore, the shop of M/s Simran Pharma (unsearched portion) was locked and sealed. Raid was resumed on 27.08.2013 whereupon other drugs were also recovered.
4. It appears that during investigation, statements of various persons representing, Carrying and Forwarding Agents, Transporters etc. were recorded. Statement of Adil Ali Khan, Area Sales Manager with Abbott Healthcare Pvt. Ltd. working in Trade Management Division at Lucknow was also recorded. Adil Ali Khan disclosed the names of six subordinate Territory Sales Managers working under him, which included the petitioner, who used to take orders of Phensedyl Cough Syrup from various stockists. It was further disclosed by Adil Ali Khan that the petitioner Ashok Kumar did not inform him about the orders and booking of Phensedyl Cough Syrup, rather he used to pass those orders directly to Carrying and Forwarding Agent. Senior Officers were informed, including Zonal Business Manager (Delhi), M/s Abbott Healthcare Pvt. Ltd. Adil Ali Khan, however was directed not to interfere in the supply of Phensedyl Cough Syrup as it depends on the orders from stockists. Adil Ali Khan was further informed that as per directions of the company issued in 2013, a maximum number of 20000 bottles of Phensedyl Cough Syrup per month can be supplied to each stockist.
5. It appears that statement of the petitioner, who was serving as Territory Sales Manager, M/s Abbott Healthcare Pvt.Ltd., Management Division at Lucknow was also recorded on 18.09.2013 under Section 67 of the N.D.P.S.Act. Allegedly the petitioner informed that he had been trafficking cough syrup in conspiracy with Baljeet Singh, Proprietor of M/s Simran Pharma and would also supply Phensedyl to other stockists.
6. A perusal of Annexure 13, appended with the petition, indicates that the statement was retracted by the petitioner before the Court on affidavit stating that clothes of the petitioner were removed and under threat of dire consequences, the petitioner was forced to sign a statement.
7. Consequent to the raid, impugned complaint, proceeding as Criminal Misc.Case No.20 of 2014, titled, Union of India through Intelligence Officer NCB Lucknow v. Baljeet Singh and Ashok Kumar was filed. So far as the petitioner is concerned, the petitioner has been charged for commission of offe
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