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IN THE HIGH COURT OF ALLAHABAD
MAHESH CHANDRA TRIPATHI, SUBHASH VIDYARTHI, JJ.
Vibhor Rana - Appellant
Versus
Union of India - Respondent
Criminal Misc. Writ petition No.8403, 8370 of 2021
Decided on : 24-12-2021
Constitution of India,1950 - Article 35 - Indian Penal Code,1860 - Sections 420, 274, 275, 467, 468, 471 - Narcotic Drugs and Psychotropic Substances Act - Sections 42, 80 , 8, 21 (c), 22, 25, 8/21/22, 80 , 29 and 60 (3) - Drugs and Cosmetics Act, 1940 - Sections 2, 18/27 and 2 (xvi) (c) - Cheating and dishonesty - Adulteration of drugs - Sole proprietor of a proprietorship firm having its office which has been granted a license under Rules 61(1) and 61(2) of Drugs Rules, 1945 - Joint team of Narcotic Control Bureau and the Special Task Force Varanasi conducted a search and seized 61,000 bottles of Phensedyl New Cough Linctus Syrup from some location in district - These bottles of cough syrup came from five different batches. Pursuant to aforesaid seizure, some arrests were made by NCB - Narcotic Drugs and Psychotropic Substances Act granted a license under Rules 61(1) and 61(2) of Drugs Rules, 1945 - Petitioner's company deals in distribution of various pharmaceutical drugs and it has entered into an agreement.
Finding of the Court:
Central Government and it is not a narcotic drug and hence not covered by the provisions of NDPS Act and merely because some persons may be misusing it for other than therapeutic purposes - NDPS Act has been enacted with a specific object and Authorities under Act can exercise jurisdiction strictly in accordance with provisions of the Act - Authorities under Act do not have sweeping powers to take action upon suspicion of any illegality or irregularity of any sort committed at any place in respect of any substance - Empowers Authority to enter any building, conduct search and seizure “if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed” and in absence of any material having been placed on record to substantiate that Authority had such reason to believe Phensedyl New Cough Linctus is a narcotic substance - Disputed and rather has been admitted by learned Counsel for the Respondent NCB that there is no dispute that drug in question fulfils the first condition for falling within exception to Entry 35 of the Notification issued by Central Government containing the list of Narcotic Drugs, i.e. being “compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations”, Phensedyl New Cough Linctus is not a Narcotic Drug and any dealing in this drug would not be subject to provisions of the NDPS Act – Writ.
Result: Petitions are allowed
JUDGMENT :
Subhash Vidyarthi, J.
1. Both these Writ Petitions involve a common question i.e. whether Phensedyl New Cough Linctus Syrup is a Narcotic Drug and it comes within the purview of Narcotic Drugs and Psychotropic Substances Act (which will hereinafter be referred to as the NDPS Act’’), therefore, both these Writ Petitions are being decided by a common judgment.
2. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate and Sri Anurag Khanna, learned Senior Advocate assisted by Sri Nipun Singh, Shri Rishi Upadhyay, Sri Neelesh Ram Chandani and Sri Sumit Suri, Advocate learned counsel for the petitioner in Writ Petition No. 8403 of 2021 and Sri Navin Sinha, learned Senior Advocate assisted by Sri Raghav Dev Garg, Advocate, learned counsel for the petitioner in Writ Petition No. 8370 of 2021, Sri Ashish Pandey, Advocate, Special Public Prosecutor for Narcotic Control Bureau, Lucknow and Sri. Arunendra Kumar Singh, the learned A.G.A. for the State.
3. The petitioner in Writ Petition No. 8403 of 2021 is the sole proprietor of a proprietorship firm “G. R. Trading Company” (hereinafter referred to as the ‘Company’) having its office at Saharanpur, which has been granted a license under Rules 61(1) and 61(2) of the Drugs Rules, 1945. The petitioner's company deals in the distribution of various pharmaceutical drugs and it has entered into an agreement with M/S Abbott Health Care Pvt. Ltd., under which the company has been made a super distributor to distribute more than 300 pharmaceutical drugs manufactured by Abbott Health Care Pvt. Ltd.
4. The petitioner in Writ Petition No.8370 of 2021 is the proprietor of a proprietorship concern by the name of “Sachin Medicos” having its registered office at Bajaria Road, First Floor, Thana Janakpuri, Saharanpur, which is a drug distribution company having license under Rules 61 (1) and 61 (2) of the Drugs Rules, 1945. Sachin Medicos deals in the distribution of various pharmaceutical drugs, including Phensedyl New Cough Linctus.
5. The dispute which gave rise to the filing of both the Writ Petitions, started on 17-01-2021, when a joint team of the Narcotic Control Bureau (which will hereinafter be referred to as “the NCB”) and the Special Task Force Varanasi conducted a search and seized 61,000 bottles of Phensedyl New Cough Linctus Syrup from some location in district Jaunpur. These bottles of the cough syrup came from five different batches. Pursuant to the aforesaid seizure, some arrests were made by the NCB and a Case No. NCB-LZU-CR No. 04/21 was registered under the NDPS Act. The Investigating team has found that out of the five batches of Phensedyl New Cough Linctus Syrup, three batches have been distributed by G.R. Trading Company owned by Vibhor Rana and Sachin Medicos owned by Bittu Kumar.
6. The Intelligence Officer, NCB sent notices to G. R. Trading Company owned by Vibhor Rana and to Sachin Medicos owned by Bittu Kumar in purported exercise of powers conferred under Section 67 of the NDPS Act, summoning them to appear before him on 02-03-2021. The petitioner in Writ Petition No. 8403 of 2021 Vibhor Rana being the proprietor of G.R. Trading Company, appeared in response to the aforesaid notice and on 03-03-2021 his voluntary statement was recorded in which he inter alia stated that he is the proprietor of the company. He applied for a license in the year 2019 and he is a super distributor of M/S Abbott Health Care Pvt. Ltd. On being asked about Batch Nos. PHB0423, PHB0435 and PHB0440, he has given all the documents of these batches. He had sent the goods on 13-01-2021 and issued invoices and E-way bills and has received payments of the goods through RTGS in the bank account of the Company in Punjab National Bank, Main Ghantaghar Branch. The petitioner in Writ Petition No. 8370 of 2021 Bittu Kumar, being the proprietor of Sachin Medicos also recorded his voluntary statement which was on similar lines. Both the petitioners have filed copies of licences granted to them by the Food S
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