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2015 Supreme(MP) 948
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
RAJENDRA MAHAJAN, J.
Rohit Chadha – Applicant
Versus
State of Madhya Pradesh – Respondent
Criminal Revision No. 1621 of 2015
Decided On : 15-10-2015
For the Applicant : Shri Manish Datt, learned senior counsel, with Shri Chetan Jaggi, learned counsel
For the Respondent: Shri A.N. Gupta, learned Panel Lawyer
The main legal point established in the judgment is that possession of a substance beyond a certain quantity must be expressly penalized under the law to constitute an offense.
Headnote:
Narcotic Drugs - Manufactured Drug - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 8(C), 21(B) - Section 2(11) of the Act, Notification No.S.O.826(E), dated 14th November, 1985 - The court examined whether the syrup falls under the category of manufactured drugs as defined in the Act and exempted from the penal provisions. It held that the syrup, containing codeine phosphate within permissible limits and established in therapeutic practice, is not a manufactured drug under the Act. The court also emphasized that possession of the syrup beyond a certain quantity is not expressly penalized under the Act.
Fact of the Case:
The applicant was found in possession of a large quantity of Rexcof Cough Syrup, containing codeine phosphate, and was charged under Sections 8, 21, and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Finding of the Court:
The court quashed the charges against the applicant under Sections 8(C) read with 21(B) of the Act, ruling that the syrup did not fall under the category of manufactured drugs as defined in the Act and that possession of the syrup beyond a certain quantity was not expressly penalized under the Act.
Issues: The key issue was whether the syrup fell under the category of manufactured drugs as defined in the Act and whether the possession of the syrup beyond a certain quantity constituted an offense under the Act.
Ratio Decidendi: The court's decision was based on the interpretation of Section 2(11) of the Act, Notification No.S.O.826(E), dated 14th November, 1985, and the absence of express penal provisions for possession of the syrup beyond a certain quantity.
Final Decision: The court allowed the revision, quashed the charges against the applicant, and directed the concerned Drug Inspector to examine any contravention of the Drugs and Cosmetics Act, 1940 or its rules by the applicant.
Rajendra Mahajan, J.
The applicant has preferred this criminal revision under Section 397 read with 401 of the Cr.P.C. feeling dissatisfied and aggrieved by the order dated 19.05.2015 passed by the Special Judge, Rewa under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), in Special Case No.3/15, whereby the learned trial judge has framed the charges against the applicant under Sections 8(C) read with 21(B) of the Act, along with other co-accused persons.
2. The facts that are relevant and necessary for adjudication of this revision are given below:-
(2.1) On 15.11.2014, K.L. Verma, A.S.I. of the Police Station Churahata, district Rewa got a source information that Rohit Chadha, who is the applicant herein, and Amar Gupta have been illegally transporting in bulk quantity the Rexcof Cough Syrup (for short 'the syrup'), which is used by the drug addicts for intoxication as one of the ingredients of syrup is codeine phosphate a salt of codeine which is the derivative of opium, from Satna to Rewa via Rampur route in a Wagonar car bearing registration No.MP-17-CA-1949. With the help of police force, he intercepted the car and found the applicant and Amar Gupta carrying 480 bottles of syrup, each bottle contains 100 m.l. syrup. They could not produce any licence or permit for transporting the syrup in the huge quantity. Thereupon, he seized all the bottles of the syrup along with the car and lodged an F.I.R., on the basis of which a case is registered against them under Sections 8, 21 and 22 of the Act at Crime No.408/2014.
(2.2) On being interrogated by the police, the duo provided inputs as to purchase, transportation and sale of the syrup. On the basis of the inputs, the police found that there is a big racket for sale of the syrup to the drug addicts on premium and in the racket Kuldeep, Pankaj, Guddu @ Raj Kumar, Dinesh, Ratnesh, Rajmani, Jaheed Khan, Sanjeev and Vishal @ Kailash are involved. On various dates, the police seized the syrup from the possession of some of the aforesaid persons in huge quantity.
(2.3) Upon completion of investigation, the police charge-sheeted the applicant and the afore stated persons for the offences punishable under Sections 8, 21 and 22 of the Act.
(2.4) Having heard the learned counsel for the parties, and having perused the material on record, the learned trial judge framed the charges against the applicant and other co-accused persons under Section 8(C) read with 21(B) of the Act. Hence, this revision by the applicant.
3. The learned counsel for the applicant has submitted that the police had sent some bottles of the seized syrup as samples for chemical analysis to the ITL Labs Pvt. Ltd., Indore, which is recognized by the Government of Madhya Pradesh. According to the report of aforesaid laboratory, each bottle contains 100 ml. syrup and each 5 ml. syrup contains 9.825 mg. codeine phosphate, whereas a label pasted on each of the bottles claims 10 mgs. Having referred to the circular letters Nos. X-11029/27-D, dated 26.10.2005 and X-11029/09-D, dated 01.03.2009 issued by the Drugs Controller General India to all the State Drugs Controllers and notifications No. G.S.R. 588 (E), dated 30.08.2013, the learned counsel for the applicant submitted that the syrup is not a manufactured drug as per Section 2(11) of the Act as the concentration of codeine phosphate in it is mere 0.20% as compare to permissible limit 2.5%. Hence, the syrup comes under the Schedule H-1 of the Drugs and Cosmetics Rule 1940. Consequently, the acts of purchase, stocking, transportation and sale of the syrup do not attract the provisions of the Act and the Rules 1985 made there under. He further submitted that the syrup is used in therapeutic practice for the treatment of cough. Therefore, no offence is made out against the applicant under Section 8(C) read with 21(B) of the Act. Consequently, the learned trial judge has committed gross errors of law and facts by framing the aforesaid charges
