The central legal point established in the judgment is the interpretation of the permissible limits of opium derivatives and the applicability of relevant notifications in determining the violation of the NDPS Act.

ORDER :

Mr. Prakash Upadhyay, learned counsel for the petitioner. Mr. A. R. S. Chouhan, learned Panel Lawyer for respondent/State. This petition under section 397 read with section 401 of Criminal Procedure Code has been filed assailing the order dated 15-7-2015, passed by Special Judge (NDPS Act), Rewa in Special Case No. 4/2015, whereby charges under section 8(c) read with section 21(b) and section 29(1) of NDPS Act has been framed against the petitioner.

2. Filtering the unnecessary details, the facts just necessary for the disposal of this petition are that, on the tip of an informer the Police Station Baikunthpur, District Rewa raided the house of accused Rajendra Tripathi. It is alleged that the applicant Kamal Nayan Pandey with the help of co-accused Rajendra Tripathi was selling Rexcof Syrup without any prescription of medical practitioner from the rested residential house, of Rajendra Tripathi. Though the petitioner is the owner of Kamal Medical Store, Baikunthpur, he was using a different premises to sell the questioned syrup. Rajendra Tripathi was apprehended with 15 boxes of Rexcof Syrup, which were seized. Rajendra Tripathi informed the police that the petitioner-Kamal Nayan Pandey has been using the premises on rent.

3. On the label of the bottle of Rexcof Syrup, it is specifically mentioned that “not to be sold without the prescription of the registered medical practitioner”. The contents of the syrup includes Chlor-Pheniramine Maleate and Codeine Phosphate.

4. According to the prosecution each carton/box contained 120 bottles, thereby 1,800 bottles of 100 ml each syrup was seized. On the analysis it is found that syrup contained 0.5 ml of opium derivative which is nothing but “codeine phosphate” 9.549 mg to 9.76 mg. Hence, total contents of codeine phosphate is 345 g 7992 mg which is violation of section 8(c) read with section 21(b) of NDPS Act and punishable under section 29(1) of NDPS Act.

5. Charge-sheet has been filed before the Special Court (NDPS Act) Rewa in Special Case No. 4/2015, whereby charges have been framed under section 8(c) read with section 21(b) and section 29(1) of NDPS Act against the accused persons.

6. The petitioner has assailed the order impugned on the ground that the petitioner is a licencee under the Drugs and Cosmetics Act, 1940. The Central Government by its Notification dated 19-11-1985, in exercise of power conferred by sub-clause B of clause 11 of section 2 of NDPS Act, has declared the “codeine phosphate” and its preparation to be manufactured drug. It is an admitted case of the prosecution that the Rexcof Syrup is a medical drug. The petitioner is having a license for retail sale of medical drug under the Drugs and Cosmetics Act, 1940 read with the Drugs and Cosmetics Rules, 1945. There is no iota of evidence available on record against the petitioner for violating any provisions of the Drugs and Cosmetics Act, 1940. The petitioner being licence holder under the Drugs and Cosmetics Act, 1940 was selling the drug, therefore, the learned trial Court failed to appreciate the same and framed charges for the offence under provisions of NDPS Act, 1985, presuming that the petitioner is not a licence holder.

7. It is also claimed that, if any offence is made out under section 27 of Drugs and Cosmetics Act, 1940 which is cognizable only on the complaint of the person, specified under section 32 of the Drugs and Cosmetics Act, 1940. If it is presumed that, the petitioner was selling the drug in violation of conditions of the licence. But, under the circumstances no offence is made out under the provisions of NDPS Act. The Court below has failed to appreciate this facts and, therefore, it is prayed to set aside order dated 15-7-2015, passed by the learned Special Judge (NDPS Act).

8. Learned counsel for the petitioner claims that the petitioner has not violated and provisions of NDPS Act. He is not the manufacturer of the drug, nor he has kept it in quantity of contraband. He is having licence t