[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL REVISION PETITION NO. 1241/2007 YATINDRA KUMAR AGARWAL & ORS. Vs. NARCOTIC CONTROL BUREAU DATE: 07/05/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Anil Upman for the accused-petitioner. Mr. Sushil Sharma for the respondent. **** Brief facts of the case are that as per the prosecution case, on 19.04.2005 on the secret information, a team of Narcotic Control Bureau was constituted in the leadership of Narendra Kumar Sharma, Intelligence Officer and the house and the shop of petitioner No.1 Yatindra Kumar have been searched and it has been alleged that during the course of search, tablets namely Alprazolam, Diazepam, Zolpidem, PWC, Ativan and Alpix were found and on the charge of having possession of these medicines, the petitioners have been arrested. A complaint was submitted in the Court of Special Judge, NDPS Cases on 14.10.2005 for the offences under Sections 8C/22 and 8C/29 of the NDPS Act by the complainant Narendra Kumar Sharma, Intelligence Officer. Thereafter vide order dated 10.08.2006, charges were framed against the petitioners for the offences under Sections 8/22 [2] and 8/29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short 'the NDPS Act') The aforesaid charge order dated 10.08.2006 was assailed by the petitioners by way of filing criminal revision petition before this Court and the same was registered as S.B. Criminal Revision Petition No. 1187/2006- Yatindra Kumar Agarwal & Ors. Vs. Union of India, and vide order dated 31.05.2007, this Court while accepting the aforesaid criminal revision petition, has observed that the impugned order dated 10.08.2006 passed by the Special Judge (NDPS) Cases, Jaipur deserves to be quashed and set aside and the same is hereby quashed and set aside and the matter is remanded back to the trial Court for fresh adjudication after giving due consideration to the Schedule-I appended to the NDPS Rules and considering all the legal and just objections/ submissions raised by the respective parties shall pass fresh order in accordance with the provisions of law. After remanding the case, the trial Court having heard rival submissions of the respective parties and having considered the just and legal submissions/objections raised by the petitioner, framed charges for the offences under Sections 8/22, 8/23 and 8/29 of the NDPS Act against the accused-petitioner vide its order impugned dated 31.08.2007. [3] Being aggrieved and dissatisfied with the order impugned dated 31.08.2007 passed by the Special Judge, NDPS Case, Jaipur in Sessions Case No. 34/2005, the accused-petitioners have preferred the instant criminal revision petition under Section 397 read with Section 401 Cr.P.C. on the ground that the trial Court has committed grave illegality in framing charges against the petitioners as the Act of 1985 has not application in the present matter as the petitioner No.1 Yatindra Kumar is the license holder under the Drugs and Cosmetic Act, 1940 and, therefore, the petitioners cannot be charged for having possession of alleged recovered medicines. It is evident from Annexure-1 to 4, which are the license issued by the Drugs Licensee Authority on 26.08.2003, therefore, the order impugned dated 31.08.2007 is not sustainable in the eye of law and the same deserves to be quashed and set aside. Learned counsel for the accused- petitioners referred Sections 8 and 80 of the Narcotic Drugs and Psychotropic Substance Act, 1985 which are reproduced hereunder:- “8. Prohibition of certain operations.- No person shall- (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or [4] (c) produce, manufacture, posses, sell, purchase, transport, warehouse, use, consume, import inter- State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf. 80. Application of the Drugs and Cosmetics Act, 1940 not barred.- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 or the rules made thereunder.” After referring the aforesaid provisions, learned counsel for the accused- petitioners submits that in view of the above [5] provisions, no charge under the Act of 1985 can be framed against the petitioners only by saying that recovered medicines are psychotropic substance as per schedule of Section 2(xxiii) because required license have been issued by the competent authority in favour of the petitioner No.1 Yatindra Kumar and the petitioners cannot be said to have unlawful possession of the alleged medicines. It is also contended that the trial Court has not properly considered Schedule-I appended to the Rules of 1985 and also not followed the directions issued by this Court vide order dated 31.05.2007 passed in the earlier revision petition filed by the petitioner and again framed the charges in mechanical manner. It is also contended that the trial Court failed to consider Rules 53, 53A, 58, 64, 65 and 66 of the Narcotic Drugs and Psychotropic Substance Rules, 1985 as no evidence is available on the record regarding violation of the Act and Rules and looking to the fact that under the directions of this Court, it was expected from the trial Court to consider all legal and just submissions, but the trial Court framed charges against the accused-petitioners only on the basis of the definition clause of Psychotropic Substance defined in Section 2(xiii) of the Act of 1985. [6] As per Section 36-A of the Act of 1985, cognizance under the offence of the Act of 1985 can be taken on the police report or on the basis of complaint made by an officer of the Central Government or a State Government authorised in this behalf but in the instant case, there is no averment in the complaint that the complainant Narendra Kumar Sharma, Intelligence Officer is competent to file this complaint. I have heard learned counsel for the accused-petitioners, learned Public Prosecutor for the State and carefully gone through the order impugned dated 31.08.2007 framing charge against the accused-petitioners for the offences under Sections 8/22, 8/23 and 8/29 of the NDPS Act. Undoubtedly, this is second round of litigation as the petitioners themselves admitted that earlier also the charge order dated 10.08.2006 passed by the Special Judge, NDPS Cases, Jaipur was assailed by them by way of filing criminal revision petition before this Court, as mentioned herein above, and the same was allowed by this Court vide order dated 31.05.2007 and the order impugned dated 10.08.2006 was quashed and set aside and the matter was remanded back to the trial Court for fresh adjudication after giving due consideration to the Schedule-1 appended to the NDPS Rules. [7] Upon careful perusal of the order impugned dated 31.08.2007 which is under challenge in this revision petition, it appears that the trial Court has thoroughly considered the remand order dated 31.05.2007 passed by this Court and also considered Schedule-1 appended to the NDPS Rules and having considered the submissions advanced on behalf of the petitioners and the legal objections which are raised herein in this revision petition, the same were raised before the trial Court and the same have been throughly considered and after going through the material, documents and evidence available on the record, the trial Court was of the view that prima-facie case is made out against the accused-petitioners for the offences under Sections 8C/22, 8C/23 and 8C/29 of the NDPS Act and accordingly rightly framed charges against the accused-petitioners for the aforesaid offences vide order impugned dated 31.08.2007. As detailed speaking order has been passed by the trial Court while framing charges against the accused-petitioners and on being prima-facie satisfied, charges have been framed against the accused-petitioners vide order impugned dated 31.08.2007, therefore, this Court do not find any illegality or error apparent on the face of the record in the order impugned dated 31.08.2007 passed by the Special Judge, NDPS [8] Cases, Jaipur and the same requires no interference whatsoever by this Court. Consequently, the criminal revision petition fails being devoid of merit and the same is hereby dismissed. (K.S. RATHORE),J. /KKC/ (Reserved)