CRM No. M 34952 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 34952 of 2010 (O&M) Date of decision: 05.04.2011 Mohinder Pal Singh ........ Petitioner Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Puneet Sharma, Advocate for the petitioner Mr. J S Brar, DAG Punjab for the respondent State -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 111 dated 03.10.2010 under Section 22/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985, registered at PS Basti Bawa Khel, Jalandhar and all other consequential proceedings arising out of the same. Facts, in brief, are that the petitioner is a registered Chemist and Druggist and is a duly licence holder to deal with medicines as licenced by the State Drug Controlling ad Licensing Authority, Punjab, Chandigarh. The petitioner is duly licensed to sell, stock or exhibit or offer for sale or CRM No. M 34952 of 2010 (O&M) 2 stock, distribute drugs by retail by the Licensing Authority. The capsules of Primovon Spas and tablets of Memolit recovered from the petitioner were sent to CFSL at Chandigarh. The Assistant Director (Toxicology) Forensic Science Laboratory, Punjab, Chandigarh vide its report No. 914/2010/Toxi/FSL/Pb. dated 12.11.2010 as referred to it on 05.10.2010 given its analysis report, whereby, the quantity of each and every salt per tablet/capsule was specifically given in the said report. It is also submitted that the salts as mentioned in the said report and the average quantity of the said salts/ingredients as per tablet/capsules is within the permission limit as per notification No. 11/85 of the Government of India exempting the usage of said salts within permissible limits. All the salts as per the Forensic Science Laboratory report are exempted as per notification No. 11/85 dated 14.11.1985 issued by the Central Government under the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein, as many as 88 salts/Narcotic substances and preparations were declared to be manufactured drugs exempting from within the ambit of the NDPS Act, 1985. Reply has been filed. As per the reply filed by the State, no licence was ever produced by the petitioner at the time when he was apprehended. The petitioner is stated to have been arrested on a secret information. The averment of the petitioner that he is a licence holder has been replied by simply stating lack of knowledge. Thus, the fact that the petitioner is having a valid licence has not been specifically denied. Some relevant portion of Section 18 (c) of the Drugs and Cosmetics Act, 1940 reads as under:- 18. Prohibition of manufacture and sale of certain drugs and cosmetics CRM No. M 34952 of 2010 (O&M) 3 From such date as may be fixed by the State Government by notification in the official gazette in this behalf, no person shall himself or by any other person on his behalf - a) xx xx xx b) xx xx xx c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute any drug or cosmetics except under and in accordance with the conditions of a licence issued for such purpose under this chapter.” The licence is issued subject to the conditions as specified in Rule 65 of the Drugs and Cosmetics Rules, 1945. Sub conditions (1), (2) and (3)(1) of Rule 65 of the Drugs and Cosmetic Rules, 1945 read as under:- “(1) Any drug shall, if compounded or made on the licensee's premises, be compounded or made by or under the direct and personal supervision of a registered Pharmacist. (2) The supply, otherwise than by way of wholesale dealing of any drug supplied on the prescription of a Registered Medical Practitioner shall be effected only by or under the personal supervision of a registered pharmacist. (3) (1) The supply of any drug other than those specified ini Schedule X on a prescription of a registered medical practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in this regard shall be entered on the prescription. The following particulars shall be entered in the register- a) serial number of the entry, CRM No. M 34952 of 2010 (O&M) 4 b) the date of supply, c) the name and address of the prescriber, d) the name and address of the patient, or the name and address of the owner of the animal if the drug supplied is for veterinary use” Rule 66 provides for cancellation and suspension of licenses in case of violation of any of the terms and conditions which reads as under:- 66. Cancellation and suspension of licences: 1) The licensing authority may, after giving the licensee an opportunity to show cause why such an order should not be passed by an order in writing stating the reasons therefor, cancel a licence issued under this part or suspend it for such period as he thinks fit, either wholly or in respect of some of the substances to which it relates, if in his opinion, the licensee has failed to comply with any of the conditions of the licence or with any provisions of the Act or Rules thereunder:- The petitioner had a valid licence on the date of registration of the FIR. He was, thus, on the date of registration of the FIR was entitled to the privileges granted under the said Act. It is, therefore, not disputed that the petitioner having a valid licence was entitled to possess, sell and dispense any medicine on the prescription of medical practitioner. In case, the petitioner is found to be selling the medicines without a valid licence or without the prescription by a registered medical practitioner, the Drugs and Cosmetics Act and rules framed thereunder are complete and sufficient to deal with any of the said offence. In view of the above, the provisions of the Drugs and Cosmetics Act, 1940 are sufficient to deal with such an offence as made out CRM No. M 34952 of 2010 (O&M) 5 in the present case, if the petitioner does not have a valid licence. Thus, taking into account that notification No. 11/85 dated 14.11.985 issued by the Central Govt. under the NDPS Act vide which the drugs and tablets recovered from the petitioner are exempted from NDPS Act, the said offence is not attracted in the present case. Reliance is placed on the judgments rendered by this Court in the cases of Gurdarshan Pal v. State of Punjab reported as 2003 (2) RCR (Criminal) 593, Leela Ram v. State of Punjab reported as 2002(3) RCR (Criminal) 805 and Baljit Singh v. State of Punjab reported as 2002(4) RCR (Criminal) 664, wherein, in similar circumstances, the FIR was quashed. The said drugs are manufactured drugs and are not covered under the NDPS Act. In this view of the matter and also taking into account the judgments referred to above, the present petition is allowed and FIR No. 111 dated 03.10.2010 under Section 22/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985, registered at PS Basti Bawa Khel, Jalandhar and all other consequential proceedings arising out of the same are hereby quashed. However, the State is always at liberty to proceed against the petitioner under the Drugs and Cosmetics Act,1940, if any offence is made out, if so advised. Allowed in the above terms. (Nirmaljit Kaur) Judge 05.04.2011 mohan CRM No. M 34952 of 2010 (O&M) 6