Crl.Misc No M- 31299 of 2010 Ashwani Kumar Tuli v. State of Punjab Present: Mr.Arun K.Bakshi, Advocate, for the petitioner. Mr.Vishal Munjal, Addl. A.G. Punjab. *** ORDER The present petition has been filed on behalf of petitioner Ashwani Kumar Tuli for grant of regular bail in case FIR No. 102 dated 7.9.2010 under Sections 21/22/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) registered at Police Station Division No.3, Jalandhar. Notice of motion was issued on 26th October, 2010. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case. As per allegations in the FIR, the petitioner was found to be in unauthorised possession of intoxicating capsules and injections which were alleged to be found in the dicky of the scooter. The petitioner is running a partnership firm duly registered with Registrar of Firms, Punjab under the name and style of M/s Shiv Shankar Medicos at 10-H, Dilkusha Market, Jalandhar dealing in wholesale business of medicines. The petitioner is having licence to sell, stock or exhibit or offer for sale or distribute by wholesale drugs other than those specified in Schedule C, C (1) and X vide Form 20-B from 19.3.2008 to 18.3.2013. Learned counsel for the petitioner further submits that Dextropropoxyphene and its salts are categorized as Prescription Drug in Schedule 'H' of Crl.Misc No M- 31299 of 2010 [2] Drugs and Cosmetics Rules 1945 under rule 65 & 97 and therefore, the Drugs and Cosmetics Act 1940 as well as Drugs and Cosmetics Rules 1945 will be applicable to the confiscated material instead of the N.D.P.S. Act, 1985 as applied by the police. Learned counsel for the petitioner also relied upon the judgment of Hon'ble the Apex Court reported in State of Uttaranchal v. Rajesh Kumar Gupta 2006(4) R.C.R (Criminal) 974 wherein it was observed that the drugs falling within purview of schedules 'G' and 'H' of Drugs and Cosmetics Act and prima-facie provisions of N.D.P.S.Act will not be applicable and thus for purposes of bail, Section 37 of N.D.P.S. Act will not apply in view of exception contained in Section 8 of N.D.P.S.Act. The petitioner is in custody since 7th September, 2010 and challan has not yet been presented and no useful purpose would be served by keeping the petitioner in custody as the trial may take some time and recovery has already been effected from the petitioner. Mr.Vishal Munjal, learned Addl. A.G. Punjab opposes the bail on the ground that as per entry No.33 of the Notification, any quantity beyond 500 grams of Dextropropoxyphene is termed as commercial quantity and as such, commercial quantity of the contraband has been recovered from the conscious possession of the petitioner and keeping in view the heavy quantity of contraband and the provisions of Section 37 of the Act, the petitioner cannot be granted the benefit of bail at this stage. Heard the arguments of learned counsel for the parties Crl.Misc No M- 31299 of 2010 [3] and have also gone through the contents of the FIR and other documents available on the file. Admittedly, the petitioner is a partnership firm registered with Registrar of Firms, Punjab and has licence to sell, stock or exhibit or offer for sale, or distribute by wholesale and the licence is valid up to 18th March, 2013. As per allegations in the FIR , the petitioner was found to be in unauthorised possession of intoxicating capsules and injections which were alleged to be found in the dicky of the scooter. The confiscated medicines described by the police as intoxicating capsules and injections were purchased by the firm of the petitioner vide Invoice No. 7430 dated 2.9.2010 from Mahalaxmi Medicos, Jalandhar and vide Invoice No.4659 and 4661 dated 6.9.2010 from Mittu Medical Agencies, Jalandhar City and as such he was in authorised possession of the confiscated material. Dextropropoxyphene and its salts are categorized as Prescription Drug in Schedule 'H' of Drugs and Cosmetics Rules 1945 under rule 65 & 97 and, therefore, the Drugs and Cosmetics Act 1940 as well as Drugs and Cosmetics Rules 1945 will be applicable to the confiscated material instead of the N.D.P.S. Act, 1985 as applied by the police. In State of Uttaranchal v. Rajesh Kumar Gupta's case (supra) certain drugs were seized and it was found that none of the drugs contained contraband in excess of permissible limits. The Court was of the opinion that no offence under Sections 21 and 22 of the N.D.P.S. Act was made out. It was also held that the plea that preparation was being used for intoxication purpose was not enough Crl.Misc No M- 31299 of 2010 [4] for prosecution of accused and if at all there is contravention by the petitioner that may be of the provisions of Drugs and Cosmetic Act, 1940 for which the complaint filed by the Drugs Inspector lies to the Court and no FIR and no prosecution by the police. An identical view has also been taken by this Court in Chandan Singh v. State of Haryana, 2004(1) R.C.R.(Crl.) 724 (P&H). In State of Uttaranchal v. Rajesh Kumar Gupta's case (supra), huge quantity of allopathic medicines containing psychotropic substances were recovered from the accused who was working as medical practitioner. The drugs were used for medical purposes. The Hon'ble Apex Court held that drugs fell within the purview of schedule 'G' and 'H' of the Drugs and Cosmetics Act and prima-facie provisions of N.D.P.S.Act will not be applicable. In the present case, the petitioner was found to be in possession of capsules Proxyvon, parvon spas, spasmo, proxyvon and injections Nargesic and Avil. Since the petitioner is in custody since 7th September, 2010 and challan has not yet been presented and trial may take some time in final conclusion, no useful purpose will be served by keeping the petitioner in custody. The petition is allowed and petitioner Ashwani Kumar Tuli is directed to be released on bail on his furnishing bail bond and surety bond to the satisfaction of trial Court, Jalandhar. (DAYA CHAUDHARY) December 01, 2010 JUDGE raghav