Crl. Misc. No. M-14115 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-14115 of 2009 Date of Decision : April 27, 2010 Kashmir Chand son of Mathura Dass and another .... PETITIONERS VERSUS Central Bureau of Investigation .... RESPONDENT CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Akshay Jain, Advocate for the petitioners. Mr.Sukhdeep Singh Sandhu, Advocate, for C.B.I.-respondent. * * * AUGUSTINE GEORGE MASIH, J. Prayer in the present petition is for quashing of FIR No. R.C. SIB 2006 E 003, dated 5.2.2006 registered under Section 29 read with Sections 8 and 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as 'NDPS Act, 1985) and 27 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the D&C Act, 1940) at Crl. Misc. No. M-14115 of 2009 2 Police Station I/EOU.V, New Delhi (Annexure P-1) on the ground that no offence under the N.D.P.S. Act, 1985 is made out against the petitioners and for the offence under Section 27 of the D&C Act, 1940. No FIR could be registered under Section 32 of the D&C Act, 1940 and only the complaint could have been filed before the competent Court. Counsel for the petitioners contends that petitioner No. 1 Kashmir Chand was the proprietor of M/s Suraj Medical Agency, Court Road, Moga and petitioner No. 2 Roshan Lal was the competent employee under the D&C Act, 1940 and the Rules, of the firm at the time when a joint raid was conducted by the Central Bureau of Investigation along with the officers of Drug Department of Punjab at the business premises where the business of medicines under Drugs License No. 54850W and 5267W was being done. The license was renewed from time to time and was issued by the State Drug Controlling and Licensing Authority, Chandigarh. The petitioners were authorized stockists and were doing the business of medicines as per the License issued by the Licensing Authority. On 01.09.2006, a joint raid was conducted by the Central Bureau of Investigation along with officers of the Drug Department of Punjab on the business premises in the presence of petitioner No. 2. Certain contraventions were found at the time of the said inspection/raid. Petitioner No. 2 could not produce the purchase record of 19270, 2ml ampoules of Bup-Norphine batch No. 1451 manufactured by M/s Global Labs, Mohali. Proceedings were initiated for cancellation of the license for the violation of its terms and the license of the petitioner was cancelled by the State Drug Controlling and Licensing Authority Punjab, Chandigarh vide order dated 19.09.2008. It so transpired that initially a case was registered in Central Bureau of Investigation/Economic Offences Unit-V Crl. Misc. No. M-14115 of 2009 3 Branch, New Delhi on 05.02.2006 against accused persons namely Kunal Kaushal, Kanhiya Lal, Rahul Goyal and Manish Goyal, all residents of Distict Muzaffarnagar, Uttar Pradesh under Sections 8, 22 read with Section 29 of the NDPS Act, 1985 as they were allegedly found in possession of G-Norphine Buprenorphine injections at Shamli, District Muzaffarnagar, Uttar Pradesh on 04.02.2006 without any valid authority/documents. After investigation, charge-sheet in the said case was presented against 51 accused persons/firms including petitioners in the Court of Special Judge, NDPS Cases, Muzaffarnagar, Uttar Pradesh. On the basis of the raid conducted at the business premises of the petitioners, new charge-sheet was presented against the petitioners before the learned Special Judge, Moga (Annexure A-1). He submits that in one F.I.R., trial cannot be held at two places i.e. one at Muzaffarnagar and the other at Moga. His further submission is that the petitioners have been falsely implicated in the present case. The alleged recovery of medicines does not fall under Section 29 read with Sections 8 and 22 of the NDPS Act, 1985 and under Section 27 of the D&C Act, 1940. Moreover, if any violation is found as per the allegations, only the complaint under Section 18-B of the D&C Act, 1940 could be filed by the Drugs Inspector, who has been authorized under Sections 21 and 22 of the D&C Act, 1940 to search and seize the medicines . If such a complaint is lodged and that to, with a competent Court as per Section 32 of the D&C Act, 1940 and the petitioners are found guilty, the penalty can be imposed only under Section 28-A of the D&C Act, 1940. He contends that the offence under Section 27 of the D&C Act, 1940 is not made out against the petitioners as penalty under Section 27 of the D&C Act, 1940 can be imposed only on the persons who had violated the provisions of Sections 17, 17-A and 17-B of Crl. Misc. No. M-14115 of 2009 4 the D&C Act, 1940. As per the allegations and evidence available on record, the petitioners have not violated any of the provisions attracting the penalty under Section 27 of the D&C Act, 1940 as the alleged recovered drug does not fall under misbranded, adulterated and spurious drugs. As regards the offence under Section 22 of the NDPS Act is concerned, he contends that the narcotic substance, which has been recovered from the petitioners, is a drug which does not fall under the schedule of NDPS Act. Bup-Norphine is a scheduled “H” drug under the D&C Act, 1940 and further as per Chapter 7 of the psychotropic substance mentioned in the Narcotic Drugs and Psychotropic Substance Rules, 1985, the said psychotropic substance does not fall in Schedule-I, so the same cannot be covered under the NDPS Act. In support of this contention, counsel for the petitioners relies upon the judgment of Delhi High Court in the case of Rajinder Gupta etc vs. State, 2006 Crl. L.J. 674 as also the judgment of the Hon'ble Supreme Court in the case of State of Uttaranchal vs. Rajesh Kumar Gupta, 2006 (4) RCR (Criminal) 974. In support of the contention that since the petitioners were holding a valid license under the D&C Act, the possession of the narcotic substance, which has been recovered from the petitioners, would not amount to violation of the provisions of the NDPS Act but would be covered by the provisions of the D&C Act as it would amount to violation of the conditions of license as it is alleged that petitioner No. 2 was unable to produce the proof of purchase record of 19270 2ml ampoules of Bup-Norphine batch No. 1451 manufactured by M/s Global Labs, Mohali, he relies upon the judgment of this Court in the case of Deep Kumar and others vs. State of Punjab, 1997 Crl.L.J. 3104, Tejinder Singh @ Monto vs. State of Punjab, 1997 (3) RCR (Criminal) 645, Leela Ram vs. State of Punjab, Crl. Misc. No. M-14115 of 2009 5 2002 (3) RCR (Criminal) 805. Counsel submits that Section 8 of the NDPS Act, 1985 will not be attracted to the present case in the light of Section 22 of the NDPS Act as also Rules 64 to 67 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as 'NDPS Rules, 1985) which specifically provide for the exemption whether the D&C Act and the Rules framed thereunder are applicable to the possession of the psychotropic substances. He, on this basis, contends that no offence is made out against the petitioners and, therefore, the impugned FIR (Annexure P-1) deserves to be quashed. On the other hand, counsel for the respondent submits that during the course of investigation in the FIR, a raid was conducted at the premises of M/s Gold Star Pharmaceuticals Pvt. Ltd. Moga, Punjab as it came to the notice of the investigating agency that apart from M/s Gold Star Pharmaceuticals Pvt. Ltd., the directors of the said company were running two other medical shops/firms in the name of M/s Suraj Medical Agencies, Moga, Punjab and M/s Suraj Medical Store, Moga, Punjab. Since sufficient evidence, oral as well as documentary, had emerged in the record of the case against the accused persons including the petitioners, a charge-sheet against them was filed in the Court of competent jurisdiction at Moga on 26.02.2009 as this being a separate distinct offence/conspiracy/incident though detected during the course of investigation, the Special Judge, Moga had taken cognizance of the charge-sheet filed by the respondent-CBI and had issued non-bailable warrant of arrest against the accused persons including the petitioners. He submits that the contention raised by the petitioners that for an FIR, which has been registered at Delhi, already charge-sheet has been submitted before the Special Judge, NDPS Cases, Muzaffarnagar, Uttar Crl. Misc. No. M-14115 of 2009 6 Pradesh and, therefore, charge-sheet cannot be submitted at Moga. He states that a Transfer Petition (Crl.) No. 245 of 2009 was preferred by Rajinder Kapoor, Proprietor of M/s Global Laboratories, Mohali, Punjab, who is a co-accused with the petitioners, before the Hon'ble Supreme Court, which ground has not been accepted by the Hon'ble Supreme Court and upon hearing the counsel for the parties, the said Transfer Petition stands dismissed vide order dated 13.11.2009. He thus contends that the stand of the petitioners cannot be accepted and the charge-sheet filed against the petitioners is in accordance with law. His further contention is that the recovery, which has been effected from the petitioners clearly falls under the provisions of the NDPS Act, 1985 as Bupre-Norphine is a psychotropic substance which finds mention at Sr. No. 92 of the Schedule attached to the Act. Psychotropic substances have been defined under Section 2 (xxiii) of the NDPS Act, 1985. He contends that Buprenorphine Hydrochloride is listed as Schedule 'H' Drug under the Drugs and Cosmetic Rules, 1945 (hereinafter referred to as D&C Rules, 1945). Rule 97 of the D&C Rules, 1945 clearly states that substance listed under Schedule 'H' as well as under the NDPS Act shall come within the purview of D&C Act, 1940 as well as under the NDPS Act, 1985. He, on this basis, contends that the offence under the NDPS Act, 1985 is clearly made out against the petitioners and thus, FIR registered against the petitioners as also the charge-sheet submitted before the Special Judge, Moga deserves to be upheld. I have heard the counsel for the parties and have gone through the records of the case. For understanding the intricacies of the provisions of the NDPS Act, 1985, NDPS Rules, 1985 and its co-relationship with the D&C Crl. Misc. No. M-14115 of 2009 7 Act, 1940 and the D&C Rules, 1945, the reference to the provisions of the said Acts and Rules would be essential. The relevant Sections under the NDPS Act would be Section 2 (xxiii), Section 8, Section 21, Section 22, Section 29, Section 80 and the relevant Rules would be Rules 64 to 67 of the NDPS Rules, 1985 and Rules 65 and 97 of the D&C Rules, 1945. Section 2 (xxiii) of the NDPS Act, 1985 reads as follows:- “2 (xxiii) “psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;” The Schedule to the Act gives a list of psychotropic substances. Entry No. 92 makes Buprenorphine as a psychotropic substance. Section 8 of the NDPS Act, 1985 reads as follows:- “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 (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter- State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, Crl. Misc. No. M-14115 of 2009 8 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 license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization: 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: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]” Section 21 of the NDPS Act, 1985 reads as follows:- “[21. Punishment for contravention in relation to manufactured drugs and preparations.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six Crl. Misc. No. M-14115 of 2009 9 months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]” Section 22 of the NDPS Act, 1985 reads as follows:- “[22. Punishment for contravention in relation to psychotropic substances.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with Crl. Misc. No. M-14115 of 2009 10 rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]” Section 29 of the NDPS Act, 1985 reads as follows:- “29. Punishment for abetment and criminal conspiracy.- (1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this Section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it Crl. Misc. No. M-14115 of 2009 11 such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.” Section 80 of the NDPS Act, 1985 reads as follows:- “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 (23 of 1940) or the rules made thereunder.” Rules 64 to 67 of the NDPS Rules, 1985, on which reliance has been heavily made by the counsel for the petitioners, read as follows:- “64. General prohibition.-No person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. 65. Manufacture of psychotropic substances.-(1) Subject to the provisions of sub-rule (2), the manufacture of any of the psychotropic substances other than those specified in Schedule I shall be in accordance with the conditions of a license granted under the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the 1945 Rules) framed under the Drugs and Cosmetics Act, 1940 (23 of 1940), by an authority in charge of Drugs Control in a State appointed by the State Government in this behalf: [Provided that the authority in charge of drug control in a State referred to above may issue a license to manufacture a Crl. Misc. No. M-14115 of 2009 12 psychotropic substance specified in Schedule III for the purpose of export only;] (2) The authority in charge of drugs control in a State (hereinafter referred to as the Licensing Authority) shall consult the Drugs Controller (India) in regard to the assessed annual requirements of each of the psychotropic substances in bulk form referred to in sub-rule (1) in the country and taking into account the requirement of such psychotropic substances in the State, the quantity of such substance required for supply to other manufacturers outside the State and the quantity of such substance required for reasonable inventory to be held by a manufacturer, shall specify, by order, the limit of the quantity of such substance which may be manufactured by the manufacturer in the State. (3) The quantity of the said psychotropic substance which may be manufactured by a licensee in an year shall be intimated by the Licensing Authority to the licensee at the time of issuing the license: [Provided that nothing contained in this rule shall apply in case the psychotropic substances specified in Schedule I are manufactured, possessed, transported, imported, inter- State, exported inter-State, sold, purchased, consumed or used subject to other provisions of this Chapter which applies to psychotropic substances which are not included in Schedule I and for the purposes mentioned in Chapter VIIA: Provided further that the authority in charge of the drug control in a State referred to in sub-rule (2) of rule 65 shall consult the Narcotics Commissioner before issuing a license under rule 65 in respect of psychotropic substances included in Crl. Misc. No. M-14115 of 2009 13 Schedule I [and Schedule III].] 66. Possession, etc., of psychotropic substances.-(1) No person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these Rules. (2) Notwithstanding anything contained in sub-rule (1), any research institution or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorized to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorized under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person: Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time: [Provided further that an individual may possess the quantity of exceeding one hundred dosage units at a time [but not exceeding three hundred dosage units at a time] for his personal long term medical use if specifically prescribed by a Registered Medical Practitioner.] (3)The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the Crl. Misc. No. M-14115 of 2009 14 psychotropic substance in their possession. 67. Transport of psychotropic substance.-(1) Subject to the provisions of rule 64, no consignment of psychotropic substance shall be transported, imported inter-State or exported inter-State unless such consignment is accompanied by a consignment note in [Form 6] appended to these Rules and in the manner as provided hereinafter. (2) The consignment note referred in sub-rule (1) shall be prepared in triplicate, and the original and duplicate copies of the said note shall be sent along with the consignment of psychotropic substances to the consignee who shall return the duplicate copy of the note to the consignor for his use after endorsing on the original and duplicate copies the particulars of the receipt of the quantity consigned. (3) the consignor shall make necessary entries on the triplicate copy of the said note with reference to the receipt of quantity of the psychotropic substances indicated on that duplicate copy of the note. (4) the consignor and consignee shall keep such consignment note for a period of two years and the said note may be inspected at any time by an officer authorized in this behalf by the Central Government. [Provided that consignment note in Form 6 shall not apply in cases where the sale of the psychotropic substance is accompanied by a sale bill or invoice or cash memo or any other document duly signed by the consignor or his authorized signatory, which shall include the following information about the consignment:- Crl. Misc. No. M-14115 of 2009 15 (a) name, address and license number of the consignor and the consignee; (b) description, batch number and quantity; (c) mode and particulars of transport: Provided further that such document shall be preserved by consignor and consignee for a period of two years for inspection by the officers referred to in sub-rule (4) above. Explanation.-Where the consignee is a research institution, registered medical practitioner, hospital or dispensary, the requirement of incorporating license number of consignee shall not be applicable.]” Rules 65 and 97 of the D&C Rules, 1945, reliance whereon has been laid by the counsel for the respondent, read as follows:- “65. Condition of licences: -Licences in [Forms 20,20-A, 20-B, 20-F, 20-G, 21 and 21-B] shall be subject to the conditions stated therein and to the following general conditions: - [(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 in 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, (b) the date of supply, Crl. Misc. No. M-14115 of 2009 16 (c) the name and address of the prescriber, [(d) the name and