Crl. Misc. No.M-14598 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-14598 of 2008 Date of Decision: 17.01.2011 Manjit Singh ....Petitioner Versus State of Punjab ....Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. S.S. Majithia, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 of Cr.P.C for quashing FIR No.298 dated 24.09.2007 for offences under Sections 22/61/85 of NDPS Act registered at Police Station City Tarn Taran, District Tarn Taran. Brief facts of the case are that the petitioner is a licensed Chemist and is running Chemist Shop under the name and style of M/s R.K. Medicine Centre and having valid drug license upto 18.07.2010 duly issued by the State Drug Controller. Punjab, Chandigarh. The petitioner, as a Chemist, for the purpose of business, used to buy and sell various medicines from the wholesalers. The story of the prosecution is that on secret information and during Nakabandi, the petitioner was apprehended on his scooter and the medicines Microlit (5000 Tablets) Subrinol (2000 Tablets) and Pyremol Spasm (2000 Capsules) were recovered from him. The police registered a case against the petitioner as mentioned in the FIR Crl. Misc. No.M-14598 of 2008 2 that he could not produce licence/permit in carrying the said medicines, whereas, the petitioner is having valid license for selling the medicines. The matter was sent to the Committee by the State Government. The opinion of the Drug Inspector is as under :- “ As per the opinion of the Distt. Drugs Inspector Jalandhar, the post of the drugs inspector is notified under Section 21 of the Drugs & Cosmetic Act 1940 and not under the NDPS Act 1985. The drugs recovered vide recovery memo are covered at Sr. No. 58 & 87 of the Notification No. 826 E dated 1/11/85 as they contain salt Dextropropoxyphene & Diphenoxylate and hence not covered under the NDPS Act 1985 being drug formulations. Further the drugs paracetamol. Acetaminophen is an analgesic & antipyretic drug whereas the drug Diclomine is anti- spasmodic drug and both the drugs are schedule drugs and not covered under the NDPS Act 1985. As per the opinion of the Drugs Inspector Distt. Tarn Taran according to the Notification No. 11/85 dated 14.11.1985 S.O. 826 (E) the Diphenoxylated fall at Sr. No. 58 of the said notification where it is clearly mentioned that all the preparations containing per dosage unit not more than 2.5 mg of Diphenoxylatge calculated as base is exempt from NDPS. Recommendations of the Committee is as follows:- On perusal of the Chemical Analysis & Drugs Inspector's report it is revealed that the drugs recovered contain the salt of Dextropropoxyphene, Diphenoxylate, paracetamol & Diclomine. The opinion of the Drugs Inspector applies only if the drugs are recovered from the shop of the accused petitioner who must be the holder of a valid drug sale license but here the drugs (9000 tabs.) have not been recovered from his shop situated at Amritsar rather these drugs have been recovered from Tarn Taran city. Moreover, the petitioner is not a holder of a valid Crl. Misc. No.M-14598 of 2008 3 drugs sale license in his name. The drugs sale license No. 17707/OW & 17508/W issued on 19.07.05, valid till 18.07.2010, produced by the petitioner has been issued in favour of R.K.Medicine Centre, Bazar No. 3, Kot Mit Singh, Tarn Taran Road, Amritsar with qualified person Incharge Maninder Singh who is son of the petitioner and the license is not in the name of the petitioner. Here in this case the shop of the petitioner is on Tarn Taran Road in Amritsar city but it is worth mentioning that the drugs have been recovered at Tarn Taran. The petitioner has produced a bill regarding the procurement of the drugs in question issued by Harpreet Traders. Wholesale Chemists and Druggists, Laxmi Market, Katra Sher Singh Amritsar in favour of R.K. Medicine Centre. Further the petitioner has produced another bill issued by R.K.Medicine Centre in favour of Khalsa Medical Store, Near Gurudwara Lalkar Sahib, Gohalwarh, Tarn Taran but the proprietor of above said Khalsa Medical Store Sandeep Singh s/o Sh. Parmatma Singh, resident of Gohalwarh, Tarn Taran has stated in his statement that he did not place any order with R.K. Medicine Centre regarding questioned drugs and petitioner failed to produce any such order which states that he was not authorized to possess the drugs in question recovered from him in Tarn Taran City as he is nor a valid drugs sale license holder and neither possessed a valid written purchase order. Therefore, the provisions of NDPS Act, 1985, are attracted in this case.” Thus, it is evident from the above facts that the drugs contain salt Dextropropoxyphene, Diphenoxylate, paracetamol and Diclomine. In the opinion of the Drug Inspector, these drugs are not covered under the NDPS Act, 1985. However, the opinion that the provisions of NDPS are attracted has been given on the ground that the said drugs were recovered from the petitioner in Tarn Taran City and he was not a valid drugs sale Crl. Misc. No.M-14598 of 2008 4 license holder and was neither possessed a valid written purchase order. Even as per the report of the Review Committee, the license has been issued in favour of R.K. Medicine Centre, Bazar No.3, Kot Mit Singh, Taran Tarn Road, Amritsar with qualified person incharge Maninder Singh, who is son of the petitioner and the license is not in the name of the petitioner. Even otherwise, the offence as alleged in the FIR can be dealt with under the Drugs and Cosmetics Act, 1940. 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.- 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 cosmetic], 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 ormade 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 Crl. Misc. No.M-14598 of 2008 5 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, 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:- In the present case, the son of the petitioner has a valid licence. Even otherwise, in case the allegation is that there is no valid licence and the petitioner is in possession without the valid license, the offence can be dealt with by the Drugs and Cosmetics Act, 1940. The rules framed there are complete and sufficient to deal with the same. Thus, the prosecution allegation disclose commission of an Crl. Misc. No.M-14598 of 2008 6 offence under the Drugs and Cosmetics Act and no offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 is made out against the petitioner. Accordingly, the present petition is accepted and the proceedings launched against the petitioner under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 by way of registration of FIR are quashed. However, the concerned Drug Inspector is at liberty to proceed against the petitioner under the relevant provisions of the Drugs and Cosmetic Act by filing a criminal complaint, if so advised. (NIRMALJIT KAUR) 17.01.2011 JUDGE gurpreet