Criminal Revision No. 975 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 975 of 2004 Date of Decision : 25.5.2011. Gurmit Singh ...... Petitioner Versus State of Punjab ...... Respondent CORAM : HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. P.S. Ahluwalia, Advocate, for the petitioner. Mr. Ranvir S. Chauhan, Addl. AG, Punjab, assisted by Mr. Pardeep Kumar, Asst. Drug Controller, Govt. of Punjab, Chandigarh. NAWAB SINGH J.(ORAL) Challenge is to the order dated March 1st, 2004 passed by Special Judge, Sangrur, whereby, petitioner was ordered to be charged under Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and was charge- sheeted accordingly. 2. On December 9th, 2003 at about 4.15 p.m. a raid was conducted at the chemist shop in the name and style M/s. Rai Medicos, Malerkota. The petitioner was found in possession of 157 capsules of Parvon Spas, 7 vials of Phensedryal, 12 injections of Fortwin without a valid licence. 3. In reply filed by the state, it has been stated that the drugs were sent to the Forensic Science Laboratory, Punjab Chandigarh for analysis and found to be containing ingredients of Pentazocine mentioned at serial No.27 in the list of 'Psychotropic Substance' in the schedule to the NDPS Act and as such, offence under Section 22 of the NDPS Act was made out. 4. Learned counsel for the petitioner has urged that the drugs were recovered from the premisses of M/s Rai Medicos, Malerkotla which was owned by Jatinder Kumar and Nirmal Singh bothers of the petitioner. The petitioner was the only person present Criminal Revision No. 975 of 2004 2 on the shop at the time, the raid was conducted. Be that as it may, the drug Pentazocine is mentioned at serial No.392 in the schedule H of the Drugs & Cosmetics Rules, 1945 and as such, does not fall within the purview of the NDPS Act. 5. The drug Pentazocine is a allopathic drug mentioned in schedule H of the Drugs & Cosmetics Act, 1940. Indeed, it is being used for medical purposes. This drug does not find mentioned in schedule-I appended to the NDPS Rules and as such the provisions of Section 8 of the NDPS Act would have no application whatsoever. It states that no person shall cultivate any coca plant or gather any portion of coca plant or cultivate the opium poppy or any cannabis plant or 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 except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the NDPS 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 authorization also in accordance with the terms and conditions of such licence, permit or authorization 6. Chapter VIIA of the NDPS Rules 1985 provides for special provision regarding manufacture, import, export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes. From the aforesaid Section/Rules, it is clear that if any drug is mentioned in the list of Psychotropic Substances as mentioned in the Schedule to the NDPS Act, as in the present case, it does not mean that it shall attract the penal offence under the NDPS Act. In State of Uttranchal vs. Rajesh Kumar Gupta 2006(4) RCR (Criminal) 974 accused-respondent therein was an Ayurvedacharya. He used to operate from two clinics. A raid was conducted on the allegation that in his medicines, he had been using unlabeled tablets containing psychotropic substance making the unsuspected patients addicted to the drugs. A few medicines were recovered. He filed application for bail which was accepted by the Criminal Revision No. 975 of 2004 3 High Court. Against the said order of the High Court, special leave petition was filed before the Hon'ble Supreme Court by the state of Uttranchal. The same was dismissed. While dismissing the petition, it was observed by the Hon'ble Supreme Court as under:- “18. Respondent admittedly possesses an Ayurveda Shastri degree. It is stated that by reason of a notification issued by the State of Uttar Pradesh dated 24.2.2003, the practitioners of Ayurvedic system of medicines are authorised to prescribe allopathic medicines also. Respondent runs a clinic commonly known as 'Neeraj Clinic'. He is said to be assisted by eight other medical practitioners being Allopathic and Ayurvedic doctors. It is also not in dispute that only seven medicines were seized and they are mentioned in Schedules G and H of the Drugs and Cosmetics Act. In this regard, we may notice the following chart : S. No. Medicine seized Schedule H Drugs & Cosmetics Act The Schedule 1985 Act Schedule I 1985 Rules 1. Epilan C. Phenobarbi tone Yes Entry 69 - 2. Phensobar - 50 Yes - - 3. Chlorodiaze poxide Yes Entry 36 - 4. Carbin Yes - - 5. Wefere (ayurvedic) - - - Criminal Revision No. 975 of 2004 4 6. Phenso (Schedule - G) - - - 7. Epibar - 30 Yes - - 19. It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Act. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlorodiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in the Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder. 20. In view of the fact that all the drugs being Item Nos. 1, 2, 3, 4, 6 & 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Act indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes". 7. In view of the above legal position, no case is made out under the NDPS Act against the petitioner. Otherwise too, by a notification dated July 13th, 2010, Rule 65-A was introduced in the NDPS Rules which provides that no person shall sell, purchase, consume, or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945. This rule further makes it Criminal Revision No. 975 of 2004 5 clear that a person can sell, purchase or consume the said drug in accordance with the Drugs and Cosmetics Rules, 1945. In view of this, possession of Pentazocine does not come within the purview of the NDPS Act. Learned State counsel could not controvert the proposition. 8. For the reasons recorded supra, the revision petition is accepted and the order under challenge is set aside. The petitioner stands discharged. However, the prosecution is at liberty to prosecute the petitioner under the Drugs & Cosmetics Act, 1940 or any other law for the time being in force. (NAWAB SINGH) JUDGE 25.5.2011. SN Whether refer to reporter: Yes/No