CRR No. 165 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 165 of 2009 Date of decision: 28.01.2010 Pawan Kumar and another ........ petitioners Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. L S Sidhu,, Advocate for the petitioners Ms Ravinder Kaur Nihalsinghwala, Addl. A G, Punjab for the respondent - State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. The present revision petition is against the order dated 15.11.2008 passed by the Court of Special Judge, SAS, Nagar Mohali, vide which, the lower Court has framed charges against the petitioners for offences under Sections 22/61/85 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short 'the NDPS Act'). Learned counsel for the petitioners states that the petitioners are the agents of Firm M/s Paras Vet Pharma, Nattan Wali Gali, Backside Indira Market, Patiala, District Patiala. The said firm is CRR No. 165 of 2009 2 carrying on the business of wholesale Chemists and Druggists at Patiala having drug licence No. Drugs (4) Pb. 2005/9597 valid up to 11.08.2010. The firm is authorised stockiest of a number of companies, dealing in wholesale medicines, having huge stocks to be supplied to the retailers for further sale to the consumer. On 10.08.2008 and 11.08.2008, the petitioners took delivery of various drugs for and on behalf of M/s Paras Vet Pharma from various wholesale agencies against the orders placed by M/s Paras Vet Pharma with these agencies. It is further stated that as per the alleged incident, i.e., on 12.08.2008, the petitioners while travelling in a car were found in possession of 280 vials (bottles) of Rexcof (syrup) 100 ml each, Lomotil tablets, Spasmocip Plus capsules, Re-dexavon capsules, Spasmo Proxivon capules, Promon Spas capsules. Since the petitioners could not produce any licence or permit regarding the possession of the medicines, a case under Section 22/61/85 of NDPS Act and 18-C of Drugs and Cosmetics Act was registered against them vide FIR No. 243 dated 12.08.2008 at Police Station Kharar, District SAS Nagar. The sample parcels of the drugs allegedly recovered from the petitioners and the co-accused were sent to the FSL, Punjab at Chandigarh. According to the report submitted by the FSL, Punjab, so far as the drugs contained in parcels No. 1, 2, 3 and 5 are concerned, these were found to contain tablets Lomotil and Momotil, containing ingredients as follows:- -2.4 mg/Tab Diphenoxylate Hydrochloride CRR No. 165 of 2009 3 -0.025mg/Tab Atropine Sulphate The drug mentioned against parcel No. 4 is Rexcof Syrup, containing ingredients as follows:- -3.9 mg/5 ml Chlorpheniramine Maleate -9.8 mg/5 ml Codeine Phosphate Parcle No. 6, 7, 8, 9 and 10 were found to contain Capsule Dexovon, Capsule Spasmo Proxyvon, Capsule Promon Spas and Capsule Spasmocip Plus, containing ingredients as follows:- -Dextropropoxyphene Hydrochloride ranging between 64.5 mg/capsule to 64.9 mg/capsule. -Dextropropoxyphene Napsylate – 99.9 mg/capsule. -Paracetamol ranging between 399.6 mg/capsule to 399.9 mg/capsule. -Dicyclomine Hydrochloride ranging between 9.8 mg/capsule to 9.9 mg/capsule. On the basis of the report of the FSL, Punjab, learned counsel for the petitioners stated that no offence under Sections 22/61/85 of NDPS Act or the rules framed thereunder is made out against the petitioners as none of the drugs allegedly recovered from the possession of the petitioners fall within NDPS Act. It is stated that the same falls under the Drugs and Cosmetic Act. As per the drugs contained in parcels No.1,2 3 and 5 are concerned, reliance was placed on the judgement of this Court rendered in the case of Deep Kumar v. State of Punjab, 1997 (2) RCR 417, which reads as under:- “12. Parcel No. 4 was found to contain Lomotil CRR No. 165 of 2009 4 tablets. 'Lomotil' consists of 2.5 mg. of Disphenixylate Hydochloride and 0.025 of Atropine Sulphate as ingredients, which are not covered by the Narcotic Act. The possession or any transaction in the said substance is not an offence under the Narcotic Act as held by a single Bench of this Court in CRM No. 526 M of 1996 titled as Natjit Kaur alias Bittu v. The State of Punjab, decided on 06.02.1996.” With respect to parcel No. 4 of Rexcof Syrup, it was stated that the same is commonly known as cough syrup. It is manufactured by M/s Cipla India Ltd. and has been established in therapeutic practice for the treatment of dry cough. It has been found that each 5 ml of liquid contains 9.8 mg of codeine phosphate, which is within the permissible limit of 100 mg. per dosage unit. With respect of other parcels, it was stated that the presence of Dextroprophoxyphene per dosage unit in the capsules is within the permissible limit i.e. 135 mg. Moreover, these drugs have been established in therapeutic practice as pain relievers. The substance Paracetamol and Dicyclomine Hydrochloride do not fall in Scheme I annexed to the Rules. In view of Rules 64 to 66, manufacturing, possession, sale, purchase, consumption or use of any of these substances is governed by the Drugs Act and the Rules made thereunder. In view of the above, learned counsel for the petitioners has made out a case that the petitioners had valid licence to possess and sell the medicines as mentioned in the FIR and, therefore, the petitioners CRR No. 165 of 2009 5 have been falsely implicated in the present case. Learned counsel for the petitioners brought to the notice of the Court the order dated 22.03.2006 passed in Criminal Appeal No. 1834 of 2003, whereby on directions of this Court, the State Government had constituted a Committee to go into all such matters and see in case any offence under the NDPS Act is made out in those cases where the recovery of drugs is involved and specially when these persons are having licence to run Chemist Shop. Vide this Court order dated 22.01.2009, the case was adjourned to await the report of the committee constituted for the purpose of determining the criminal liability in such cases. In compliance with the aforesaid orders, meeting regarding review of the above said case was held on 03.06.2009 and the SIT has sent its report vide forwarding letter dated 22.06.2009 of the Additional Director General of Police, Crime, Punjab Chandigarh. As per the said report, the Technical opinion of Drug inspector is as under:- “Recovered medicines contains salts of substances mentioned in notification No. 8226(e) dated 14.11.1985 at serial No. 87 and 35.” Thereafter, the Committee recommended as under:- “The accused do not possesses valid licence in his name. The recovered medicines do not contain salts of Psychotropic Substances. Hence, he deserves to be prosecuted under Drug and Cosmetics Act, but not in NDPS Act.” CRR No. 165 of 2009 6 In view of the recommendations of the Committee and above discussion, the petitioner can be prosecuted only under the Drugs and Cosmetic Act. Accordingly, the present revision petition is allowed and the impugned order dated 15.11.2008 (Annexure P-1) passed by the Special Judge, SAS Magar, Mohali wereby the petitioners have been charged for offences under Sections 22/61/85 of NDPS Act in consequence of FIR No. 243 dated 12.08.2008 registered at Police Station Kharar, District SAS Nagar is quashed. However, the State is at liberty to proceed against the petitioners under the relevant provisions of the Drugs and Cosmetic Act. (Nirmaljit Kaur) Judge January 28, 2010 mohan