Crl. Misc. No.M-11457 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-11457 of 2010 Date of Decision: 13.05.2010 Ramesh Kumar ....Petitioner Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. S.K. Jain, 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. (ORAL) This is a petition under Section 439 Cr.P.C for grant of concession of bail in FIR No.15 dated 04.03.2010 under Sections 22/25/61/85 of the Narcotics Drugs and Psychotropic Substances Act, 1985 read with Section 420 IPC registered at Police Station Joga, District Mansa during the pendency of the trial. The case of the prosecution against the accused is that on 04.03.2010 at 6.15 p.m. in the area of Village, Ralla, ASI Major Singh recovered 12000 tablets of Phenotil, 6000 tablets of Lomotil and 2 kilo 100 grams intoxicating powder. It is contended by learned counsel for the petitioner that as per the Forensic Science Laboratory report, the ingredients present are Crl. Misc. No.M-11457 of 2010 2 Diphenoxylate hydrochloride and Atropine Sulphate and the quantity in each of the three parcles is 2.4 mg/tablet, 2.3 mg/tablet and 3.9% in the third parcle, which is the powder. As per Item No.58 of the notification dated 14.11.1985, the dosage per tablet should not be more than 2.5 mg. It was, accordingly, submitted by learned counsel for the petitioner that the ingredients present i.e. Diphenoxylate hydrochloride and Atropine Sulphate is less than 2.5 mg/tablet and only 3.9% in the third parcel, containing the powder. On the basis of the above, learned counsel for the petitioner contended that Diphenoxylate and its salts is Schedule `H' Drug as provided under Drugs and Cosmetics Rules, 1945 and in view of the exception contained in Section 8 of the NDPS Act, the same do not fall within the preview of NDPS Act. Moreover, Chapter 7 of the NDPS Rules, which relates to the Psychotropic Substance, also makes it amply clear that the recovery of Diphenoxylate even in powdered form do not fall within the ambit of NDPS Act and, therefore, the petitioner is entitled to the concession of bail during the pendency of the trial. Learned counsel for the petitioner further stated that the allegation against the petitioner is false. In fact, the recovery was in the form of tablet but the respondent, in order to make the case against the petitioner under NDPS Act crushed the tablets and turned them into the form of powder. Learned counsel for the respondent-State, however, vehemently opposed the same and stated that as per the Notification dated 19.10.2001 and as per the Item no.44 Diphenoxylate hydrochloride is a narcotic drug and therefore, the recovery of the same invites an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985. It was, further, contended that the petitioner may have been correct, in case, the recovery of the same was in the tablet form. However, since the recovery Crl. Misc. No.M-11457 of 2010 3 was in the form of powder, the same was obviously not for the purpose of medicine. The argument of learned counsel for the State that the recovery of Diphenoxylate was in the powder form and, therefore, liable to attract the offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 may have been correct, in case, the powder was in pure form of Diphenoxylate hydrochloride . However, it is evident from the report of the Forensic Science Laboratory that there was only 3.9% of the Diphenoxylate hydrochloride in 100 gms of while coloured powder material. Thus, making it almost equivalent to the presence of only less than 2.5 mg/tablet and in view of the same, possibility that the powder was earlier in tablet form cannot be ruled out at this stage. Hon'ble the Suprme Court, in the case titled as State of Uttaranchal v. Rajesh Kumar Gupta 2006(4) R.C.R.(Criminal) 974, held that if 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 and the offence if at all falls under the Drugs and Cosmetics Rules, 1945 and not under the Narcotics Drugs and Psychotropic Substances Act, 1985. The ratio of the judgment rendered in the said case is applicable to the facts of the present case. Accordingly, the petitioner is directed to be released on bail to the satisfaction of Duty Magistrate/Trial Court, Mansa. The petition is allowed as above. (NIRMALJIT KAUR) 13.05.2010 JUDGE gurpreet