Crl. Rev. No.2099 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No. 2099 of 2008 Date of Decision: March 31, 2010 Rajiv Kumar @ Sukha …..Petitioner Vs. State of Punjab …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.S.S. Dass, Advocate for the petitioner. Mr.Raghubir Chaudhary, Sr. DAG, Haryana. -.- M.M.S. BEDI, J. (ORAL) This revision petition has been preferred against the order dated September 11, 2008 passed by Judge, Special Court, Ludhiana, framing charges against the petitioner upholding the order of framing of charges under Sections 21, 22, 23 and 25 of the NDPS Act and dismissing the application for amendment of the said charge, under Section 216 Cr.P.C. Crl. Rev. No.2099 of 2008 [2] Briefly stated the facts of the present case are that on November 2, 2007, on the basis of a secret information received at Police Station Samrala that petitioner, Jaskaran Singh, Jaspal Singh, Karnail Singh and Harbans Singh were carrying intoxicant Ephedrine powder from South India being manufactured by some factory and that they would supply the same to one Sonu of District Jalandhar who is permanently living in Canada. The said powder is sent to Canada without any permit and Sonu sells the same after preparing the pills of the same and supplied to the customers in the night club at Canada. If the Skoda car bearing No. PB-31- D-0042 belonging to Davinder Singh is intercepted on Ludhiana Chandigarh road then intoxicant powder could be recovered. The petitioner was allegedly apprehended while carrying a bag of powder weighing 25 kg in a car. As per Forensic Science Laboratory, the said powder was found to contain Ephedrine Hydrochloride ions. Report under Section 173 (2) Cr.P.C. presented in the Court under Sections 22, 23, 38,61/05 of the NDPS Act and petitioner was charged under Sections 21, 22, 23 and 25 of the NDPS Act. Charge was framed on April 8, 2008 by Judge Special Court under Sections 21, 22, 23 and 25 of the NDPS Act to which the petitioner pleaded not guilty and claimed trial. After framing of the charge, the petitioner moved an application for amendment of the charge but the same was dismissed vide impugned order. Learned counsel for the petitioner has contended that charge under Sections 21, 22 and 23 of the Act cannot be framed as the said sections pertain to Narcotic Drugs and Psychotropic Substances whereas the Crl. Rev. No.2099 of 2008 [3] case in hand is a case of recovery of controlled substance. It has further been argued that the question of quantity being commercial or non commercial quantity/ small quantity in context to the provisions of NDPS Act does not arise as the contraband in the present case is neither a Narcotic Drug nor Psychotropic Substance but the same is a controlled substance. I have heard counsel for the petitioner and carefully considered the offence, which is prima facie made out on the basis of the allegations in the FIR. Sections 21, 22 and 23 of the Act provide punishment for manufactured drugs or preparations or Psychotropic Substances or provide punishment for illegal import or export of Narcotic Drug or Psychotropic Substance. The short question which is required to be determined in the present case is whether the possession of Ephedrine Chloride would warrant punishment under Sections 21, 22 and 23 of the Act or it would attract the penal provisions of Sections 25 and 25-A of the Act. Sections 21, 22 and 23 of the Act read as follows:- “Section 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 licence 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,-- Crl. Rev. No.2099 of 2008 [4] (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extent to six months, or with fine which may extent 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 extent to ten years and with fine which may extent 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 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 licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter- Crl. Rev. No.2099 of 2008 [5] 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 extent to six months, or with fine which may extent 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 extent to ten years and with fine which may extent 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 23 Punishment for illegal import in to India, export from India or transhipment of narcotic drugs and psychotropic substances— Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or Crl. Rev. No.2099 of 2008 [6] authorisation issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable,— a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extent to six months, or with fine which may extent 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 extent to ten years and with fine which may extent 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. What is Narcotic Drugs and Psychotropic Act has been described in Section 2 of NDPS Act which is as under:- Crl. Rev. No.2099 of 2008 [7] “Section 2 (xiv) defines Narcotic drug as “(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs. Section 2 (vi) denies coca leaf as “coca leaf” means- (a) the leaf of the coca plant except a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed; (b) any mixture thereof with or without any neutral material. Section 2 (iii) defines cannabis (hemp) as “cannabis (hemp) means— (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom; Section 2 (xv) defines Opium as “opium” means- (a) the coagulated juice of the opium poppy; and Crl. Rev. No.2099 of 2008 [8] (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy. but does not include any preparation containing not more than 0.2 per cent of morphine. Section 2 (xviii) defines poppy straw as “poppy straw” means all part (expect the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom. Section 2 (xi) defines manufactures drug as “manufactured drug” means— (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug. Section 2 (xxiii) defines Psychotropic substance as “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. Crl. Rev. No.2099 of 2008 [9] Section 2 (v) defines Coca derivative as “coca derivative” means— (a) crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of cocaine; (b) ecgonine and all the derivatives of ecgonine from which it can be recovered; (c) cocaine, that is, methyl ester of benzoyl-ecgonine and its salts; and (d) all preparations containing more than 0.1 per cent of cocaine. Section 2 (xii) defines medicinal cannabis as “medicinal cannabis”, that is medicinal hemp, means any extract or tincture of cannabis (hemp). Section 2 (xvi) defines Opium derivative as “opium derivative” means— (a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; Crl. Rev. No.2099 of 2008 [10] (b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine.” Section 2 (xix) defines Poppy Straw concentrate as “poppy straw concentrate" means the material arising when poppy straw has entered into a process for the concentration of its alkaloids.” A perusal of the report of Forensic Science Laboratory prepared on the basis of the analysis of the sample of the contraband recovered from the petitioner indicates that the chemical analysis of the contents of the parcel established that the same contained Ephedrine Hydrochloride. Whether Ephedrine Hydrochloride can be treated as a Narcotic Drug or Psychotropic Substance would constitute the basis for framing charge against the petitioner. The Special Judge vide impugned order has observed that Ephedrine Hydrochloride is a corresponding salt of Crl. Rev. No.2099 of 2008 [11] Ephedrine it means that it itself, is a Narcotic Drug and not a controlled substance, as such the charged under Sections 21, 22, 23 and 25 of the Act have been properly framed vide order dated April 8, 2008. In order to determine under what prohibitive provision Ephedrine has been placed by the Legislature, I have carefully perused various relevant provisions mentioned hereinabove alongwith notification dated December 28, 1999 wherein ephedrine and pseudoephedrine and their sales have been declared as ‘controlled substances’. Section 2 (viiid) of the Act has been defined a ‘controlled substance’ Relevant extract of notification No.S.O.1296(E), dated December 28, 1999 reads as follows:- “Whereas, the Central Government, having regard to the available information about the use of ephedrine and pseudoephedrine in the manufacture of certain amphetamines and metamphatamine decided to declare the same as controlled substances. 2. Now, therefore, the Central Government in exercise of the powers conferred under clause (viiia) of Section 2 of the Narcotic Drug and Psychotropic Substances Act, 1985 (61 of 1985), hereby declares Ephedrine and Pseudoephedrine and their salts as controlled substances for the purpose of the said clause.” Copy of the list of chemicals and salts which were brought under the category of “NOC for import” required from CBN is as follows:- Crl. Rev. No.2099 of 2008 [12] S. N o. Substance Whether declared controlled substance under NDPS Act, if so Gazette Notification NO. and date. Whether DGFT Notification regarding NOC from CBN has been issued, if so no. and dates of public notice. Whether NOC for import required from CBN 1. Acetic Anhydride Controlled Notification No. S.O.198(E) dated 24.3.1993 Yes, 79 Exp (PN) 92-97, dated 2.1.96 Yes 2. Ephedrine Controlled Notification No. S.O.1296(E) dated 28.12.1999 Yes, 79 Exp (PN) 92-97,dated 2.1.96 and 21 (RE-2000)/ 1997- 2002 dated 17.7.2000 Yes 3. Pseudoephe- drine Controlled Notification No. S.O.1296(E) dated 28.12.1999 Yes, 79 Exp (PN) 92-97,dated 2.1.96 and 21 (RE-2000)/ 1997-2002 dated 17.7.2000 Yes 4. 3,4 Methylene Dioxypheyl- 2- Propanone (3,4 MD-2-P) No. Yes, 35 (RE) 1997-2002 dated 1.9.98 (NOC for Export only) No Crl. Rev. No.2099 of 2008 [13] 5. Methyl Ethyl Keton No. Yes, 35 (RE) 1997-2002 dated 1.9.98 (NOC for Export only) No 6. 1-Phenyl-2- Propanone No. Yes, 35 (RE) 1997-2002 dated 1.9.98 (NOC for Export only) No 7. Potassium Permanganate No. Yes, 35 (RE) 1997-2002 dated 1.9.98 (NOC for Export only) No 8. N-Acetyl Anthranilic Acid Controlled Notification No. S.O.763(E) dated 24.10.1994 No DGFT Notification for export/ import control No 9. Anthranilic Acid Controlled Notification No. S.O.239 (E) dated 26.2.2003 Yes, 23 (RE) 2003/ 2002-2007 dated 31.3.03 (NOC for export only) No. 10. Heliotropin (Piperonol) No Under NOC from NC Office Yes 11. Methyl Ergometrine Maleate No Under NOC from NC Office Yes Crl. Rev. No.2099 of 2008 [14] 12. Ergometrine Maleate No Under NOC from NC Office Yes 13. Ergotamine Tartrate No Under NOC from NC Office Yes Ephedrine finds mention at Sr.No.2 in the abovesaid list. The definition of controlled substance as per Section 2 (viiid) of NDPS Act reads as follows:- “Controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the pro- visions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance.” In order to control and regulate controlled substance, the legislature in its wisdom has incorporated Section 9 (a) of the Act which reads as follows:- “Section 9-A.Power to control and regulate controlled substances (1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by Crl. Rev. No.2099 of 2008 [15] order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generality of the power conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition of any controlled substance." The punishment for violation of Section 9A of the Act has been prescribed in Section 25A of the NDPS Act which reads as follows:- “25A. Punishment for contravention of orders made under section 9-A. If any person contravenes an order made under section 9A. he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees.” In order to find out whether the ephedrine hydrochloride powder which has been recovered from the petitioner is a Narcotic Drug or Psychotropic Substance, reference can again be made to the definition of Crl. Rev. No.2099 of 2008 [16] Section 2 (xiv) which defines Narcotic Drug as coca leaf, cannabis (hemp), opium, poppy straw and all the manufactured drugs. Manufactured drugs have been defined in Section 2 (xi) of the NDPS Act. The Central Government in exercise of powers conferred under Section 2 (xi)(b) of the Act has issued certain notifications dated November 14, 1985 and January 29, 1993 declaring certain substances and preparations to be “manufactured drugs” which are included in the definition of Narcotic Drugs. The State Government has not been able to satisfy this Court that Ephedrine Hydrochloride finds mention in the list of the manufactured drugs which could fall under Narcotic Drug. The Psychotropic Substances have been defined in Section 2 (xxiii). The salt Ephedrine Hydrochloride does not fall under the definition of Psychotropic Substance, as it is not a sale or a substance or a preparation of such substance or material which is included in the list of Narcotic Psychotropic Substances specified in the schedule. From the analysis of the definition of ‘Narcotic Drugs’ or ‘Psychotropic Substance’, manufactured drugs and controlled substances as mentioned hereinabove, the substance recovered from the petitioner as per the report of Forensic Science Laboratory (Ephedrine Hydrochloride) is notified as controlled substance, as by notification under Section 2 (viiid) it can be used in production or manufacturing of Narcotic Drug or Psychotropic Substance and taking into consideration its use for production and manufacture of Narcotic Drug or Psychotropic Substance, has been ordered to be regulated, controlled and prohibited for production, manufacture, supply and distribution. The said Crl. Rev. No.2099 of 2008 [17] controlled substance for the purpose of production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition is regulated by licence and permit and by notification of public notices, it falls in the category of substances for which no objection certificate for import is required from Central Bureau of Narcotics (CBN). Ephedrine Hydrochloride being a controlled substance and any violation of any order made under Section 9A of the Act punishment can be awarded under Section 25-A of the Act which may extent to 10 years and is also liable to fine which may extent to Rs.l lac. It is also not out of place to mention here that in cases of controlled substance like Ephedrine, the legislature has not till date made any categorization for the purpose of commercial quantity or small quantity as has been done in Narcotic Drug and Psychotropic Substance in the amendment of the Act I of 2001. As per the contents of the FIR which was registered on the basis of secret information, the petitioner alongwith other persons indulged in brining Ephedrine powder from South India manufactured by some Company and then to supply the same to one Sonu of District Jalandhar who is a permanent resident of Canada who arranges the said powder to send to Canada without any permit and supplies the same to customers in night clubs at Canada. The petitioner on interception at Ludhiana- Chandigarh road was found carrying a bag of powder of Ephedrine weighing 25 kg, as such prima facie, in view of the discussion Crl. Rev. No.2099 of 2008 [18] above, he deserves to be charged for offence under Sections 25 and 25A of the NDPS Act. This petition is allowed. The impugned order dated September 11, 2008 dismissing the application under Section 216 Cr.P.C. refusing to reframe the charges is hereby set aside and a direction is issued to the trial Court/ Special Judge to reframe the charges against the petitioner under Sections 25 and 25A of the NDPS Act on April 7, 2010 or any other day fixed for the said purpose by the said Court. If any other offence prima facie is made out, may be added. March 31, 2010 (M.M.S.BEDI) sanjay JUDGE