Ramesh Sinha; Narendra Kumar Johari, JJ.
Narcotic Drugs & Psychotropic Substance Act, 1985 – Section 42 – Narcotic Control Bureau have jurisdiction to search and seize the syrups having codeine.
Narcotic Drugs & Psychotropic Substance Act, 1985 – Section 67 – Power to call for information – Notice u/s. 67 is merely for enquiry / interrogation – a writ petition against such a kind of notice should not ordinarily be entertained.
J U D G M E N T
Ramesh Sinha, J.
Writ Petition (Misc. Bench) No.11190 of 2021 has been filed by the petitioner, Hemant Kumar Saini, one of the partners of the Firm M/s Preksha Trading Company, with the following main reliefs :-
(i) Issue a writ, order or direction in the nature of Certiorari for quashment of the notice/summon issued under section 67 of Narcotic Drugs & Psychotropic Substances Act, 1985 dated 13.05.2021 by the Narcotics Control Bureau Lucknow relating crime no.16/2021 registered at Police Station – Kotwali District – Varanasi on 05.04.2021 under section 8/21/29 of N.D.P.S. Act and similarly subsequent summon if any issued by investigating officer/opposite party no.3 contained as Annexure No.1 alongwith the present Writ Petition.
(ii) Issue a writ order or direction in the nature of Mandamus Commanding and directing the opposite parties particularly opposite party no.2 to 4 not to arrest and harass the petitioner in pursuance of the impugned notice/summon issued under section 67 of NDPS Act dated 13.05.2021 by the N.C.B. Lucknow relating crime no.16/2021 registered at Police Station – Kotwali, District – Varanasi on 05.04.2021 under section 8/21/29 of N.D.P.S. Act during the pendency of the present writ petition, in the interest of justice.”
After amendment in the prayer clause (Crl. Misc. Application No.76529/2021), following prayer has been added by learned counsel for the petitioner :-
“(v) It is also prayed that this Hon’ble Court may kindly be pleased to issue a writ in the nature of certiorari for quashing of FIR as recorded under section 42 of NDPS Act and entire investigation which is being carried in pursuance thereof conducted by the investigating officer of the department of Narcotics Control Bureau, Lucknow, in the interest of Justice.”
Almost on the same grounds, another Writ Petition (Misc. Bench) No.11396 of 2021 has been filed by petitioner Yogita Nand Yadav, the another partner of the Firm M/s Preksha Trading Company, with the following main reliefs :-
(i) Issue a writ, order or direction in the nature of Certiorari to quash the investigation of NCB case crime no.16/2021 under section 8/21/29 of NDPS Act registered on 03.04.2021 in the office of Narcotics Control Bureau, Lucknow under section 42 of NDPS Act through Form NCB-1 and notice/summons issued under section 67 of Narcotics Drugs & Psychotropic Substances Act, 1985 dated 13.05.2021 by the Narcotics Control Bureau, Lucknow and subsequent recovery effected on 05.04.2021 at Varanasi and similarly subsequent summon if any issued by investigating officer/opposite party no.3 so far as against the petitioner is concern contained as Annexure No.1 along with the present Writ Petition.
(ii) It is further prayed that the petitioner is ready to appear again before investigating officer as already appeared on 12.04.2021 and this Hon’ble Court may kindly be pleased to direct the investigating officer to not arrest the petitioner after recording his statement if any and the investigating officer first consider about the question of jurisdiction for making search, seizure and investigation in the interest of justice.
(iii) Issue a writ order or direction in the nature of Mandamus Commanding and directing the opposite parties particularly opposite party no.2 to 4 not to arrest and harass the petitioner in pursuance of the impugned notice/summon issued under section 67 of NDPS Act dated 13.05.2021 by the N.C.B. Lucknow relating crime no.16/2021 registered at Police Station – Kotwali, District – Varanasi on 05.04.2021 under section 8/21/29 of N.D.P.S. Act during the pendency of the present writ petition, in the interest of justice.
Since both the writ petitions have been filed by the petitioners on almost similar facts and grounds, therefore, both the writ petitions have been heard together and are being decided with a common judgment.
The brief facts which have emerged from the case of prosecution need to be noted at the very outset.
A specific information provided to Narcotics Control Bureau authority by an informer that huge quantity of codiene based syrup have illegally been stored in the shop/godown No.09 and Shop No.31 of Gyan Mondal Plaza @ Imam Mondal Plaza @ Aaj Press Building, Sant Kabir Marg near Maidagin Chauraha, Police Station Kotwali, Varanasi, by one Sunil Jaiswal. The information was reduced in writing by the authorities of the Narcotics Control Bureau (hereinafter referred to as “the N.C.B.”) in NCB-I format and submitted to superior officer, i.e. Superintendent, N.C.B., Lucknow on 03.04.2021.
A team was constituted consisting of Shri Raj Kumar Shaw, Intelligence Officer, Shri Kumar, Sepoy and Shri Manjeet, Driver, for further action as per provisions of Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as “the N.D.P.S. Act,1985). The aforesaid team reached Varanasi along with necessary articles and meet the S.H.O., Kotwali Varanasi and shared the information to procure police party. The information was also communicated to Drug Inspector, Varanasi. The N.C.B. team along with police personnel and Drug Inspector, Varanasi reached at the suspected shops on 05.04.2021. The shops in question, i.e. Shop Nos. 09 and 31 were found locked. The team tried to contact to Sunil Jaiswal but after repeated calls and long waiting, said Sunil Jaiswal did not appear before the team to open the shops. The team inquired about Sunil Kumar Jaiswal through his brother’s shop also but Sunil Jaiswal could not be contacted. Then the team arranged a local key maker, Abhishek Jaiswal, who opened the lock of both the premises in presence of independent witnesses. The Shop No.09 was found fully packed with medicines.
The following medicines (Codeine based syrups) were recovered from Shop No.09 :- Serial No. Name of Medicine Quantity 1. Onerex Cs 30240 Bottles 2. Onerex Cs 42600 Bottles 3. Welcyre 4200 Bottles 4. Plencyre 6480 Bottles 5. CC Kuffs + 24624 Bottles 6. CC-Kuffs + 3888 Bottles Total 112032 Bottles From Shop No.31, following drugs were recovered :- Serial No. Name of Drug Quantity 1. Onerex CC cough syrup 2520 Bottles 2. Welcyrex 720 Bottles Total 3240 Bottles Certain documents, like registration certificate, copies of bank pass-book, PAN Card, AADHAR Card, GST Certificate, appointment receipt of passport and ITR were also recovered from the Shop No.31.
The Drug Inspector took four bottles of each batch of Codeine based syrup as sample, rest of the recovered medicines were seized and sealed by the N.C.B. Brass seal. After completion of search and seizure of both the shops in presence of independent witnesses and joint team of N.C.B., Police and Drug Inspector, search-cum-seizure memo was prepared on the spot. All the legal formalities were completed by the team without causing any damage to any person or property. Both the shops were locked by the new locks purchased by the N.C.B. team.
Learned counsel for the petitioners submitted that petitioners are running a medical shop for sale and purchase of medicines under the valid license granted by the competent authority under partnership with other person, namely, Sunil Kumar Jaiswal under the name and style of M/s New Preksha Trading Company, having its godown in House No.62/16, Saptsagar, Medicine Market, Maidagin, Post Visheswarganj, Police Station – Kotwali, District Varanasi. The licence was effective from 19.07.2018 for sale, purchase and stocking of medicines. The petitioners have no criminal history in their credit and they are ready to co-operate with the investigation, but well established apprehension is that whenever they will appear before the Investigating Officer, without fair and proper investigation, by making pressure and threat, just to get undue advantage being in custody, the petitioners may be arrested and send to jail. The authorities of N.C.B. have no jurisdiction to make search and seizure and also to issue notice under Section 67 of N.D.P.S. Act, 1985.
Learned counsel for the petitioners further submitted that on the basis of seizure memo dated 05.04.2021, the N.C.B. officials registered a case vide Crime No.16/2021, on 05.04.2021, under Section 8/21/29 of N.D.P.S. Act,1985, against the accused Sunil Kumar Jaiswal. The authorities of N.C.B. also issued notice to petitioners under Section 67 of N.D.P.S. Act,1985, which is without jurisdiction and against the mandates of N.D.P.S. Act, 1985 as well as Drugs and Cosmetics Act, 1940. The officers of N.C.B. broken the locks and seized the shop illegally and without any jurisdiction. The medicines were kept in godown under the valid licence granted by the concerned authorities. The cough syrup Onerex, CC cough syrup, Welcyrex, Plencyrex cough syrup, Plencyrex and RC-KUFFS (Plus) are medicines of schedule H (1) of the Drugs & Cosmetics Act with the leveling of Rx. The cough syrups were purchased by the Wind Biotech [manufactured Onerex and RC-KUFFS (Plus)] and so far as Welcyrex and Plencyrex are concerned, the same were manufactured by the Similax Health Care Pvt. Ltd., Baddi, Himanchal Pradesh. Both firms are reputed and having valid license for manufacturing medicines. The said cough syrups were purchased from the firms which are registered, namely, Sri Radha Medical Agency and M/s A.R. Pharma and S.K. Drug Agency, situated at Varanasi. All the three firms are also running under the valid licence granted by the Drugs and Cosmetics Authority. The partnership firm of petitioners M/s Preksha Ayurvedics is having valid licence to carry the business of sale and purchase. If the entire prosecution story is taken as it is, even the provisions of N.D.P.S. Act, 1985 are not attracted at all. It may be the case of petitioners falling under the provisions of Drugs and Cosmetics Act, 1940. The petitioners have been sent a notice which is cryptic in nature and on the printed proforma without recording any ground of enquiry or fact which is necessitated to send in the name of petitioners.
It has further been submitted by learned counsel that the petitioners have been granted licence for carrying out the medical store business for sale, stock, exhibit for sale or distribute by whole sale drugs specified in Schedule C and C (1) of the Schedule of Drugs and Cosmetics Act, 1940.
Learned counsel for the petitioners has further submitted that the co-accused (one of the partners, namely, Sunil Jaiswal) was arrested when he appeared to record statement and to cooperate in the investigation and inquiry, on 15.05.2021, which is illegal. The petitioners also apprehend that they may be arrested by Investigating Officer on his appearance. No illegal act has been done by the petitioners because the alleged codeine syrup is medicine of Schedule ‘H’, for which they have been granted license for its stock, sale, purchase, etc.
Learned counsel for petitioners submitted that the cases of petitioners are squarely covered by the judgment of this Court passed in the case of Ashok Kumar through (Brother) Rakesh Kumar Pawar Vs. Union of India, under Section 482 Cr.P.C. No.2976 of 2014, decided on 15.10.2014, as well as Writ Petition No.8953 of 2013 (MB) Ram Dayal Mathur Vs. Union of India, in which the Court has quashed the notice under Section 67 of N.D.P.S. Act, 1985.
Learned counsel for the petitioners has further submitted that notification issued on 26.10.2005, by the Directorate General of Health Service and again issued in March, 2009, by which it has been clarified by the highest authority under the Drug and Cosmetics Act, 1940 that number of cough syrup preparations contained codeine only by virtue of the fact that these preparation contains codeine and its salts, did not fall under the provisions of N.D.P.S. Act, 1985 and Narcotic Drugs and Psychotropic Substances Rules, 1985. They fall under Schedule ‘H’ of the Drugs and Cosmetics Rules, 1945 and such drugs are governed by the said rules. The recovered cough syrup contains less than the permitted quantity of codeine per does unit and it will not fall within the definition of Section 2 (xi) (b) of the N.D.P.S. Act, 1985. The present case is covered by the Rules of Drugs and Cosmetics Act, 1940. Learned counsel for the petitioners further submitted that the provisions of Drugs and Cosmetics Act, 1940 provides punishment for the defined offences and only complaint can be filed against the wrong doer under the Drugs and Cosmetics Act, 1940 by the authorities authorized under the Drugs and Cosmetics Act, 1940, not by the authorities under the provisions of N.D.P.S. Act, 1985. The alleged cough syrup have been purchased by the petitioner firm through proper receipts. The alleged cough syrup is a schedule ‘H’ drug which includes “Codeine” as one of the ingredients which is required for the therapeutic purposes. The “Codeine” contained in the recovered syrup is within the prescribed limit and percentage and the same has been purchased by the firm authorized legally for sale and supply of the medicines by the petitioner. The petitioner has already submitted his reply to the notice issued under Section 67 of the N.D.P.S. Act,1985 through registered post. The provisions of N.D.P.S. Act,1985 itself speaks that the N.D.P.S. Act,1985 would not be applicable if the drug in question has been stored for sale and purchase for medical and scientific purposes, and according to the terms and conditions of the licence granted under the Drugs and Cosmetics Act, 1940. In the present case, petitioners are running the medical shop business under the licence granted by the authority authorized under the Drugs and Cosmetics Act, 1940 for medical purposes, therefore, the provisions of N.D.P.S. Act,1985 would not be applicable at all.
Per contra, the learned counsel for the Narcotics Control Bureau has submitted that on a reliable information the team of N.C.B. searched and seized the codeine based cough syrup and prepared its search and seizure memo dated 05.04.2021, which is in accordance with law. The investigation of the offence is continuing. It has been mentioned in the petition that the Firm of petitioners had purchased the codeine based cough syrup by M/s A.R. Pharma, Varanasi through proper bills but during the course of investigation, when N.C.B. team along with Drug Inspector, Varanasi visited the premises of M/s A.R. Pharma on 04.06.2021, it has been found that the said firm did not exist on the ground. On that premises a Chamber of one Advocate was found. The said observations were noted by the Drug Inspector, Varanasi for their own inquiry too. Since the firm M/s A.R. Pharma does not exist on the ground, thus, all codeine phosphate cough syrup bottles claimed to be supplied by the firm M/s A.R. Pharma are illegal.
Learned counsel for N.C.B. further submitted that on further enquiry, the concerned courier company SPOTON LOGISTICS PVT. LTD. VARANASI, has supplied the information that the consignment of medicines never reached at the premises on M/s A.R. Pharma. It was not received by the owner of the M/s A.R. Pharma. The said consignment was directly delivered to one Deepak, at Shop No.09, Second Floor, Gyanmandal Plaza, SaptaSagar, Varanasi. This premises belongs to New Preksha Trading Company. Thus the firm M/s A.R. Pharma illicitly diverted the said consignment from transport courier agency to New Preksha Trading, without proper receiving, stock taking and checking the physical veracity of the said consignment. Thus, a physically non-existing company is getting deliveries of Codeine based cough syrup bottles and directly diverting it to new wholesaler without proper receiving, stock taking and without checking physical veracity of consignment. It is clear illegal act of diversion of codeine containing cough syrup bottles done by M/s A.R. Pharma and New Preksha Trading Company. The receipt and further sale of all codeine phosphate consignments of M/s A.R. Pharma are under investigation. In his statement under Section 67 of NDPS Act, 1985 the proprietor of M/s A.R. Pharma failed to provide all sale, purchase documents of codeine based cough syrup which is supplied to New Preksha Trading Company and Preksha Ayurvedics.
He also admitted that he has illegally diverted the consignment of codeine based cough syrup directly to his customers without checking the veracity of consignment. The codeine based cough syrups were sold for other purposes than the therapeutic purposes.
Learned counsel for the Narcotics Control Bureau has further submitted that during course of investigation the team of Narcotics Control Bureau along with Drug Inspector, Varanasi also visited to the given address of M/s S.K. Drug Agency on 04.06.2021. The said firm also did not exist on the ground. On that premises, one cosmetic/bridal make up shop is being run. Since the said firm does not physically exist on ground, thus, all codeine phosphate cough syrup bottles claimed to be supplied by it to New Preksha Trading Company and Prechcha Ayurvedic are illegal.
Learned counsel further contended that no licence has been issued in the name of the present petitioners. The licence issued by the competent authority is for the therapeutic and medical use only and not for the use of intoxication or for getting a stimulant effect.
Possession, sale and purchase of codeine based cough syrup for non therapeutic and non medical usage is illegal and hence provisions of N.D.P.S. Act,1985 shall be attracted. The petitioner Hemant Kumar Saini till now has not appeared before the Investigating Officer and has not shown or submitted any document to Investigating Officer in support of his claim and petitioner Yogita Nand Yadav is avoiding to appear after once appearing before enquiry officer and after assurance to appear again, despite repeated summons and is not co-operating with the on going investigation. The investigation of the case is going on and the Investigating Officer is still in the process of collecting the criminal case history, if any, against the petitioners.
Learned counsel has further argued that the Narcotics Control Bureau has bonafide jurisdiction of search, seizure, inquiry and investigation under the provisions of N.D.P.S. Act, 1985 which is a special Act enacted by the Parliament with the objective to control and regulate the illicit trafficking relating to Narcotic Drug and Psychotropic Substance. The Drug and Cosmetics Act, 1940 deals with drugs which are intended to be used for therapeutic or medical usage, on the other hand, the N.D.P.S. Act, 1985 intend to curb and penalize the usage of drugs which are used for intoxication or for getting a stimulant effect. Any diversion and illegal sale, purchase, possession of drugs intended for therapeutic or medical usage must attract provisions of N.D.P.S. Act, 1985. Under the provisions of Section 67 of N.D.P.S. Act,1985 the authorized officers may call for information from any person to satisfy himself whether there has been any contravention of the provision of the N.D.P.S. Act, 1985. The investigation of the case is being conducted with fair and proper manner and and with clean hands. The provisions of Section 80 of N.D.P.S. Act, 1985 and Section 2 of Drugs and Cosmetics Act give power to proceed and investigate the case under the N.D.P.S. Act,1985 also. Thus, the provisions of N.D.P.S. Act,1985 can be applied along with the provisions of Drugs and Cosmetics Act, 1940.
Learned counsel has further submitted that N.C.B. Case No.16 of 2021, under Section 8/21/29 of N.D.P.S. Act,1985 has not been registered in Police Station Kotwali, District Varanasi, as mentioned by the petitioners. The police team had joined N.C.B. raiding team during course of search for assistance only. The N.C.B. has jurisdiction and power under the provisions of N.D.P.S. Act, 1985 to make search and seizure, investigate and during enquiry may call for information from any person to satisfy whether there has been any contravention of provisions of N.D.P.S. Act, 1985. The petitioners are not co-operating in the investigation. Summons under Section 67 of N.D.P.S. Act, 1985 had been issued on 07.04.2021, 20.04.2021, 13.05.2021 and on 02.06.2021 to provide opportunity to the petitioners to show their claim over seized items. On each occasion, petitioners deliberately avoided investigation. The petitioners should disclose all the sale and purchase record which has yet not been disclosed by them as they are not co-operating in the investigation and enquiry. The petitioners have not come with clean hands before the Court.
Learned counsel has also submitted that the GST return filing statement was checked and it was found that the said Firm had filed last GST return on 23.04.2021 but the petitioners and partner have not shown full record of corresponding sale and purchase shown by the Firm, particularly, regarding the recovered 1,15,244 bottles of codeine based cough syrup seized under seizure memo dated 05.04.2021.
Learned counsel has further mentioned that one of the partner of Firm Preksha Ayurvedic Mr. Yogitanand Yadav [the petitioner in Writ Petition No.11396 (MB) of 2021] appeared before the N.C.B. team under the compliance of Section 67 of NDPS Act, 1985 on 12.04.2021 but N.C.B. officials did not arrest him, although further he did not appear before the Investigating Officer. Hence, it is wrong to say that petitioners have every apprehension that when they will appear before the Investigating Officer, in compliance of notice issued against him under Section 67 of N.D.P.S. Act,1985 they will be arrested.
Learned counsel has further submitted that the judgment passed by this Court in Ashok Kumar Vs. Union of India, Crl. Misc. Case No.2976 of 2014 is under challenge in Hon’ble Apex Court in Criminal Appeal No. 000115/2018 (Union of India Vs. Ashok Kumar) which is pending before the Hon’ble Supreme Court and the judgment is awaited.
Learned counsel has further submitted that the writ petitions filed by the petitioners are misconceived and against the provisions of law. Mere notice under Section 67 of N.D.P.S. Act, 1985, cannot be challenged under writ jurisdiction of the Court, as this is the process of investigation, hence the present writ petitions are liable to be dismissed.
We have heard arguments advanced by learned counsel for the petitioners, Shri A.P. Mishra, and Shri Akhilesh Awasthi, learned counsel for Narcotics Control Bureau and perused the material brought on record.
Learned counsel for the petitioners has argued that in the present case the provisions of N.D.P.S. Act, 1985 are not attracted, rather this may be a case falling under the Drugs and Cosmetics Act, 1940.
So far as the applicability of the Drugs and Cosmetics Act, 1940 is concerned, this Act has been enacted by the Parliament to regulate the import, manufacture, distribution and sales of drugs and cosmetic, whereas the N.D.P.S. Act, 1985 has been enacted with a view to make stringent provision for the control and regulation of operations relating to Narcotic drugs and psychotropic substances. In this context, it has been held by Hon’ble Supreme Court in the case of State of Punjab Vs. Rakesh Kumar, (2019) 2 SCC 466 in paragraph 7 that : –
“7. At the outset it is essential to note the objectives of the two legislations before us i.e. the Drugs and Cosmetics Act, 1940 and the NDPS Act. The Drugs and Cosmetics Act, 1940 was enacted to specifically prevent substandard drugs and to maintain high standards of medical treatment. (Chimanlal Jagjivan Das Sheth v. State of Maharashtra, AIR 1963 SC 665) : (1963) 1 Cri LJ 621). The Drugs and Cosmetics Act,1940 was mainly intended to curtail the menace of adulteration of drugs and also of production, manufacture, distribution and sale of spurious and substandard drugs. On the other hand, the NDPS Act is a special law enacted by the Parliament with an object to control and regulate the operations relating to narcotic drugs and psychotropic substances.
After analyzing the objectives of both the Acts, we can safely conclude that while the Drugs and Cosmetics Act deals with drugs which are intended to be used for therapeutic or medicinal usage, on the other hand, the NDPS Act intends to curb and penalize the usage of drugs which are used for intoxication or for getting a stimulant effect.”
Subject matter of the case is the recovery of medicines in the form of syrup, namely, Onerex Cs, Welcyre, Plencyre and CC KUFFs, which contain codeine as one of its ingredients. The Codeine is derived from opium and comes under the provisions of N.D.P.S. Act, 1985.
For its operations, Section 2 of N.D.P.S. Act, 1985 essentially provides for three kinds of offending substance, i.e. “Manufactured Drug”, “Narcotic Drug” and “Psychotropic Substance”.
“2(xi) “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 to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;”
2(xiv) “Narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods.
2(xxiii) “Psychotropic Substance” means :- “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.”
Reference also needs to be made to Section 2(xvi)(c), which defines ‘Opium Derivative’, which reads as under :- 2 (xvi) :
“Opium derivative” means- (a)…………………………………………….
(b)…………………………………………….
(c) “Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts” (d)…………………………………………… (e)…………………………………………………
From the above wording of definitions, it is apparent that medicine syrup which contains codeine as its ingredient, that codeine is an opium derivative and opium comes under the definition of Narcotic Drug. In this regard Section 8 of N.D.P.S. Act, 1985 make provision and certain restrictions, which reads as under :-
“8. Prohibition of certain operations.-No person shall-
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship 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 this 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 authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.”
Learned counsel for the Narcotic Control Bureau has vehemently argued that from the shop/godown of petitioners manufactured drug has been seized in bulk which was kept there without any valid authorization, which amounts to clear violation of Section 8 of N.D.P.S. Act, 1985. Section 8 of NDPS Act, 1985, clearly prohibits possession of narcotic substance, except for medical or scientific purposes and that too, in accordance with relevant provisions of law. In support of his contention learned counsel for the Narcotic Control Bureau has placed reliance in the dictum of Hon’ble Supreme Court in the case of Union of India Vs. Sanjeev V. Despande, MANU/SC/0688/2014. The Hon’ble Supreme Court has held as under :-
“25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9[9] and 10[10] enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.”
In case in hand, the proceedings against the petitioners are at the stage of enquiry/investigation. It has to be ascertained by the Investigating Officer that whether the Rules of 1945 (Drugs and Cosmetics Rules, 1945) has been followed by the petitioners/firm or not. It is also in embryo that the recovered medicines which were kept by petitioners’ firm in his shop/godown, are for the purpose of medicines and therapeutic use or not and whether they followed the provisions of Drugs and Cosmetics Act, 1940 and Rules of 1945 and in the transaction of drugs the proper accounts and records are being maintained or not, as it is mandatory by the provisions Section 18-B of Drugs and Cosmetics Act, 1940, which reads as under :-
“[18-B. Maintenance of records and furnishing of information. Every person holding a license under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this Act such information as is required by such officer or authority for carrying out the purposes of this Act.]”
The provisions of Rule 65 of Rules of 1945 makes provisions regarding conditions of licence. Learned counsel for the N.C.B. has argued that during the search no register, record/entries were found which may validate the stock.
Therefore, whether the petitioners-firm is holding a valid licence or not and whether conditions for licence are being followed by the petitioners-firm or not; whether the necessary records are being maintained by the petitioners-firm or not, all these points are the subject matter of enquiry/investigation, which is continuing.
Therefore, any conclusion, in this regard can be drawn only after finalization of inquiry/investigation.
In the present facts of the case according to provision of Section 80 of N.D.P.S. Act, 1985 and Section 2 of Drugs and Cosmetics Act, 1940, the proceedings can be initiated and inquiry can be made under the provisions of N.D.P.S. Act, 1985 as well as under the Drugs and Cosmetics Act, 1940. Section 80 of N.D.P.S. Act, 1985, reads as under :-
“80. Application of the Drugs and Cosmetics Act, 1940 not barred.-The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.”
Section 2 of Drugs and Cosmetics Act, 1940, makes following provision :-
“2.Application of other laws not barred.- The provisions of this Act shall be in addition to and not in derogation of, the Dangerous Drugs Act, 1930 (2 of 1930), and any other law for the time being in force.
The above provisions clearly indicates that provisions of Drugs and Cosmetics Act, 1940 and Rules of 1945 have co-relation with the provisions of N.D.P.S. Act, 1985 and Rules. They cannot stand in isolation. Therefore, at this stage of proceedings, it cannot be said that the case of petitioners is covered by the provisions of Drugs and Cosmetics Act, 1940 only and action taken by prosecution (N.C.B.) under the provisions of N.D.P.S. Act, 1985 is illegal and without jurisdiction.
Learned counsel for the petitioners has argued also on the point that the recovered syrups fall under Schedule ‘H’ and H1 of the Drugs and Cosmetics Rules, 1945, hence in the case the provisions of the Drugs and Cosmetics Act, 1940 are applicable.
In this regard, whether the provisions of the Drugs and Cosmetics Act, 1940 as well as provisions of Rule 97 (c), (d), (e) and (f) of 1945 Rules, are being followed or not, this is also the matter of enquiry/investigation. Rule 97 (c), (d), (e) and (f) of Rules of 1945 reads as under :-
“97. Labelling of medicines.- (1) The container of a medicine for internal use shall-
(a)………………………………………………………………………
(b) if it contains a drug substance specified in Schedule H, be labeled with the symbol Rx and conspicuously displayed on the left top corner of the label and be also labeled with the following words in legible black coloured font size in completely red rectangular box:
SCHEDULE H PRESCRIPTION DRUG-CAUTION
Not to be sold by retail without the prescription of a Registered Medical Practitioner.
(c) if it contains a substance specified in Schedule H and comes within the purview of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) be labeled with the symbol NRx, which shall be in red and conspicuously displayed on the left top corner of the label, and be also labeled with the following words in legible black coloured font size in completely red rectangular box :
SCHEDULE H PRESCRIPTION DRUG-WARNING
To be sold by retail on the prescription of a Registered Medical Practitioner only.
(d)…………………………………………………………………
(e) if it contains a drug substance specified in Schedule H1, be labeled with symbol Rx, which shall be in red conspicuously displayed on the left top corner of the label and shall also be labeled with the following words in legible black coloured font size in completely red rectangular box :
SCHEDULE H1 PRESCRIPTION DRUG – CAUTION -It is dangerous to take this preparation except in accordance with the medical advice.
– Not to be sold by retail without the prescription of a Registered Medical Practitioner (f) if it contains a drug substance specified in Schedule H1 and comes within the purview of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) be labeled with symbol NRx, which shall be in red and conspicuously displayed on the left top corner of the label and shall also be labeled with the following words in legible black coloured font size in completely red rectangular box :
SCHEDULE H1 PRESCRIPTION DRUG-CAUTION -It is dangerous to take this preparation except in accordance with the medical advice.
-Not to be sold by retain without the prescription of a Registered Medical Practitioner.
Hence whether the provisions of above Rule 97 along with other relevant provisions of Act of 1940 are being followed in the case or not is also subject matter of enquiry/investigation as there is nothing on record at this stage which may prove it.
Learned counsel for the petitioners has further submitted that the recovered syrup is a medicine which contains the quantity of codeine under permissible limit and vide notification of Central Government dated 14.11.1985 the medicine has been prepared by the manufacturer for therapeutic purposes, for the above point of argument, learned counsel for the petitioners placed reliance on paragraph 46 of the case law of Ashok Kumar Vs. Union of India and others, decided by this Court on 15.10.2014, which reads as under :-
“46. Central Notification Dated 14.11.1985 and published in Gazette of India has been issued under Section 2 (xi) (b) of N.D.P.S. Act wherein “Manufactured Drugs” have been mentioned.
Relevant portion of notification, Annexure-5, issued under N.D.P.S. Act reads as under :
“S.O.526(E), dated 14th November, 1985.- In exercise of the powers conferred by sub-clause (b) of clause (xi) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declare the following narcotic substance and preparation to the (be) manufactured drugs, namely:
X X X X X X
(35) Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice.”
Learned counsel for the petitioners submits that the petitionersfirm is also entitled to get the benefit of above notification.
On the above point of argument, it is to be noted that as according to the definition mentioned in Section 2 (XIV) of N.D.P.S. Act,1985, opium has been kept under the definition of “Narcotic Drugs”. The Section 2 (xiv) reads as under :-
“2. Definitions.- In this Act, unless the context otherwise requires,-
(i)……………………………………………………………..
(ii)…………………………………………………………….
(iii)…………………………………………………………..
(iv)………………………………………………………….
(vi)…………………………………………………………
(vii)……………………………………………………….
(viii)………………………………………………………
(ix)…………………………………………………………
(x)…………………………………………………………….
(xi)……………………………………………………………..
(xii)……………………………………………………………..
(xiii)……………………………………………………………..
(xiv) “narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods.
‘Codeine’ is derivative of opium. What is the percentage/ratio of ‘codeine’ in the recovered and seized syrup, is not on record. The same has to be ascertained during the course of investigation/enquiry/ laboratory report, as it has been shown in search memo that the samples of recovered syrup has been taken by Drug Inspector for investigation, hence in the context of seized syrups no conclusion can be drawn taking into account the said notification dated 14.11.1985, at this stage.
Learned counsel for the petitioners has submitted that the search and seizure made by the team of Narcotic Control Bureau by breaking the lock of petitioners- firm was illegal and without jurisdiction.
In this regard, Section 42 of N.D.P.S. Act, 1985, reads as under :-
“42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act : Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector : Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”
In view of the provisions of Section 42 of N.D.P.S. Act, 1985, prima facie, it cannot be said that the team of Narcotic Control Bureau was having no jurisdiction to search and seize the syrups having codeine.
Learned counsel for the petitioners has further submitted that the case of petitioners is squarely covered by the case of Ram Dayal Mathur Vs. Union of India [ MB No. 8953 of 2013, decided by this Court on 03.04.2015, and Ashok Kumar Vs. Union of India (supra) decided by this Court on 15.10.2014, wherein it has been held that the cough syrups having codeine in permissible limit and ratio, the case will be governed by the provisions of the Drugs and Cosmetics Act, 1940 and Rules of 1945 and the provisions of N.D.P.S. Act, 1985 are not applicable. The conclusion in the above case has been mentioned in paragraph 101 of the judgment, which reads as under :-
“101. Considering the above noted discussion, relevant provisions of N.D.P.S. Act and Rules, relevant provisions of D & C Act and Rules, judgments rendered by various courts and documents appended with the petition which have neither been disputed nor controverted referred to hereinabove, this Court concludes as follows:
(i) Even if all the facts and circumstances alleged by the prosecuting agency are admitted to be correct, it cannot be said that the petitioner, who was serving as Territory Sales Manager in M/s Abbott Healthcare Pvt. Ltd. (manufacturer of Phensedyl Cough Syrup), Division at Lucknow, in any way abetted or conspired to commit offence under Section 8 of the N.D.P.S Act as punishable under Section 21 of the said Act. It was the duty of the petitioner to procure orders of Phensedyl Cough Syrup from licenced stockists or distributors and ensure its supply from licenced manufacturer viz; employer of the petitioner.
(ii) Phensedyl Cough Syrup is a Schedule ‘H’ drug under the Drugs and Cosmetics Act; has been manufactured by M/s Abbott Healthcare Pvt. Ltd, a licenced manufacturer under the D & C Act and Rules; had been stocked by a licenced stockist viz; M/s Simran Pharma, owned by co-accused, at licenced premises.
(iii) Phensedyl Cough Syrup is a therapeutic drug containing ‘codeine’ within specified limits, as provided under licence of the licenced manufacturer, under Drugs and Cosmetics Act.
(iv) Phensedyl Cough Syrup, as recovered, is covered under exception provided under entry no.35 of Central Government Notification dated 14.11.1985 isued under Section 2 (xi)(b) of the N.D.P.S.Act and, therefore, cannot be construed as a Narcotic Drug or Manufactured Drug, hence, Section 8 of the N.D.P.S.Act would not be attracted.
(v) The Directorate General of Health Services has issued clarification dated 26.10.2005 to specify that Phensedyl is a Schedule ‘H’ drug under the D & C Act and Rules and although it contains ‘codeine’ in limited prescribed quantity, would not fall under the provisions of N.D.P.S.Act and Rules.
(vi) Considering the Narcotic contents and nature of Schedule ‘H’ drug, the manufacture and distribution of the drug has been regulated under the D & C Act and Rules. For that purpose the provisions require the manufacturer, stockist, distributor and seller etc. to obtain licence, which is issued on compliance of certain conditions. If it is ensured that these conditions are adhered and complied with and the Schedule ‘H’ drug is sold only on prescription, there would be no misuse of the drug. The authorities therefore are required to ensure strict compliance of the conditions of licence so as to prevent its misuse. In the case in hand, if at all, an offence has been committed, it would be under the D & C Act, committed by the stockist viz; the co-accused, for violation of the provisions of Section 18-B punishable under Section 28-A of the D & C Act and/or other provisions.
(vii) This Court is also persuaded in concluding as above by judgments rendered by the Punjab and Haryana High Court in 1996 Cr.L.J. 3329, Amrik Singh v. State of Punjab; 1998 Cr.L.J. 1460 titled ‘Rajeev Kumar v. State of Punjab’; 1997 Cr.L.J. 3104 titled ‘Deep Kumar v. State of Punjab’ and judgment rendered by the Hon’ble Supreme Court of India in Md. Sahab Uddin and another v. State of Assam, decided on 5.10.2012 in Criminal Appeal No.1602 of 2012, S.L.P.(Crl.) No.5503 of 2012 read with judgment of Gauhati High Court in Md.Sahab Uddin and another v. State of Assam (Bail Application no.885 and 886 of 2012, decided on 25.5.2012). Likewise the judgment rendered by the Hon’ble Supreme Court of India in Rajesh Kumar Gupta’s case (supra) favours the legal proposition propounded on behalf of the petitioner.
(viii) This Court has also taken into account that N.D.P.S. Act and Drugs and Cosmetics Act, both are Central Legislations. N.D.P.S. Act specifically provides exceptions whereunder a ‘narcotic drug’ (codeine) can be used for medicinal/therapeutic purposes. Under the provisions of the Act, Central Notification dated 14.11.1985, whereunder prescribed quantity of codeine has been allowed to be included, per dosage unit, has been issued. Admittedly, Phensedyl Cough Syrup contains ‘codeine’ within the prescribed quantity.
Thus, in the considered opinion of this Court Phensedyl Cough Syrup falls within the exception provided under the N.D.P.S.Act and, therefore, its possession with licenced stockists would not invite the penalties under N.D.P.S. Act. Phensedyl Cough Syrup, in the facts and circumstances of this case is required to be considered as a drug under the Drugs and Cosmetics Act.”
In reply of above argument, learned counsel for the N.C.B. has submitted that the case of State of Uttaranchal Vs. Rajesh Kumar Gupta, 2007 (1) SCC 355, which has been relied upon by this Court in the case of Ashok Kumar Vs. Union fo India (supra), has been over ruled by the Hon’ble Supreme Court in the case of Union of India Vs. Sanjeev V. Despande (supra) and the Court while deciding the case of Ashok Kumar Vs. Union of India (Supra), decided on 15.10.2014, has not discussed the law laid down by the Hon’ble Supreme Court in the case of Union of India Vs. Sanjeev V. Despande (supra), which was decided earlier, i.e. on 12.08.2014.
Therefore, the case of Ashok Kumar Vs. Union of India (supra), in the light of law laid down by Hon’ble Apex Court in Union of India Vs. Sanjeev V. Despande (supra) lost its binding effect. It has also been submitted that the judgment of Ashok Kumar (supra) has been challenged by prosecution in Apex Court vide Criminal Appeal No.000115/2018 (Union of India Vs. Ashok Kumar), which is subjudice, The argument of learned counsel for N.C.B. finds force. In view of the court, at this stage the petitioners are not entitled for any relief on the basis of findings of the above case of Ashok Kumar (Supra).
Learned counsel for the petitioners has further submitted that the notice issued by Narcotics Control Bureau under Section 67 of N.D.P.S. Act, 1985 is without jurisdiction and is liable to be quashed.
Section 67 of NDPS Act, 1985 reads as under :-
“67. Power to call for information, etc.-Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,-
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.”
The case of petitioners is at the stage of collection of evidence/enquiry/investigation and the notice/summon under Section 67 has been issued to petitioners only for the satisfaction of investigating officer that whether there has been any contravention of the provisions of the N.D.P.S. Act,1985 or Rule or Order or not. It is quite possible that in the enquiry if the evidence comes before the Investigating Officer that the Firm of petitioners has not violated the Rules and Regulations and orders of N.D.P.S. Act, 1985 as well as Drugs and Cosmetics Act, 1940, the enquiry/Investigating Officer of NCB may submit its report accordingly and the petitioners may be exonerated from prosecution. The wording mentioned in Section 67 of N.D.P.S. Act, 1985, makes it clear that notice is merely for enquiry/interrogation. In the opinion of Court, a writ petition against such a kind of notice should not ordinarily be entertained. It is premature in nature because the notice by itself does not give a rise of cause of action, as no adverse order has yet been passed. It is quite possible that if the transaction is in accordance with law, the authorities may be satisfied by the enquiry and in the event of adverse decision, it will certainly be opened to accused persons/petitioners to assail the same in appropriate proceedings under the law. Undoubtedly in certain conditions, when there is a question of infringement of fundamental right or on the point of lack of jurisdiction, the such notice/summon can be challenged, but it is not in the present case.
Hence, at this stage of proceeding, it is not permissible in law to quash the notice/summon which has been issued to the petitioners for the purpose of enquiry/investigation, to satisfy himself that whether there has been any contravention of the provision of the Act, Rule or order of relevant inactment. Present case is at the stage of enquiry/investigation of fact that whether the offence has been committed by the petitioners-firm or not. By discussing many judgments, Hon’ble Supreme Court held in the case of Niharika Infrastructure Vs. State of Maharashtra, MANU/SC/0272/2021, that the Court will not normally interfere with an investigation into the case and will permit investigation into the offence, alleged to be completed. The intention of law is always that the investigating agency may be permitted to complete the investigation. Therefore, it will not be justified that the until investigation/enquiry is completed the FIR in question be nipped into bud by quashing same at the early stage of proceedings.
In view of the above discussion, the court is not inclined to quash the notice/summons issued against petitioners in both the writ petitions as well as the FIR as prayed in Writ Petition (Misc.Bench) No.11190/2021 (Hemant Kumar Saini Vs. Union of India & others).
The Court finds that present writ petitions are misconceived and are liable to be dismissed.
Accordingly, both the writ petitions are dismissed.
No comments:
Post a Comment