1. A Sub-Inspector of Police, Criminal Investigation Department ('CID'), Assam, lodged, on 1.12.2009, a First Information Report with the Officer in-Charge, CID Police Station, Assam, alleging, inter alia, thus : Acting on a secret information, the informant, along with his team of officials, on 30.11.2009, at 2.40 p.m., conducted search of a night super bus parked at Lalong Gaon, Lokhra, near National Highway 37, in presence of its driver, Lairenlakpam Thoiba Singh, its handyman, Azmeer Hussain, and some witnesses. On the search, so conducted, 31,298 (thirty-one thousand two hundred and ninety-eight) numbers of Spasmo Proxyvon capsules were found kept concealed in two secret chambers specially made inside the bus. The said capsules were accordingly seized and, on a query made by the informant, the driver and handyman failed to produce any document authorizing them to carry the said capsules. 2. Based on the information, so lodged, CID Police Station Case No.31/2009 under sections 380/411, IPC read with section 22(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act') was registered. The samples were sent to Forensic Science Laboratory ('the FSL'), which reported that the chemical examination of the samples gave positive test for propoxyphene and the amount of pro-poxyphene was found to be 497.50 m.g. and 479.91 m.g. respectively. On completion of investigation, charge-sheet was laid and the case has come to be registered as Sessions (Special) Case No.375/2009. By order, dated 5.5.2010, learned Additional Sessions Judge, Kamrup, has fixed the case for consideration of charge. 3. Challenging the legality and maintainability of the registration of the case under the provisions of the NDPS Act by the prosecution, the present application, under section 482, Cr.PC, has been made for quashing of the penal provisions of the NDPS Act, whereunder the case has been registered, on the ground that possession of spasmo proxyvon capsule or transportation thereof can, at best, be an offence under the Drugs and Cosmetics Act, 1940, but cannot be an offence under the NDPS Act. 4. I have heard Mr. M. I. Sharma, learned counsel for the petitioner, and Mr. Z. Kamar, learned Public Prosecutor, Assam. I have also heard Mr. A. M. Bora, learned counsel, who has appeared as amicus curiae. 5. Appearing on behalf of the petitioner, it has been contended by Mr. 4. I have heard Mr. M. I. Sharma, learned counsel for the petitioner, and Mr. Z. Kamar, learned Public Prosecutor, Assam. I have also heard Mr. A. M. Bora, learned counsel, who has appeared as amicus curiae. 5. Appearing on behalf of the petitioner, it has been contended by Mr. Sharma that the prosecution of the accused, under section 22(c) of the NDPS Act, is bad in law inasmuch as section 22 prescribes punishment if the contravention of the provisions of the NDPS Act or Rules or orders made or conditions of licence, granted thereunder, is in respect of any psychotropic substance. In order to be a psychotropic substance, contends Mr. Sharma, the substance, in the light of the definition of psychotropic substance, as contained in section 2(xxiii), must be included in the list of psychotropic substances, specified in the schedule to the NDPS Act. 6. In the case at hand, the prosecution alleges, points out Mr. Sharma, that the seized capsules, which bear the trade name of Spasmo Proxyvon, contain propoxyphene. It is also pointed out by Mr. Sharma that since prosecution against the petitioner has been launched under section 22(c) of the NDPS Act, it implies that propoxyphene, according to the prosecution, is a psychotropic substance or else, the prosecution of the accused could not have been sought for under section 22. However, the fact remains, submits Mr. Sharma, that propoxyphene does not find place in the list of psychotropic substances specified in the schedule to the NDPS Act. Consequently, the seized capsules, points out Mr. Sharma, cannot be said to contain any psychotropic substance. The prosecution of the accused abovenamed, therefore, is, contends Mr. Sharma, not sustainable in law and may be quashed by invoking this court's power under section 482, Cr.PC. 7. It is also submitted by Mr. Sharma that since the allegation against the accused abovenamed is regarding possession of psychotropic substance of commercial quantity and yet, when he is not shown to have ever been in possession of any psychotropic substance, as indicted hereinbefore, the question of prosecuting the accused for abetment of criminal conspiracy of an offence under the NDPS Act, as perceived by section 29, does not arise at all. Viewed from this angle, submits Mr. Sharma, the prosecution of the accused abovenamed, even under section 29 of the NDPS Act, is bad in law and may, therefore, be interfered with. 8. Viewed from this angle, submits Mr. Sharma, the prosecution of the accused abovenamed, even under section 29 of the NDPS Act, is bad in law and may, therefore, be interfered with. 8. Spasmo proxivon, further submits Mr. Sharma, is a medicine, it is used for medicinal purposes and section 8 of the NDPS Act does not prohibit possession of any narcotic drug or psychotropic substance if such possession is for medicinal purpose. Even if the accused abovenamed, according to Mr. Sharma, is alleged to have been found in possession of Spasmo Proxyvon, which is used for medicinal purpose, such possession, if it is without any authority or licence, would, at best, expose the accused abovenamed to the prosecution for an offence committed under the Drugs and Cosmetics Act, 1940, and not under the penal provisions of the NDPS Act. Considered from this angle too, submits Mr. Sharma, the prosecution of the accused abovenamed, for the alleged offences under the NDPS Act, is bad in law and may, therefore, be not sustained by this court. 9. Support for his submission, that if a person is found in possession of psychotropic substance, which is used for medicinal purpose, no offence can be said to have been committed by such a person under the NDPS Act, Mr. Sharma refers to, and relies upon, the case of State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 . 10. In support of his submission, that the prosecution of the accused, under any of the provisions of the NDPS Act, is bad in law, Mr. Sharma has also referred to rule 53 and rule 64 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 ('the NDPS Rules'), to contend that since Schedule I, which rules 53 and 64 refer to, does not contain propoxyphene, the prosecution of the accused is impermissible in law under section 22(c) or section 29 or any other penal provisions of the NDPS Act. 11. Referring to the table of the Notification, dated 19.10.2001, published by the Central Government in exercise of its powers under clauses (viia) and (xxiiia) of section 2 of the NDPS Act, which specifies small quantity and commercial quantity of various narcotic drugs and psychotropic substances, Mr. 11. Referring to the table of the Notification, dated 19.10.2001, published by the Central Government in exercise of its powers under clauses (viia) and (xxiiia) of section 2 of the NDPS Act, which specifies small quantity and commercial quantity of various narcotic drugs and psychotropic substances, Mr. Sharma contends that propoxyphene, which the seized capsules allegedly contain, has not been mentioned in the table of Notification, dated 19.10.2001, aforementioned and, hence, the provisions of section 22(c), which punishes a person if he is found to be in possession of psychotropic substance of commercial quantity, are not attracted to the facts of the case at hand. Inasmuch as the name propoxyphene does not find place in the said table, the prosecution of the accused abovenamed, reiterates Mr. Sharma, is bad in law and may, therefore, be set aside and quashed. 12. Resisting this criminal petition, Mr. Z. Kamar, learned Public Prosecutor, has submitted that the facts, as alleged in the FIR, and the report of the investigation, which has been carried out, reveal that the capsules were being carried in secret chambers specially designed and made, in the bus, for carrying such contrabands. 13. Turning to the question of prosecution of the accused abovenamed for offences under section 22(c) and section 29 of the NDPS Act, the learned public prosecutor has referred to the report of the FSL and submitted that this report indicates that the seized materials gave positive test for propoxyphene and the amount of propoxyphene were found to be 479.50 m.g. and 479.51 mg. The fact that the seized capsules gave positive test for propoxyphene is, points out Mr. Sharma, not in dispute at this stage. The question, therefore, is, submits the learned public prosecutor, whether the accused, having been found in possession of propoxyphene, can be prosecuted under section 22(c) of the NDPS Act or whether he can and shall be prosecuted under some other penal provisions of the NDPS Act. 14. Responding to Mr. Sharma's contention that the table of Notification, dated 19.10.2001, specifying small quantity and commercial quantity of the narcotic drugs and psychotropic substances does not mention propoxyphene, the learned public prosecutor points out that at Serial No.33 of the said table, dextropropoxyphene has been mentioned and the terms, 'propoxyphene and dextropropoxyphene', are, according to learned public prosecutor, synonymous and their components are same and identical. The question, therefore, is, according to the learned public prosecutor, whether propoxyphene is a narcotic drug or psychotropic substance? If propoxyphene is not a psychotropic substance, but it is a narcotic drug, then, the prosecution of the accused, under section 22(c), may not be maintainable inasmuch as section 22(c) relates to possession of commercial quantity of psychotropic substance if such possession is in contravention of any provision of the NDPS Act or any rule or order made or condition of licence granted thereunder, but he would, contends the learned public prosecutor, be liable, nevertheless, for prosecution for possessing, without any valid licence, commercial quantity of narcotic drug if propoxyphene can be down by the prosecution to be a narcotic drug within the meaning of the term narcotic drug as defined in section 2(xiv)of the NDPS Act. 15. With regard to the question, as to whether propoxyphene is a narcotic drug or psychotropic substance, or neither of these two, it is pointed out by the learned Public Prosecutor that the expert has furnished a report describing all materials pertaining to the substance and, as per this report, propoxyphene and dextropropoxyphene are synonymous, which means that the components are same and identical. The learned public prosecutor further submits that the opinion of the expert is based on the authority of a Chemical Literature, namely, Clarke's Isolation and Identification of Drugs. A careful reading of the said text would show, points out the learned public prosecutor, that dextropropoxyphene and propoxyphene are synonymous inasmuch as both contain C H22NO2. Spasmo Proxyvon contains, points out learned Public Prosecutor, as follows : (a) Dicyclomine Dydrochloride IP - 10 mg. (b) Propoxyphene Napsylate - 100 mg. (c) Acetaminophen - 400 mg. 16. According to the learned Public Prosecutor, dextropropoxyphene or propoxyphene, as it is commonly known, is commercially available as the hydrochloride or napsylate salt. It is also submitted by the learned public prosecutor that as per chemical literature, dextropropoxyphene and propoxyphene are isomers and the word isomer has been incorporated in Note 1 of the Footnote of the Table specifying small quantity and commercial quantity under the NDPS Act. The Oxford Dictionary defines, points out the learned public prosecutor, the word, isomer, as a part or share, a substance isomeric with another, anyone of a number of isomeric compounds. The Oxford Dictionary defines, points out the learned public prosecutor, the word, isomer, as a part or share, a substance isomeric with another, anyone of a number of isomeric compounds. Learned public prosecutor further points out that isomeric is composed of same element in the same proportion and, ordinarily, having the same molecular weight, but forming different substances with different properties. Support for this submission is sought to be derived by the learned public prosecutor from the 'Review of Propoxyphene Products for Inclusion within Alberta's Triplicate Prescription Program' published on 29.8.2003. 17. It is further contended by the learned public prosecutor that dextropropoxyphene is a synthetic opiate, which is a mild analgesic structurally related to methadone. It is, according to the learned public prosecutor, an opium derivative and, being an opium derivative, it is, in the light of the provisions of section 2(xiv), a narcotic drug inasmuch as section 2(xiv) defines a narcotic drug to include all manufactured drugs and manufactured drug, under section 2(xi), means, inter alia, opium derivatives. 18. Referring to the case of Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 Crl. LJ4521 (SC), learned public prosecutor has pointed out that in this case, it has been clearly held that 'opium derivatives' fall within the expression 'manufactured drug' as defined in section 2(xi) of the NDPS Act, and, hence, there can be no escape from the conclusion that Spasmo Proxyvon capsules, which were seized, in the present case, from the possession of the accused, containing opium derivatives, amounted to manufactured drug and the same, being a manufactured drug, was a narcotic drug and since the possession of the said narcotic drug was more than 500 grams, the possession of the said narcotic drug by the accused must be treated to be of commercial quantity and the accused are, therefore, liable for prosecution under section 21 of the NDPS Act. In this regard, learned public prosecutor has pointed out that the Notification, dated 19.10.2001, aforementioned, which places dextropropoxyphene at Serial No.33, shows that possession of 500 gins of dextropropoxyphene is possession of commercial quantity of dextropropoxyphene. 19. In this regard, learned public prosecutor has pointed out that the Notification, dated 19.10.2001, aforementioned, which places dextropropoxyphene at Serial No.33, shows that possession of 500 gins of dextropropoxyphene is possession of commercial quantity of dextropropoxyphene. 19. In substance, what transpires from the submissions of the learned public prosecutor is that propoxyphene, according to the learned public prosecutor, is a narcotic drug and, hence, when the accused has been found in possession of commercial quantity of propoxyphene, which is contended by the prosecution to be a narcotic drug, the accused can be proceeded, if not under section 22 (c), under section 21(c) of the NDPS Act, which relates to possession of narcotic drug of commercial quantity in contravention of the provisions of the NDPS Act or the NDPS Rules or order made thereunder or the conditions of licence granted thereunder. 20. What, thus, emerges from the submissions of the learned public prosecutor is that the prosecution does not insist that accused was found to be in possession of psychotropic substance; rather, what the prosecution contends, now, is that the accused had been found in possession of narcotic drug. Admittedly, therefore, prosecution of the accused, according to what the prosecution, now, contends, is not possible under section 22 (c) of the NDPS Act, but he can still be prosecuted, contends prosecution, for committing an offence under section 21(c) of the NDPS Act. 21. In the facts and circumstances of the present case, therefore, the question is : whether the accused were found in possession of narcotic drug and whether their prosecution, under the penal provisions of section 21(c) of the NDPS Act, is permissible? 22. Mr. A.M. Bora, learned amicus curiae, has painstakingly taken this court extensively through various provisions of the NDPS Act and the NDPS Rules and pointed out that section 2(xi) has defined manufactured drug to mean all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, and narcotic drug, which stands defined in section 2(xiv) of the NDPS Act, means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. Mr. Mr. Bora has also pointed out that section 8 of the NDPS Act prohibits, amongst others, possession of narcotic drug as well as psychotropic substance except for medicinal or scientific purposes and in the manner and to the extent as provided by the provisions of the NDPS Act or the Rules or Order made thereunder or the conditions of licence granted thereunder. Mr. Bora further points out that if a person is found to possess narcotic drug in contravention of the provisions of the NDPS Act or the Rules or order made thereunder or the conditions of licence granted thereunder, such a person is liable to be prosecuted under section 21 of the NDPS Act and if an accused is found to be in possession of commercial quantity of narcotic drug, he will be liable to be prosecuted under section 21(c) of the NDPS Act. 23. Mr. Bora submits that the term 'drug' has not been defined in the NDPS Act. The definition of the term 'drug', which appears in section 3(b) of the Drugs and Cosmetic Act, 1940, would, therefore, according to Mr. Bora, govern the interpretation of the term 'drug', wherever the term 'drug' appears in the NDPS Act. 24. In the case at hand, points out Mr. Bora, the materials on record clearly reveal that Spasmo Proxyvon is merely the trade name of a drug. What is, however, important to note, according to Mr. Bora, is the fact that according to the authorities cited by the learned public prosecutor, propoxyphene and dextro-propoxyphene are synonyms of each other and that both are derivatives of opium. Thus, spasmo proxyvon capsules, which, admittedly, contain propoxyphene, is, in reality, points out Mr. Bora, nothing but dextro-propoxyphene, which is a narcotic drug and when dextro-propoxyphene stands mentioned in the notification, dated 19.10.2001, aforementioned, there can be no escape from the conclusion that a spasmo proxyvon capsule is a narcotic drug and the possession thereof would be an offence under section 21 of the NDPS Act if such possession is in contravention of the provisions of the NDPS Act or the Rules or order made thereunder or the conditions of licence granted thereunder. Otherwise, also, points out Mr. Otherwise, also, points out Mr. Bora, propoxyphene, being an opium derivative, falls within the definition of manufactured drug and a manufactured drug is, in the light of the definition of narcotic drug, as given in section 2(xiv) of the NDPS Act, becomes a narcotic drug. 25. Referring to the notification bearing No. S.O. 826(E), dated 14.11.1995, Mr. Bora has pointed out that section 2(xi) of the NDPS Act, while defining manufactured drug, lays down, vide clause (b) thereof, that the Central Government, by means of a notification in the Official Gazette, declare any other narcotic substance or preparation to be a manufactured drug if the Central Government, having regard to available information a& to its nature or pursuant to any decision under any international convention so decides. In fact, as has been rightly pointed out by Mr. Bora, learned amicus curiae, that the Central Government, by a notification, bearing No. S.O. 826 (E), dated 14.11.1995, has, in exercise of its powers under sub-clause (b) of clause (ii) of section 2 of the NDPS Act, declared certain narcotic substances and preparations to be manufactured drug inasmuch as clause (b)(xi) of the notification, dated 14.11.1995, mentions, Dimetylamino-1, 2-diphenyl-2methyli-2 butanol, ropionate (the international non-proprietary name of which is 'Dextropropoxyphene') and its salts preparations, admixtures, extracts and other substances containing any of these drugs, except preparations for oral use containing not more than 135 milligrams of Dextro-propoxyphene base per dosage unit or with a concentration of not more than 2.5 per cent in undivided preparations provided that such preparations do not contain any substances controlled under the Convention of Psychotropic Substances, 1971. 26. Referring to the case of D. Ramakrishnan v. Intelligence Officer, Narcotic Control Bureau, (2009) 14 SCC 603 , Mr. Bora has pointed out that the Supreme Court has noted, at para 14 of the said decision, that section 80 of the NDPS Act provides that the provisions of the NDPS Act or the Rules made thereunder are in addition to, and not in derogation of, the Drugs and Cosmetics Act, or the Rules made thereunder. The mere fact, therefore, contends Mr. The mere fact, therefore, contends Mr. Bora, that a substance falls within the term 'drug', as defined under the Drugs and Cosmetics Act, would not necessarily exclude the substance from being treated as a 'narcotic drug' or 'psychotropic substance' if the composition thereof satisfy, otherwise, the definition of the term, 'narcotic drug' or 'psychotropic substance', provided, of course, concedes Mr. Bora, that the possession of the narcotic drug or psychotropic substance is in contravention of the provisions of the NDPS Act, or the Rules, or the Order or the conditions of licence granted thereunder. 27. Referring to the case of State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 , Mr. Bora has pointed out that in Rajesh Kumar Gupta (supra), it was contended that since the drug, in question, was being used for medicinal purposes, section 8 of the NDPS Act is not applicable. The issue, however, as to whether a person, if found in possession of a drug, within the meaning of the Drugs and Cosmetics Act, would or would not be liable for prosecution under the NDPS Act and, if so, under what circumstances, such a prosecution is permissible, has not been dealt with and decided finally by the Supreme Court in Rajesh Kumar Gupta (supra). 28. Hence, according to Mr. Bora, the case of Rajesh Kumar Gupta (supra) is not of much assistance, in the present case, in deciding the issue, which has been raised, namely, as to whether Spasmo Proxyvon capsule, which has propoxyphene as an opium derivative, is or is not a narcotic drug and whether its possession exposes a person to punishment under section 21 of the NDPS Act? 29. Mr. Bora points out that the Drugs and Cosmetics Act, does not deal with exports of narcotic drug or psychotropic substance; rather, the provisions of the Customs Act, 1962, deal with the exports of substances, which may fall within the definition of 'drug' under the Drugs and Cosmetics Act, and licences are, therefore, required to be obtained to export a substance defined, under the Drugs and Cosmetics Act, as a drug and if anyone exports or imports, or attempts to export or import, a drug, which, otherwise, satisfies the definition of narcotic drug, without having licence for such export or import, would be liable for punishment under the NDPS Act. In this regard, the Supreme Court has also pointed out, submits Mr. Bora, that the appellant, in D. Ramakrishnan (supra), had neither applied for, nor granted, any authority to export the substance, which fell within the meaning of the term, 'drug' as defined under the Drugs and Cosmetics Act, and, in the absence of any such a licence, export of the substance, though drug, is an offence under the NDPS Act. Hence, merely because of the fact that Spasmo Proxyvon is a drug within the meaning of Drugs and Cosmetic Act, it would not mean, contends Mr. Bora, that if even the ingredients thereof are found to fall within the definition of 'narcotic drug', as given by clause 2(xiv) of section 2 of the NDPS Act, it would not be regarded as an offence under the NDPS Act. 30. Repelling the submissions, made by the learned public prosecutor and the learned amicus curiae, Mr. Sharma does not insist that the accused abovenamed cannot be prosecuted under section 21 of the NDPS Act if the seized capsules were found to contain narcotic drug and not psychotropic substance. Mr. Sharma, however, contends that the seized capsules neither contain psychotropic substance nor did the capsules contain narcotic drug. In no way, therefore, according to Mr. Sharma, prosecution of the accused, in the present case, for offence, allegedly committed under the NDPS Act, is sustainable. 31. Referring to the Notification, bearing No. S.O.826(E), dated 14.11.1995, which Mr. Bora, learned amicus curiae, has relied upon, Mr. Sharma has submitted that even this Notification clearly shows that in order to be a manufactured drug, the controlled substance, in question, must be covered by the convention of the Psychotropic Substances Act, 1971; whereas, in the case at hand, propoxyphene is not covered by the convention of the Psychotropic Substances Act. 32. In the light of the rival submissions made before me, let me, now, analyze the scheme of the NDPS Act relevant for the purpose of the present case and determine if the prosecution of the accused abovenamed needs interference by this court in exercise of its powers under section 482, Cr.PC. 33. 32. In the light of the rival submissions made before me, let me, now, analyze the scheme of the NDPS Act relevant for the purpose of the present case and determine if the prosecution of the accused abovenamed needs interference by this court in exercise of its powers under section 482, Cr.PC. 33. While considering this criminal petition, it needs to be borne in mind that prosecution of a person, under the NDPS Act, is not possible unless the substance, which he is found to be in possession of, is either a narcotic drug or a psychotropic substance. Determination of the meaning, therefore, of the expressions, narcotic drug and psychotropic substance, is imperative and, for this purpose, not only the definitions of the expressions, narcotic drug and psychotropic substance, but also of some other expressions, used in the NDPS Act, being relevant, are necessary to be examined. 34. It may, now, be noted that the expression, narcotic drug, as denned in section 2(xiv), means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods. In the present case, neither it has been alleged by the prosecution that the accused has been found in possession of opium or poppy straw nor is it the case of the prosecution that the accused has been found in possession of coca leaf or cannabis (hemp). One has to determine, therefore, as to whether the accused can be said to have been found in possession of manufactured drug, for, the expression, narcotic drug, includes all manufactured drugs. 35. The quest for the meaning of the term, manufactured drug, takes one to section 2(xi) of the NDPS Act, which defines manufactured drug to mean (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 in its nature or to a decision, if any under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug. 36. It can be clearly seen, from the definition of the term, manufactured drug, that opium derivatives are manufactured drugs. 36. It can be clearly seen, from the definition of the term, manufactured drug, that opium derivatives are manufactured drugs. This apart, the Central Government may, as rightly pointed out by the learned amicus curiae, declare any other narcotic substance or preparation to be a manufactured drug if, having regard to the available information as to its nature or pursuant to any international convention, the Central Government decides to make such a declaration. 37. Thus, when manufactured drug includes opium derivatives, it logically follows that narcotic drug, which includes all manufactured drugs, would also include opium derivatives. Hence, in other words, opium derivatives would be manufactured drug. This apart, the Central Government may, having regard to the available information as to its nature, declare, by notification in the Official Gazette, any 'narcotic substance' or preparation, to be a manufactured drug. On such a declaration having been made, the narcotic substance or preparation, as the case may be, shall be treated as a manufactured drug. In fact, and as already indicated above, the Central Government has already, with the help of the Notification No. S.O.826(E), dated 14.11.1995, declared dextropropoxyphene as a manufactured drug. 38. Opium derivatives, as defined under section 2(xvi), 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; (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. 39. 39. A careful perusal of sub-clauses (a), (b), (c), (d) and (e) of clause (xvi) of section 2 shows that opium derivatives really mean opium, which has undergone a process, 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; 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; phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine. 40. What emerges from the above discussion is that the expression 'manufactured drug' has been defined in section 2(xi) and the definition of manufactured drug shows that opium derivatives, as defined in section 2(xvi), are manufactured drugs. As far as the expression 'narcotic drug' is concerned, its definition, as contained in section 2(xiv), shows that apart from coca leaf, cannabis (hemp), opium, poppy straw, a manufactured drug is a narcotic drug. 41. As against the above definition of the expression, narcotic drug, which includes manufactured drug, the expression, psychotropic substance, as defined in section 2(xxiii), 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. 42. From a bare reading of the definition of narcotic drug, as contained in section 2(xiv) vis-a-vis the definition of psychotropic substance, as contained in section 2(xxiii), shows that a psychotropic substance is required to be specified in the Schedule to the NDPS Act in order to attract the provisions of the NDPS Act. There is, it may be instantly noted, only one Schedule to the NDPS Act. Unless, therefore, a substance, natural or synthetic, falls within the Schedule to the NDPS Act, it cannot be treated as a psychotropic substance. There is, it may be instantly noted, only one Schedule to the NDPS Act. Unless, therefore, a substance, natural or synthetic, falls within the Schedule to the NDPS Act, it cannot be treated as a psychotropic substance. In other words, independent of the list of the psychotropic substances, given in the Schedule to the NDPS Act, there cannot be psychotropic substance, which would attract the penal provisions of the NDPS Act; whereas, a substance would be a narcotic drug if the same satisfies the definition of narcotic drug as given in section 2(xiv). 43. Coupled with the above, the Review of Propoxyphene Products For Inclusion within Alberta's Triplicate Prescription Program, which the learned public prosecutor has relied upon, reads as under : "Dextropropoxyphene is a synthetic opiate, mild, analgesic, structurally related to methadone. Unlike levo propoxyphene, which possesses only antitussive properties, dextropropoxyphene possesses only analgesic activity. Dextropropoxyphene, like other opiates, mimics the effects of endorphins by binding to opioid receptors in the central nervous system. Dextropropoxyphene, or propoxyphene, as it is commonly known, is commercially available as the hydrochloride or napsylate sale. Propoxyphene hydrochloride 65 m.g. is equivalent to propoxyphene napsylate 100 mg. Approximately, 25% of propoxyphene is metabolized to non-propoxyphene, which possesses less CNS depressant activity but a greater local anesthetic effect. Clarke's Isolation and Identification of Drugs: Dextro propoxyphene Synonym : Propoxyphene (+) - (IS, 2R) - 1 Benzyl - 3- Dimethtylamino-2 methyl-1-phenyl-Ipropylpropionate C22H29N02 = 339.5 CAS-469-62-5 Dextro propoxyphene hydrochloride Synonym : Propoxyphene Hydrochloride Proprietary Names : Alghphan, Agodex, Antalvic, Daraphen, Darvon, Depronal, Depronal SA, Develin, Donene, Dolocap, Erantin, Mardon, Novopropoxyn, Pro-65, Proxagesic, SK-65, 642 Tablets. It is an ingredient of Cosalgesic and Distalgesic. The Merck Index : Propoxyphene (469-62-5) (a-S) - a [1R]-2-(Dimethylamino)-1-methylethyl - a phenyl benzeneethanol propanoate (ester), a-d-4-dimethylamino-3-methyl-1,2-dipheny 2 - buttanolpropionate (+)-11, 2-dipheny 1-2-propinoxy-1, 2-dipheny 1-3-methy 1-2-opionyloxybutane; a-d-propoxyphene; dextropropoxyphene." 44. What is, now, necessary to note is that the NDPS Act defines what is small quantity and what is commercial quantity. What is also necessary to note, in this regard, is that the expressions, commercial quantity as well as small quantity, are defined in the NDPS Act in relation to both narcotic drugs as well as psychotropic substances. What is, now, necessary to note is that the NDPS Act defines what is small quantity and what is commercial quantity. What is also necessary to note, in this regard, is that the expressions, commercial quantity as well as small quantity, are defined in the NDPS Act in relation to both narcotic drugs as well as psychotropic substances. Commercial quantity, in relation to narcotic drugs and psychotropic substances, means, as defined in section 2(viia), any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette and, small quantity, in relation to narcotic drugs and psychotropic substances, means, as defined in section 2(xxiiia), any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. 45. A combined reading of the two expressions, namely, commercial quantity as well as small quantity, makes it clear that it is the Central Government, which, by means of notification in the Official Gazette, has to specify, as to what quantity of a narcotic drug or psychotropic substance, as the case may be, would be treated to be commercial quantity or small quantity. It is in exercise of the powers, given to the Central Government, by Clauses (viia) and (xxiiia) of section 2 of the NDPS Act, that the Notification, dated 19.10.2001, has been issued, which the learned public prosecutor has referred to in order to show that dextropropoxyphene stands mentioned at Serial No. 33 of the said Notification, dated 19.10.2001, because, according to the learned public prosecutor, dextropropoxyphene is same as propoxyphene, which is a opium derivative and, being an opium derivative, dextropropoxyphene falls within the definition of manufactured drug. In the light of the definition of the expression, narcotic drug, as contained in section 2(xiv), as every manufactured drug is a narcotic drug. Consequently, dextropropoxyphene is nothing but a narcotic drug. 46. As a matter of fact, it is not in dispute before this court, in the face of the authorities, cited by the learned public prosecutor, that dextropropoxyphene is same as propoxyphene and that propoxyphene is an opium derivative. Consequently, dextropropoxyphene is nothing but a narcotic drug. 46. As a matter of fact, it is not in dispute before this court, in the face of the authorities, cited by the learned public prosecutor, that dextropropoxyphene is same as propoxyphene and that propoxyphene is an opium derivative. Considered in this light, there can be no escape from the conclusion that propoxyphene, being an opium derivative, is a manufactured drug within the meaning of its definition as contained in section 2(xi) and since manufactured drug is, within the meaning of section 2(xiv), a narcotic drug, dextropropoxyphene, being a manufactured drug and being same as propoxyphene, is a narcotic drug. 47. It is, now, time to turn to section 8 of the NDPS Act, which provides 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, posses, 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 there under 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 there under, 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." 48. From a bare reading of section 8, it becomes clear that possession of both narcotic drug as well as psychotropic substance is prohibited except when such possession is 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 or the conditions of the licence granted thereunder. 49. Bearing in mind that possession of narcotic drug or psychotropic substance is prohibited except for medical or scientific purposes and to the extent, as provided by the NDPS Act or the NDPS Rules or orders made thereunder or the conditions of licence granted thereunder, let me, now, come to section 21 of the NDPS Act, which reads as under : "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 there under, 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 - (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend 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 extend to ten years and with fine which may extend 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." 50. Close on the heels of section 21, section 22 reads as under : "22. Punishment for contravention in relation to psychotropic substances. Close on the heels of section 21, section 22 reads as under : "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 there under, manufactures, possesses, sells, purchases, transports, imports inter-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 extend to six months, or with fine which may extend 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 extend to ten years, and with fine which may extend 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." 51. Areading of section 21 vis-a-vis section 22 clearly reveals that while section 21 prescribes punishment for, inter alia, possession of manufactured drug or any 'preparation' containing manufactured drug in contravention of any provision of the NDPS Act or the NDPS Rules or order made or conditions of licence granted thereunder, section 22 prescribes punishment for, inter alia, possession of any psychotropic substance in contravention of any provision of the NDPS Act or NDPS Rules or order made or conditions of licence granted thereunder. 52. A closer reading of section 21 vis-a-vis section 22 shows that the penal provisions, contained in section 21, are divided into three clauses, namely, clauses (a), (b) and (c). Clause (a) of section 21 is attracted, when the contravention involves small quantity, clause (c) is attracted, when the contravention involves commercial quantity, and clause (b) is attracted, when the contravention involves such a quantity, which is lesser than commercial quantity but greater than small quantity. Similarly, section 22 is also divided into three clauses, namely, clauses (a), (b) and (c). Clause (a) of section 22 is attracted, when the contravention involves small quantity. Similarly, section 22 is also divided into three clauses, namely, clauses (a), (b) and (c). Clause (a) of section 22 is attracted, when the contravention involves small quantity. Clause (c) is attracted, when the contravention involves commercial quantity, and clause (b) is attracted, when the contravention involves such a quantity, which is lesser than commercial quantity but greater than small quantity, the difference between sections 21 and 22 being that while section 21 relates to possession, sale, purchase, transportation, import or export inter-State of manufactured drug and preparations. Section 22 deals with the contravention in respect of psychotropic substance. 53. No wonder, therefore, that the Notification, dated 19.10.2001, which has been published by the Central Government in exercise of its powers under clauses (viia) and (xxiiia), specifies only small quantity and commercial quantity of various narcotic drug and psychotropic substances meaning thereby that if the quantity of a narcotic drug or psychotropic substance, as the case may be, is greater than the small quantity, which has been specified in the table of the Notification aforementioned, but lesser than commercial quantity, as specified in the table of the Notification aforementioned, then, such contravention would be regarded as a contravention involving a quantity, which is lesser than commercial quantity but greater than small quantity. 54. In substance, therefore, when a person is found to be in possession of a narcotic drug, it has to be ascertained if he is in possession of small quantity, commercial quantity, or such a quantity, which is lesser than commercial quantity but greater than small quantity. If he is in possession of small quantity, it is clause (a), which would be attracted; if the person is in possession of commercial quantity, clause (c) would be attracted and, if the person is in possession of such a quantity, which is lesser than commercial quantity but greater than small quantity, clause (b) would be attracted. 55. Coming to the NDPS Rules, it needs to be noted that Schedule I to the NDPS Rules has been framed in terms of rules 53 and 64 of the said Rules. Both these rules, being referred to, and relied upon, by Mr. Sharma, are reproduced below : "53. General prohibition. 55. Coming to the NDPS Rules, it needs to be noted that Schedule I to the NDPS Rules has been framed in terms of rules 53 and 64 of the said Rules. Both these rules, being referred to, and relied upon, by Mr. Sharma, are reproduced below : "53. General prohibition. - Subject to the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I is prohibited : Provided that nothing in this rule shall apply in case the drug substance is imported into or exported out of India subject to an import certificate or export authorization issued under the provision of this Chapter and for the purpose mentioned in Chapter VII-A. 64. General prohibition. - No person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I." 56. A careful reading of rule 53 clearly shows that this rule relates to importing into, and exporting out of, India all narcotic drugs and psychotropic substances specified in Schedule I. In the present case, since the allegation is not that the accused has imported into, or exported out of, India any narcotic drug or psychotropic substance, Schedule I to the NDPS Rules is not attracted at all. Merely, therefore, for the reason that dextropropoxyphene or propoxyphene is not mentioned in Schedule I to the NDPS Rules, it cannot be held that the prosecution of the accused is bad in law. As far as rule 64 is concerned, this rule comes into play if a person manufactures, possesses, transports, imports inter-State, export inter-State, sells, purchases, consumes or uses any of the psychotropic substances specified in Schedule I. 37. Though the charge-sheet against the accused has been lodged under section 22(c) of the NDPS Act, which relates to possession of commercial quantity of psychotropic substance, the fact of the matter remains that the learned public prosecutor concedes that section 22(c) is not attracted to the - facts of the present case inasmuch as the accused has been found, according to the prosecution, in possession of narcotic drug and, hence, Schedule I to the Rules becomes irrelevant. 58. 58. Bearing in mind the fact, that according to the prosecution, the seized capsules contain propoxyphene, which is a narcotic drug and not a psychotropic substance, let me, now, determine, if the prosecution of the accused, in the present case, for an offence under section 22(c) of the NDPS Act, in the light of the materials placed on record, is permissible? Suffice it to point out, in this regard, that since propoxyphene is admittedly not a psychotropic substance, prosecution of the accused, under section 22(c), is not permissible. 59. The question, therefore, which, now, arises for consideration is : Whether prosecution of the accused, in the face of the materials on record and the law relevant thereto, possible under section 21(c) of the NDPS Act? In this regard, it needs to be noted that in the light of the authorities cited by the learned public prosecutor, there can be no escape from the conclusion that propoxyphene is same as dextropropoxyphene. In fact, it has not been contended by Mr. Sharma that propoxyphene is not same as dextropropoxyphene and/or that dextropropoxyphene or propoxyphene is not an opium derivative. Since' propoxyphene or dextropropoxyphene, as the case may be, is an opium derivative, which is squarely covered by the definition of manufactured drug, as given in section 2(xi), it logically follows that dextropropoxyphene as well as propoxyphene are manufactured drugs. Since all manufactured drugs are, within the meaning of section 2(xiv), narcotic drug, it logically follows that in the face of the materials on record, the accused can be prosecuted for possession of commercial quantity of narcotic drug in terms of the provisions of section 21(c) of the NDPS Act, when he was allegedly found to be in possession of propoxyphene. This apart, in terms of the Notification, bearing No. S.O.826(E), dated 14.11.1995, dextropropoxyphene is a manufactured drug and, as dextropropoxyphene is, according to the authorities cited by the learned public prosecutor, is same as propoxyphene, it further follows that the accused, having been allegedly found to be in possession of commercial quantity of propoxyphene, can be prosecuted under section 21(c) of the NDPS Act. While the prosecution of the accused, therefore, under section 22(c) cannot be maintained, his prosecution, under section 21(c) of the NDPS Act, is permissible in law. While the prosecution of the accused, therefore, under section 22(c) cannot be maintained, his prosecution, under section 21(c) of the NDPS Act, is permissible in law. Whether, as a matter of fact, the accused was found in possession of Spasmo Proxyvon capsules and whether such possession of the capsules was or was not conscious are the questions, which would be determined at the trial. 60. Yet another contention, raised on behalf of the accused, is that the accused is not shown to have been found in possession of commercial quantity of narcotic drug. Suffice it to point out, in this regard, that since the accused abovenamed was found to have been allegedly carrying as many as 31,298 capsules, it clearly follows that if added together, the quantity of propoxyphene, found in the possession of the accused, weighed as much as 1 kg. 877 gm. and 500 gms of propoxyphene being, in terms of the Notification, dated 19.10.2001, commercial quantity, the accused is prima facie shown, according to the materials on record, to have been carrying commercial quantity of propoxyphene. (Each spasmoproxyvon tablet contains acetaminophen 400 m.g., diclyclomine hydrochloride 10 mg and propoxyphene napsylate 100 mg.) Whether, as a matter of fact, the accused was carrying the said quantity of dextropropoxyphene is a question, which can be determined at the trial. 61. Though what has been discussed and pointed out above is adequate to dispose of this criminal petition, considering the fact that it has been strenuously argued by Mr. Sharma, learned counsel, that since Spasmo Proxyvon is a medicine, it is used for medicinal purpose and section 8 of the NDPS Act does not prohibit possession of any narcotic drug or psychotropic substance if such possession is for medicinal purpose, I deem it appropriate to deal with this aspect of the submission too so that a plea, which the accused has taken for the purpose of getting the present criminal prosecution set aside and quashed, does not remain unanswered. 62. With regard to the above, Mr. 62. With regard to the above, Mr. Sharma further submits that even if the accused abovenamed has been found in possession of Spasmo Proxyvon, which is used for medicinal purpose, such possession, if it is without any authority or licence, would, at best, expose the accused abovenamed to the prosecution for an offence committed under the Drugs and Cosmetics Act, 1940 CD&C Act'), and not under the penal provisions of the NDPS Act. Considered from this angle too, contends Mr. Sharma, the prosecution of the accused abovenamed, for the alleged offences under the NDPS Act, is bad in law and may, therefore, be not sustained by this court. 63. In support of his submission that the prosecution of the accused, under any of the provisions of the NDPS Act, is bad in law, Mr. Sharma has referred to rule 53 and rule 64 of the Narcotic drugs and Psychotropic Substances Rules, 1985 ('the NDPS Rules') and contends that since Schedule I to the NDPS Rules, which rules 53 and 64 refer to, does not contain propoxyphene, the prosecution of the accused is impermissible in law under section 22(c) or section 29 or under any other penal provisions of the NDPS Act. For the purpose of determining the correctness of the submissions of Mr. Sharma, it is necessary to take note of section 8. The relevant provisions of section 8 read as under: "8. Prohibition of certain operations. For the purpose of determining the correctness of the submissions of Mr. Sharma, it is necessary to take note of section 8. The relevant provisions of section 8 read 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, posses, 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 authorization: Provided that, and subject to the other provisions of this Act and the rules made there under, 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." (emphasis is added) 64. It is, no doubt, true that section 8(c) of the NDPS Act lays down that the bar, under the substantive part of section 8(c), prohibiting possession of narcotic drugs and psychotropic substance would not be attracted if the narcotic drugs or psychotropic substance is used for medical or scientific purpose. This exception is, however, subject to a noticeably important condition and the condition is that in order to be in possession of narcotic drugs or psychotropic substance, the possession must not only be for medical or scientific purpose, but the use or possession thereof must be had in a manner as provided under the NDPS Act or the NDPS Rules or orders made thereunder. This apart, the use and/or possession of narcotic drugs and psychotropic substances, according to section 8(c), must be to the extent as may have been provided under the NDPS Act or the NDPS Rules or the conditions of licence granted thereunder. That is to say, if the use or possession requires licence, then, the use or possession must be with licence; and if the use or possession specifies a quantity up to which a narcotic drug or psychotropic substance can be used or possessed for medical or scientific purpose, then, the quantity cannot be exceeded. If the manner of possession is not in tune with the requirements of the NDPS Act or the NDPS Rules or the orders made thereunder, then, such use or possession is not protected and is not exempted from being penalized in accordance with the provisions of the law contained in that behalf. 65. To put it a little differently, where any provision, contained in the NDPS Act and the NDPS Rules, imposes any requirement of having licence, permit or authorization for use or possession of a narcotic drug and psychotropic substance even for medical or scientific purpose, then, the use or possession of such narcotic drug or psychotropic substance can be had only in accordance with the terms and conditions of such licence, permit or authorization provided that the licence, permit or authorization exists and the extent of use or possession must not exceed what has been provided by the NDPS Act or the NDPS Rules or the licence, permit, authorization, which may have been issued in this regard. In short, if the use or possession of a narcotic drug or psychotropic substance is not in terms of the prescribed provisions of law, or the quantity, being used or possessed, exceeds the permissible limits of law or the condition of licence, permit or authority, then, the consequential prohibitory provisions, embodied in section 8, cannot be avoided. 66. It can, thus, be seen that the 'exception' to section 8(c) of the NDPS Act has to be read as a whole to ascertain the true meaning of the 'exception'. 66. It can, thus, be seen that the 'exception' to section 8(c) of the NDPS Act has to be read as a whole to ascertain the true meaning of the 'exception'. The relaxation of the substantive provisions under section 8(c) will be applicable only when the narcotic drug or the psychotropic substance is used for medical or scientific purpose as provided under the NDPS Act or the NDPS Rules and if licence is required for such use or possession, then, such use or possession, even if it be for medical or scientific purpose, shall be with such licence. 67. Thus, a bare reading of the 'exception' provided by the first proviso to section 8(c) would make it clear that the proviso has several conditions attached to the use or possession of narcotic drugs or psychotropic substances. The conditions are that though a narcotic drug or psychotropic substance can be used for medical or scientific purpose, the same has to be in the manner and to the extent as may be provided by the NDPS Act or the Rules or the orders made thereunder and, in a given case, where any provision imposes any requirement by way of licence, permit or authorization, then, such use or possession must be in accordance with the terms and conditions of such licence, permit or authorization. A person, therefore, found in possession of a narcotic drug or psychotropic substance, is under an obligation to bring his case within the 'exception' to section 8 (c) of the NDPS Act if he intends to receive the benefit of the 'exception' which section 8(c) contains. Merely, therefore, because of the fact that the substance, found in his possession, can be used, or is used, as a medicine or for scientific purpose, such use or possession, as the case may be, would not ipso facto become justified. 68. Coming to the applicability of the D&C Act, the basic distinction between the D&C Act, on the one hand, and the NDPS Act, on the other, needs to be understood. 69. It may, now, be noted that the NDPS Act does not define drug. As the NDPS Act is in severable from the D&C Act, the definition of drug, as given in the D&C Act, is relevant and material. 69. It may, now, be noted that the NDPS Act does not define drug. As the NDPS Act is in severable from the D&C Act, the definition of drug, as given in the D&C Act, is relevant and material. Section 3(b) defines 'drug' to include all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes. In short, under the D&C Act, 'drug' means all medicines for internal or external use of human beings or animals and all substances, used for diagnosis, treatment or prevention of any disease or disorder in human beings or animals, including preparations applied for repelling insects like mosquitoes. 70. Strictly speaking, the D&C Act deals with the prescribed standards of drugs to be taken care of before its manufacture. According to section 16 of the D&C Act, standard quality means in relation to the standard set out in the Second Schedule to the D&C Act. Thus, manufacturing a drug per se is not an offence under D&C Act if it conforms to the standards set out in Second Schedule to the D&C Act. 71. After manufacture, a narcotic drug or psychotropic substance does not lose its basic character. A manufacturing process, thus, merely refines or transforms the narcotic drug or psychotropic substance into another form of its own character. In fact, the D&C Act deals with medicinal drugs, which may or may not contain narcotic drug or psychotropic substance. This subtle distinction, between the two enactments, needs to be borne in mind. The distinction, though subtle between the two enactments, can be well understood if the questions, posed below, and the answers thereto, are taken note of. (i) Whether a drug under D&C Act, must necessarily contain narcotic drug or psychotropic substance? (ii) If so, whether such narcotic drug or psychotropic substance have to be deregulated for enabling manufacturing of medicinal drugs under the D&C Act? (iii) If yes, then, of what quantity? 72. The questions (ii) and (iii) are regulated by Chapters V and VII of the NDPS Rules. (ii) If so, whether such narcotic drug or psychotropic substance have to be deregulated for enabling manufacturing of medicinal drugs under the D&C Act? (iii) If yes, then, of what quantity? 72. The questions (ii) and (iii) are regulated by Chapters V and VII of the NDPS Rules. Therefore, if the provisions for manufactured drug or psychotropic substance, contained in Chapter V or Chapter VII of the NDPS Rules, restrict the use of such a narcotic drug or psychotropic substance, preparation or manufacture of such a drug, even under the D&C Act, cannot be permitted. Hence, the factor (i) comes into picture depending upon the provisions made in the NDPS Act and the NDPS Rules. Once factor (ii) and (iii) permit manufacture of a drug within the meaning of D&C Act, an offence under the D&C Act will be made out only if the standards set out for the drug are not met with, the reason being that the drug, so manufactured, will be consumed by, or applied on, human beings and animals, the question of their safety becomes the concern of the State. 73. Thus, it is only the NDPS Act, which will regulate the manufacture and sale of narcotic drug and psychotropic substance even in the form of a medicinal drug. Once permission is granted in terms of the provisions contained in the NDPS Act, a licence may be obtained under the D&C Act, because a licence is required for manufacture of drugs, which may contain narcotic drug or psychotropic substance, for sale in India. 74. It may be noted here that under the D&C Act, what is manufactured is a drug and not necessarily a narcotic drug or psychotropic substance. Manufacturing a 'drug', containing narcotic drug or psychotropic substance, on the one hand, and manufacturing a narcotic drug or psychotropic substance itself, on the other, are two different concepts. 75. In the case of Chimanlal Jagjivandas Sheth v. State of Maharashtra, AIR 1963 SC 665 , the Supreme Court, in the context of D&C Act, observed as follows : "The main object of the Act is to prevent sub-standards in drugs, presumably for maintaining high standards of medical treatment. That would certainly be defeated if the necessary concomitants of medical or surgical treatment were allowed to be diluted, the very same evil which the Act intends to eradicate would continue to subsist." 76. That would certainly be defeated if the necessary concomitants of medical or surgical treatment were allowed to be diluted, the very same evil which the Act intends to eradicate would continue to subsist." 76. For the purpose of correctly appreciating the case of Rajinder Gupta (supra), which Mr. Sharma relies upon, the scheme of the lone Schedule to the NDPS Act coupled with the scheme of the three Schedules to the NDPS Rules is required to be clearly understood. 77. Chapter VII of the NDPS Rules begins with a general prohibition. The general prohibition contained in rule 64 applies to only those categories of psychotropic substances, which are included in Schedule I to the NDPS Rules inasmuch as rule 64 reads : "64. General Prohibition. - No person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I." 78. A bare reading of rule 64 makes it transparent that as far as psychotropic substances, specified in Schedule I, are concerned, there is complete prohibition. Consequently, no person, can manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I to the NDPS Rules. 79. Close on the heels of rule 64, rule 65(1) states, "Subject to the provisions of sub-rule (2), the manufacturer of any of the psychotropic substances, other than those specified in Schedule I, shall be in accordance with the conditions of a licence granted under the Drugs and Cosmetics Rules, 1945, framed under the D&C Act, by an authority in charge of Drugs Control in a State appointed by the State Government in this behalf." 80. On reading carefully sub-rule (1) of rule 65, one can notice that rule 65(1) provides that manufacture of a psychotropic substance can be permitted under the licence granted in terms of the D&C Act, but for only those psychotropic substances, which are not included in Schedule I to the NDPS Rules. 81. In the light of the provisions contained in rule 65(1), one can safely conclude that no licence can be granted under the D&C Act and the Rules made thereunder in respect of a psychotropic substance, which stands included in Schedule I to the NDPS Rules. 81. In the light of the provisions contained in rule 65(1), one can safely conclude that no licence can be granted under the D&C Act and the Rules made thereunder in respect of a psychotropic substance, which stands included in Schedule I to the NDPS Rules. However, the second proviso to rule 65 enables the issuance of licence to manufacture psychotropic substance, included in Schedule but in consultation with Narcotics Commissioner, a Regulatory Authority under section 5 of the NDPS Act. Thus, if the Narcotics Authority decides that a licence may be issued under the D&C Act in respect of an item, mentioned in Schedule I to the NDPS Rules, then, the item shall have to be shifted from the Schedule I to either Schedule II or Schedule III to the NDPS Rules, because the basic concept remains that so long as an item remains in Schedule I to the NDPS Rules, the absolute and qualified prohibition, under rule 64, shall continue to apply. 82. Coupled with the above, the proviso to rule 65(1) clearly shows that the relaxation granted for the manufacturing of a psychotropic substance is only in respect of some of the items enlisted in Schedule I, and that too, under a licence to be issued by the Government for the purpose of export only and those psychotropic substances, which can be exported, have been mentioned in Schedule III to the NDPS Rules. 83. To put it a little differently, so long as an item remains in Schedule I, the general ban, imposed by rule 64, will remain and no manufacture, possession, use, transport, consumption, inter-State import or inter-State export is permissible. To enable export of items listed in Schedule I, the particular item will have to be shifted from Schedule I to Schedule III subject, however, to Schedule II. A bare look into Schedule-III to the NDPS Rules would show that Schedule III contains psychotropic substances, which can be manufactured, but such manufacture can be only for the purpose of export and not for internal consumption, use, possession, etc. Schedule II to the NDPS Rules, on other hand, contains a list of those psychotropic substances, whose exports stand prohibited to certain countries. In fact, it is under rule 53A, there is prohibition on export of narcotic drugs and psychotropic substances except to the countries or to the region specified in Schedule II. Schedule II to the NDPS Rules, on other hand, contains a list of those psychotropic substances, whose exports stand prohibited to certain countries. In fact, it is under rule 53A, there is prohibition on export of narcotic drugs and psychotropic substances except to the countries or to the region specified in Schedule II. Thus, in respect of psychotropic substances, enlisted in Schedule II, there is complete prohibition on export and Schedule III contains the list of psychotropic substances, which can be manufactured only for the purpose of export to countries permitted under the NDPS Rules. 84. Let us take, for instance, a psychotropic substance, such as, amfepramone. Amfepramone was earlier a substance listed in Schedule I to the NDPS Rules and, therefore, its manufacture, be it for sale in India or for the purpose of export, was absolutely banned. Over the years, the ban, on the manufacture of amfepramone for the purpose of export, has been lifted and, consequently, one can notice today that amfepramone finds mentioned in Schedule III to the NDPS Rules and not in Schedule I. 85. It may also be noted that 'amfepramone' cannot be exported to Pakistan, Oman and Turkey, because of the ban imposed by rule 53A (Schedule II) subject, however, to sub-rule (2) of rule 53A, which allows export of a narcotic drug or psychotropic substance under special licence. Therefore, if amfepramone were to be exported to any country, other than Pakistan, Oman and Turkey, it had to be removed from Schedule I to the NDPS Rules and shifted to Schedule III thereof. If the Government deletes a substance from Schedule I and takes the substance to Schedule III, the general prohibition for use, in India, will still remain, but the prohibition for export will be lilted. Therefore, the ban will be lifted only for manufacture for the purpose of export. This is precisely what has been done in the case of amfepramone. 86. Alprazolam is an item, which found mention in Schedule I in the year 2002, but now it has been de-regulated and, therefore, does not find mention even in Schedule III to the NDPS Rules. This would mean that its manufacture is permitted for sale in India. 87. This is precisely what has been done in the case of amfepramone. 86. Alprazolam is an item, which found mention in Schedule I in the year 2002, but now it has been de-regulated and, therefore, does not find mention even in Schedule III to the NDPS Rules. This would mean that its manufacture is permitted for sale in India. 87. The other illustration can be of those items, which do not find mention in any of the Schedules, viz., I, II, and III to the NDPS Rules, but have been mentioned in the lone Schedule to the NDPS Act. For a psychotropic substance, which falls in the Schedule to the NDPS Act, but has not been specified in any of the three Schedules to the NDPS Rules, the manufacture and sale of such a psychotropic substance shall still stand prohibited by the NDPS Act except when a licence is obtained for the manufacture and sale thereof, in India, under the Drugs and Cosmetics Rules, 1950 ('D&C Rules'). 88. Psychotropic substances have several medicinal uses; but they are also open to abuse. Hence, manufacture of psychotropic substances has to be regulated and, as a matter of fact, do stand regulated by the NDPS Act. No wonder, therefore, that the lone Schedule to the NDPS Act contains a comprehensive list of psychotropic substances. Thus, psychotropic substances can be categorized as indicated below : Psychotropic substances, whose manufacture is completely prohibited: These substances are listed in Schedule I to the NDPS Rules. Thus, this is a sub-set of the List of psychotropic substances given in the Schedule to the NDPS Act. Psychotropic substances, whose manufacture is permitted but only for export: These substances are listed in Schedule III of the NDPS Rules. This is also a sub-set of the List of psychotropic substances given in the Schedule to the NDPS Act. These are substances, which are not medically used in India, but they are so used in some other countries. Hence, any person, interested in manufacturing these psychotropic substances, can do so but only for export and that too, with a licence issued by appropriate authority. These are substances, which are not medically used in India, but they are so used in some other countries. Hence, any person, interested in manufacturing these psychotropic substances, can do so but only for export and that too, with a licence issued by appropriate authority. Psychotropic substances, which can be manufactured for sale in India or for export: Any psychotropic substance, which is not listed in Schedule I and Schedule III to the NDPS Rules, can be manufactured (for sale in India or for export) after obtaining a licence from the State Drugs Controller under the D&C Act and D&C Rules. Thus, if anyone manufactures a psychotropic substance, covered by the Schedule to the NDPS Act, without a licence from the State Drugs Controller, he, too, shall be liable to punishment under the NDPS Act, for, the NDPS Rules require that a licence shall be obtained in respect of any psychotropic substance, which is mentioned in the Schedule to the NDPS Act. 89. The reason for the abovementioned regulations can be gathered from the Preamble to the NDPS Act, which states that the NDPS Act is for control and regulations of operations relating to narcotic drugs and psychotropic substances for illicit traffic, trade, manufacture and consumption. This would also mean that psychotropic substances may be deregulated for humanitarian use like those mentioned in rule 66(2), (3) and Chapter VII-A of the NDPS Rules, of course, by prescribing the dosage. Reasons for Schedules in the NDPS Act and Schedules in the NDPS Rules So far as the Schedule to the NDPS Act is concerned, it will be seen that it contains parent list of psychotropic substances in keeping with international protocol. This concept needs to be further understood from the perspective of section 8(a), (b), (c), section 9(1)(a), section 9(b), section 76(2)(a) and section 76(2)(e). The NDPS Act is the substantive legislations; whereas the rules are the delegated legislation. It is only for this reason that the Schedule to the NDPS Act contains more numbers of psychotropic substances than those in Schedule I to the NDPS Rules. Depending upon the necessity of control and regulation, the executive has been empowered to frame rules so as to effectively control and regulate the manufacture, possession, use and consumption, etc., of psychotropic substance [section 9(a)(vi) of the NDPS Act]. Depending upon the necessity of control and regulation, the executive has been empowered to frame rules so as to effectively control and regulate the manufacture, possession, use and consumption, etc., of psychotropic substance [section 9(a)(vi) of the NDPS Act]. Therefore, if circumstances permit, the authorities concerned can deregulate an item listed in Schedule I to the NDPS Rules and bring the same under the purview of rule 65(2) or for the purpose of 1st proviso to rule 65 (export). Such an intention becomes abundantly clear, when one takes note of the expression 'permit and regulate' used by section 9(a) of NDPS Act. 90. What, therefore, follows is that for those psychotropic substances for which there is absolute ban, as prescribed in Schedule I, mere possession, unless brought under the exception to Chapter VII-A, would amount to an offence under section 22 of the NDPS Act. At the same time, offence under section 22 will also be made out if the psychotropic substance is a deregulated substance, but has been manufactured and possessed without licence. 91. Now, in respect of those psychotropic substances, which are allowed to be manufactured and consumed, it is necessary that Schedule I to the NDPS Rules exclude those psychotropic substances, which are covered by the Schedule I or III to the NDPS Rules. Again, the manufacture of psychotropic substances, if allowed, has to be by virtue of a licence granted under the D&C Act. If the manufacture is not by virtue of a licence granted under D&C Act, it will still attract the penalty under the NDPS Act, because it is only the NDPS Act, which regulates and deregulates psychotropic substances. In other words, a licence to manufacture a psychotropic substance can be permitted for only those psychotropic substances, which have been deregulated under the NDPS Act. If the manufacture is with a licence, but is substandard, the offence will fall under the D&C Act, because the D&C Act essentially deals in quality control and ensures that drugs are not misbranded, spuriated and/or adulterated. 92. In the ultimate analysis, it will be seen that NDPS Act is, now, the parent enactment in the sense that the NDPS Act controls use, possession, sale, export, import, manufacture, etc., of narcotic drugs and psychotropic substances. 92. In the ultimate analysis, it will be seen that NDPS Act is, now, the parent enactment in the sense that the NDPS Act controls use, possession, sale, export, import, manufacture, etc., of narcotic drugs and psychotropic substances. The decontrolled substances, under the NDPS Act, can be manufactured, sold, consumed, transported, etc., in accordance the licence granted by the D&C Act [see rule 65(1) of the NDPS Rules] and with the quality standards prescribed under the D&C Act. It also needs to be mentioned that manufacturing, in the present context, carries two meanings; firstly, manufacturing without licence and, secondly, manufacturing with licence but not of standard quality. If the psychotropic substance is manufactured without licence, it's a contravention of the NDPS Act. If a drug is manufactured with licence, but misbranded, adulterated or spurious, it will be a contravention of the D&C Act. 93. The case of Rajinder Gupta (supra), referred to by Mr. Sharma, needs to be understood in the light of the attending facts. In the case of Rajinder Gupta (supra), the accusations against accused Rajinder Gupta (supra), was that he had been found in possession of 2,61,000 ampoules of Buprenorphine Hydrochloride Injections. There was accusation of contravention of rules 66 and 67 of the NDPS Rules. The court was satisfied that the accused had a licence to deal in such drugs and, hence, granted bail. The following conclusion arrived at in the decision needs to be noted : "Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule II drug would fall within the rigours of the D&C Act and Rules." 94. From what have been noted above, it become abundantly clear that the court based its conclusion, in Rajinder Gupta (supra), on two basic findings : First, that Buprenorphine Hydrochloride is a Schedule II drug defined in the D&C Rules; Second, that Buprenorphine Hydrochloride is not listed in Schedule I to the NDPS Rules; hence, there is no general prohibition for its manufacture, possession, etc. 95. It will be noticed that the findings were based keeping in mind whether Buprenorphine Hydrochloride is a drug listed in Schedule I to NDPS Rules or not. 95. It will be noticed that the findings were based keeping in mind whether Buprenorphine Hydrochloride is a drug listed in Schedule I to NDPS Rules or not. Thereafter, the only thing, which the court had to look into was whether the accused had valid documents to deal with Buprenorphine Hydrochloride. The Court, on going through the documents, found them to be valid and issued under proper authority. The court, therefore, held that no offence under NDPS Act has been made out. 96. As against the case of Rajinder Gupta (supra), the case, at hand, is one, where there are certain distinguishing features, namely, (i) the substance, which was found in possession of Rajinder Gupta, was a psychotropic substance, whereas in the present case, it is a manufactured drug meaning thereby that it is a narcotic drug, (ii) the discussions and reasoning, in the case of Rajinder Gupta (supra), were undertaken with a specific orientation as to whether the substance, found in the possession of Rajinder Gupta, was covered by Schedule I to the NDPS Rules or not. The court posed questions unto itself and came to the conclusion that Butrenorphine Hydrochloride is a psychotropic substance, but does not fall in Schedule I; hence, its possession is permissible provided a licence is obtained under D&C Rules. The accused Rajinder Gupta had claimed that he was in possession of a licence; hence, it was held that penal provisions contained the NDPS Rules were not attracted. 97. In the present case, it has not been contended that the accused had any valid documents to possess or use the medicines, which were allegedly found in his possession. The quantity of the medicines, as alleged, is also commercial in nature. Thus, on facts, the case of Rajinder Gupta (supra) is quite distinguishable from the one at hand. Otherwise also, Rajinder Gupta (supra) was a case of merely granting or not granting of bail; whereas the case at hand is a case, where the accused are seeking quashing of the entire criminal prosecution. 98. Because of what have been discussed above, I do not find any substance in this criminal petition. This criminal petition, therefore, fails and the same shall accordingly stand dismissed.