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2014 DIGILAW 334 (CHH)

Dilip Kumar Virvani v. State of Chhattisgarh

2014-09-05

SANJAY K.AGRAWAL

body2014
ORDER 1. Impugning the legality, validity and correctness of the impugned order dated 26-7-2006 passed by Special Judge constituted under the Narcotic Drugs and Psychotropic Substances Act, Bilaspur in Special Case No. 35/2005, the instant criminal revision has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 ('the Cri. P.C.' for brevity), by which, charges under Sections 22(b) and 22(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for brevity) has been framed against the applicants respectively. In order to judge the controversy, the following facts are essential to be noted:-- 1.1 That the applicant No. 1 Dilip Kumar Virvani was found in possession of 2000 ampoules of Buprenorphine injections containing psychotropic substance named as Buprenorphine and applicant No. 2 Sunil Kumar Sitlani was found in possession of 350 ampoules of Buprenorphine injections containing psychotropic substance named as Buprenorphine. The total quantity of narcotic drugs was worked out at 1.200 grams and 0.21 grams respectively. The First Information Report was lodged against them on 3-10-2005 and the Superintendent of Police, Bilaspur by his letter dated 17-11-2005 sent it to the Director, Forensic Science Laboratory, Tikrapara Raipur for chemical analysis of seized articles. Thereafter, the Station House Officer, Police Station Tarbahar, District Bilaspur by his letter dated 16-2-2006 sent seized packets of Buprenorphine injections to M/s. Choksi Laboratories Limited, 6/3 Manoramaganj, Indore, M.P. for its chemical analysis. The sample was tested and certificate of analysis has been received from the said Laboratory, which shows presence of psychotropic substance "Buprenorphine Hydrochloride". 1.2 Thereafter, the charge-sheet was filed against them for commission of offence under Sections 22(b) and 22(a) of the NDPS Act respectively. 1.3 The learned Special Judge by its order dated 26-7-2006 framed charges against the applicants for commission of aforesaid offences. The said order has been challenged by the applicants in the instant revision. 2. Appearing for the applicants Mr. Akhil Mishra and Mr. Anand Shukla, learned counsel would submit that Buprenorphine injection seized from the applicants was a Schedule-H drug under the Drugs and Cosmetics Act, 1940 and though, it was a psychotropic substance under the NDPS Act but since it was not included in Schedule-I to the Narcotic Drugs and Psychotropic Substances Rules, 1985 ('NDPS Rules' for brevity), therefore, its possession and sale is not completely prohibited under the NDPS Act. They would further submit that the applicant No. 1 is a bona fide citizen and a proprietor of M/s. Jeewan Jyoti Medical Agencies and is a lawful holder of the licence for a medical shop to sell, stock or exhibit (or offer) for sale or distribute. They placed strong reliance in case of Rajinder Gupta vs. State, 2006 Cri LJ 674, which was relied upon by the Supreme Court in State of Uttaranchal vs. Rajesh Kumar Gupta, (2007) 1 SCC 355 : 2006 AIR SCW 5666. 3. Appearing for the non-applicant/State, Mr. Prasun Bhaduri, Govt. Advocate opposing the submissions would submit that the seized drug i.e. Buprenorphine Hydrochloride is a 'psychotropic substance' within meaning of NDPS Act and looking to the quantity recovered from the possession of the applicants, it would not be justified to interfere at the stage of framing charge, as the applicants did not have any kind of permit/authorization to possess the psychotropic substance in a huge quantity. He would further submit that after filing of the charge-sheet, prosecution has already examined eight witnesses and the statement of accused under Section 313 of the Cri. P.C. has also been recorded. The present applicants have also examined three witnesses in their defence and as such in an advanced stage, it would not be proper to interfere with the order framing charge. 4. I have heard learned counsel appearing for the parties and considered their rival submissions made herein and perused the record with utmost circumspection. 5. In order to consider the legal submission of the parties, it would be better to notice the chemical composition of the Buprenorphine injection recovered from the possession of the applicants. 6. The Choksi Laboratories Ltd. Indore, M.P. after chemical analysis of Buprenorphine injection, issued Certificate of Analysis, which states as under:-- 7. The said drug "Buprenorphine Hydrochloride" is a prescription drug. The aforesaid drug is a listed prescription drug in Schedule-I of the Drugs and Cosmetics Rules. It is also not in dispute that the Buprenorphine Hydrochloride is not mentioned by name in the schedule of NDPS Act. It is only "Buprenorphine" which has been included as a psychotropic substance but Buprenorphine Hydrochloride has been held and said to be a salt of Buprenorphine and as such, psychotropic substance within the meaning of Section 2(ixia) of the NDPS Act. It is only "Buprenorphine" which has been included as a psychotropic substance but Buprenorphine Hydrochloride has been held and said to be a salt of Buprenorphine and as such, psychotropic substance within the meaning of Section 2(ixia) of the NDPS Act. It is also the case of applicants that "Buprenorphine Hydrochloride" is a psychotropic substance within the meaning of NDPS Act and, learned counsel for applicants does not dispute that fact. 8. The singular submission of applicants are that, though "Buprenorphine Hydrochloride" is a "psychotropic substance" within the meaning of NDPS Act, but that would not in itself make the possession, sale or transportation of "Buprenorphine Hydrochloride" an offence under the NDPS Act, punishable under Section 22 thereof, because Schedule-I to the NDPS Rules does not include the Buprenorphine Hydrochloride, therefore, Section 8 of the NDPS Act would have no application in light of decision rendered by Delhi High Court in case of Rajinder Gupta (supra), which was relied upon by the Supreme Court in Rajesh Kumar Gupta (supra). 9. In Rajinder Gupta (supra), the Delhi High Court posed the following two questions for consideration:-- (i) Whether Buprenorphine Hydrochloride is a "psychotropic substance" within the meaning of the NDPS Act. (ii) If yes, whether Buprenorphine Hydrochloride is a "psychotropic substance" to which Chapter VII of the NDPS Rules apply? To what effect? 10. After referring to the opinion of the Chemical Examiner and Joint Director, Central Revenue Control Laboratory, Hill side Road, Pusa, New Delhi, the Delhi High Court opined that the "Buprenorphine Hydrochloride" would be a "psychotropic substance" under the NDPS Act. While dealing with the second question, the Delhi High Court went into the scheme of NDPS Act and the NDPS Rules and held that the Section 8(c) prohibits production, manufacture, possess, sale, etc. of any narcotic drug and psychotropic substance except for medicinal or scientific purposes. "Since Buprenorphine" was not a prohibited psychotropic substance it being absent in Schedule-I to the NDPS Rules, its possession by itself cannot be considered to be an offence under Section 22 of the NDPS Act simply because it is included as a psychotropic substance in Schedule (under Section 2(xxiii)) to the NDPS Act. "Since Buprenorphine" was not a prohibited psychotropic substance it being absent in Schedule-I to the NDPS Rules, its possession by itself cannot be considered to be an offence under Section 22 of the NDPS Act simply because it is included as a psychotropic substance in Schedule (under Section 2(xxiii)) to the NDPS Act. The Delhi High Court held that as per Rule 65(1) manufacture of any psychotropic substance other than those specified in Schedule-I of the NDPS Rules shall be in accordance with the condition of licence granted under the D & C Rules and D & C Act. The relevant observations in Rajinder Gupta (supra) are extracted as under:-- "Section 8(c), which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale, use etc., of any psychotropic substance "except for medical or scientific purposes and in the manner and to the extent" provided by the provisions of the NDPS Act or NDPS Rules or orders made thereunder. This means that while there is a general prohibition against the manufacture, possession, sale, use etc., of a psychotropic substance, if the same is a medicine and is to be used for a medical purpose then the manner and extent of its manufacture, possession, sale, use shall be as provided in the NDPS Act or NDPS Rules or orders made thereunder. We must remember that Buprenorphine Hydrochloride I.P. is a Schedule-H drug within the meaning of the D & C Act and Rules. Its manufacture, sale etc., is regulated by the D & C Act and D & C Rules. Coming back to the NDPS Act, I find that in the case of a medication, which also happens to be a psychotropic substance within the meaning of the NDPS Act, its "extent and manner" of use etc., would be governed by the other provisions of the NDPS Act or NDPS Rules. All Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with "Psychotropic Substances". Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribed the general prohibition. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with "Psychotropic Substances". Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribed the general prohibition. It provides that--"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." It is to be noted that this "Schedule-I" is different to the Schedule to the NDPS Act. This Schedule-I is appended to the NDPS Rules and is in two parts--(I) Narcotic Drugs and (II) Psychotropic Substances. We are concerned with psychotropic substances. There is a list of 33 specific psychotropic substances with entry No. 34 being "Salts and preparations of above". It is significant to note that neither Buprenorphine Hydrochloride nor buprenorphine find mention in this list. This clearly means that Buprenorphine Hydrochloride is not included in Schedule-I to the NDPS Rules and therefore the general prohibition contained in Rule 64 of the NDPS Rules does not apply to it. 2. Consequently, Rules 65 to 67, which also have reference to psychotropic substances specified in the said Schedule-I, would also not be applicable in respect of Buprenorphine Hydrochloride. In this connection, it is pertinent to point out that there are several psychotropic substances which find place both in the schedule to the NDPS Act and in Schedule-I to the NDPS Rules. For example: Methaqualone, Delorazepam, Ketazolam, Loprzolam, Pipradrol, Tetrazepam. At the same time, there are others like Buprenorphine, Amphetamine, Bromazepam, Lorazepam, Phenobarbital and Pemoline which, though specified in the Schedule to the NDPS Act, do not find mention in Schedule-I to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in Schedule-I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule-I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule-I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule-I to the NDPS Rules. It may be mentioned here that the Supreme Court, in the afore-mentioned decisions, was not called upon to examine this aspect of the matter, namely, whether Rule 66 of the NDPS Rules applied to all psychotropic substances or only those specified in Schedule-I to the NDPS Rules. It is, therefore, open to this Court to consider and decide this aspect of the matter. Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in Schedule--shall be in accordance with the conditions of licence granted under the D & C Rules and D & C Act. In other words, insofar as the psychotropic substances not mentioned in Schedule - to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the D & C Act and Rules and not by the NDPS Act or NDPS Rules. Rule 66 relates to possession etc., of psychotropic substances, (sub-rule 1) thereof provides that no person shall possess "any psychotropic substance" for any of the purposes covered by the D & C Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under the NDPS Rules. The expression "any psychotropic substance" obviously has reference to those listed in Schedule - to the NDPS Rules. Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance does not find mention in Schedule - to the NDPS Rules, the prohibition qua possession contained in Rule 64 does not apply. That being the case, in respect of such a psychotropic substance, Rule 66 would also not apply as it has reference to only those psychotropic substances which are included in Schedule - to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule - to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule - to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule - to the NDPS Rule. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule-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." (Emphasis supplied) 11. In Rajesh Kumar Gupta (supra) the respondent was found in possession of large quantity of drugs which were included in Schedule of the D & C Rules as also in entry 36 and 69 of the Schedule to the NDPS Act. The Supreme Court held that since the drugs were mentioned in Schedule-D & H of the D & C Rules and were being used for medicinal purposes, the respondent would not be guilty of violation of Section 8 of the NDPS Act. Paragraph-19 of the report are extracted as under:-- "19. It has not been brought to our notice that the 1985 Act provides for the manner and extent of possession of the contraband. The Rules framed under Section 9 of the 1985 Act read with Section76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import export and transshipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I appended thereto is prohibited. Such prohibitions, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general provisions contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule-I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of sale, purchase, consumption or use of the psychotropic substances specified in Schedule-I, Rule 65 prohibits manufacture of psychotropic substances; whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67-A provides for special provisions for medical and scientific purposes." 12. The correctness of the decision rendered in Rajesh Kumar Gupta (supra), was doubted and the matter was referred to the larger Bench. Very recently, the larger Bench of the Supreme Court in case of Union of India and Another vs. Sanjeev V. Deshpande, JT 2014 (9) SC 230 : AIR 2014 SC 3625 , considered the said question "that whether the absence of mention of a particular psychotropic substance in Schedule-I to the Rules excludes the application of Section 8 of the NDPS Act, notwithstanding the fact that such a drug is included in the Schedule to NDPS Act." 13. Their Lordships of Supreme Court while answering the question so posed has categorically held that prohibition contained in Section 8 of the NDPS Act is attracted in respect of psychotropic substance mentioned in Schedule-I but not in Schedule-I of Rules and succinctly held as under:-- "27. Therefore, we are of the opinion that the conclusion reached by the various High Courts that prohibition contained under Section 8 is not attracted in respect to all those psychotropic substances which find a mention in the Schedule to the Act but not in Schedule I to the Rules framed under the Act is untenable." 14. Their Lordships in later part of judgment held that Rules cannot make stipulation and contrary to NDPS Act by observing as under:-- "29. We are unable to agree with the conclusion (reached in Rajesh Kumar Gupta's case) that the prohibition contained in Rule 63 of the 1985 Rules is applicable only to those narcotic drugs and psychotropic substances which are mentioned in Schedule-I to the Rules and not to the psychotropic substances enumerated in the Schedule to the Act. We are unable to agree with the conclusion (reached in Rajesh Kumar Gupta's case) that the prohibition contained in Rule 63 of the 1985 Rules is applicable only to those narcotic drugs and psychotropic substances which are mentioned in Schedule-I to the Rules and not to the psychotropic substances enumerated in the Schedule to the Act. Such a conclusion was reached in Rajesh Kumar Gupta's case on the understanding that Rule 53 (prohibiting the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I to the Rules) is the source of the authority for such prohibition. Such a conclusion was drawn from the fact that the other Rules contained in the Chapter permit import into and export out of India of certain narcotic drugs and psychotropic substances other than those specified in Schedule-I to the Rules. Unfortunately, the learned Judges in reaching such a conclusion ignored the mandate of Section 8(c) which inter alia prohibits in absolute terms import into and export out of India of any narcotic drug and psychotropic substance. Rules framed under the Act cannot be understood to create rights and obligations contrary to those contained in the parent Act. 30. On examination of the scheme of Rules, 53 to 63 which appear in Chapter VI, we are of the opinion that Rule 53 reiterates an aspect of the larger prohibition contained in Section 8(c) i.e., the prohibition of import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I to the Rules. The proviso thereto however enables the import into and export out of India on the basis of an import certificate or export authorization issued under the provisions of Chapter VI. The subsequent Rules stipulate the conditions subject to which and the procedure to be followed by which some of the narcotic drugs and psychotropic substances could be imported into India or exported out of India. For example, opium is a narcotic drug by definition under Section 2(xiv)of the Act whose export and import is prohibited under Section 8 (C). But Rule 53 authorizes the import of opium by Government opium factory. For example, opium is a narcotic drug by definition under Section 2(xiv)of the Act whose export and import is prohibited under Section 8 (C). But Rule 53 authorizes the import of opium by Government opium factory. The construction such as the one placed on Rule 53 in Rajesh Kumar Gupta's case would in our opinion be wholly against the settled canons of statutory interpretation that the subordinate legislation cannot make stipulation contrary to the parent Act." 15. Their Lordships of Supreme Court finally concluded by holding that Rajesh Kumar Gupta (supra) is wrongly decided by observing as under:-- "34. On the above analysis of the provisions of Chapters VI and VII of the 1985 Rules, we are of the opinion, both these Chapters contain Rules permitting and regulating the import and export of narcotic drugs and psychotropic substances other than those specified in the Schedule-I to the 1985 Rules subject to various conditions and procedure stipulated in Chapter VI. Whereas Chapter VII deals exclusively with various other aspects of dealing in psychotropic substances and the conditions subject to which such dealing in is permitted. We are of the opinion that both Rules 53 and 64 are really in the nature of exception to the general scheme of Chapters VI and VII respectively containing a list of narcotic drugs and psychotropic substances which cannot be dealt in any manner notwithstanding the other provisions of these two chapters. We are of the clear opinion that neither Rule 53 nor Rule 64 is a source of authority for prohibiting the dealing in narcotic drugs and psychotropic substances, the source is Section 8. Rajesh Kumar Gupta's case in our view is wrongly decided. 35. In view of our conclusion, the complete analysis of the implications of Section 80 of the Act is not really called for in the instant case It is only required to be stated that essentially the Drugs and Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act." 16. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act." 16. Thus in view of the authoritative pronouncement of the Supreme Court, it is quite vivid that once a drug is "psychotropic substance" within the meaning of NDPS Act, and included in the Schedule of the NDPS Act, then the prohibition contained under Section 8(c) of the NDPS Act will apply in its full force irrespective of the fact that whether said psychotropic substance finds place in Schedule of the NDPS Rules or not, subject to explanation carved out in Section 8(c)of the NDPS Act for medical or scientific purposes, and the decision rendered by the Delhi High Court in Rajinder Gupta (supra) and relied upon by applicants is no longer good law in light of decision of Supreme Court in case of Union of India (supra). 17. Testing the present factual matrix on the anvil of aforesaid enunciation of law, it is transparently clear that Buprenorphine injection containing "Buprenorphine Hydrochloride" is a "psychotropic substance" within-the meaning of section 2(ixia) of the NDPS Act, and duly included in Schedule-I of NDPS Act, and its non inclusion in the Schedule-I of NDPS Rules and inclusion in schedule of Drug and Cosmetic Rules makes no difference and prohibition contained under Section 8of the NDPS Act will apply in its full force and as such, learned Special Judge (NDPS Act) is absolutely justified in framing charges against the applicants for contravention of Section 8 of NDPS Act punishable under Sections 22(b) and 22(a) of the NDPS Act respectively. The criminal revision being sans substratum is dismissed. However, learned special Judge is directed to conclude the trial within four months from the date of receipt of the certified copy of this order. The record of the special Judge be sent back forthwith. No order as to costs.