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Madhya Pradesh High Court · body

2015 DIGILAW 1104 (MP)

Rohit Chadha v. State of Madhya Pradesh

2015-10-15

RAJENDRA MAHAJAN

body2015
ORDER : Rajendra Mahajan, J. The applicant has preferred this criminal revision under Section 397 read with 401 of the Cr.P.C. feeling dissatisfied and aggrieved by the order dated 19.05.2015 passed by the Special Judge, Rewa under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), in Special Case No.3/15, whereby the learned trial judge has framed the charges against the applicant under Sections 8(C) read with 21(B) of the Act, along with other co-accused persons. 2. The facts that are relevant and necessary for adjudication of this revision are given below:- (2.1) On 15.11.2014, K.L. Verma, A.S.I. of the Police Station Churahata, district Rewa got a source information that Rohit Chadha, who is the applicant herein, and Amar Gupta have been illegally transporting in bulk quantity the Rexcof Cough Syrup (for short 'the syrup'), which is used by the drug addicts for intoxication as one of the ingredients of syrup is codeine phosphate a salt of codeine which is the derivative of opium, from Satna to Rewa via Rampur route in a Wagonar car bearing registration No.MP-17-CA-1949. With the help of police force, he intercepted the car and found the applicant and Amar Gupta carrying 480 bottles of syrup, each bottle contains 100 m.l. syrup. They could not produce any licence or permit for transporting the syrup in the huge quantity. Thereupon, he seized all the bottles of the syrup along with the car and lodged an F.I.R., on the basis of which a case is registered against them under Sections 8, 21 and 22 of the Act at Crime No.408/2014. (2.2) On being interrogated by the police, the duo provided inputs as to purchase, transportation and sale of the syrup. On the basis of the inputs, the police found that there is a big racket for sale of the syrup to the drug addicts on premium and in the racket Kuldeep, Pankaj, Guddu @ Raj Kumar, Dinesh, Ratnesh, Rajmani, Jaheed Khan, Sanjeev and Vishal @ Kailash are involved. On various dates, the police seized the syrup from the possession of some of the aforesaid persons in huge quantity. (2.3) Upon completion of investigation, the police charge-sheeted the applicant and the afore stated persons for the offences punishable under Sections 8, 21 and 22 of the Act. On various dates, the police seized the syrup from the possession of some of the aforesaid persons in huge quantity. (2.3) Upon completion of investigation, the police charge-sheeted the applicant and the afore stated persons for the offences punishable under Sections 8, 21 and 22 of the Act. (2.4) Having heard the learned counsel for the parties, and having perused the material on record, the learned trial judge framed the charges against the applicant and other co-accused persons under Section 8(C) read with 21(B) of the Act. Hence, this revision by the applicant. 3. The learned counsel for the applicant has submitted that the police had sent some bottles of the seized syrup as samples for chemical analysis to the ITL Labs Pvt. Ltd., Indore, which is recognized by the Government of Madhya Pradesh. According to the report of aforesaid laboratory, each bottle contains 100 ml. syrup and each 5 ml. syrup contains 9.825 mg. codeine phosphate, whereas a label pasted on each of the bottles claims 10 mgs. Having referred to the circular letters Nos. X-11029/27-D, dated 26.10.2005 and X-11029/09-D, dated 01.03.2009 issued by the Drugs Controller General India to all the State Drugs Controllers and notifications No. G.S.R. 588 (E), dated 30.08.2013, the learned counsel for the applicant submitted that the syrup is not a manufactured drug as per Section 2(11) of the Act as the concentration of codeine phosphate in it is mere 0.20% as compare to permissible limit 2.5%. Hence, the syrup comes under the Schedule H-1 of the Drugs and Cosmetics Rule 1940. Consequently, the acts of purchase, stocking, transportation and sale of the syrup do not attract the provisions of the Act and the Rules 1985 made there under. He further submitted that the syrup is used in therapeutic practice for the treatment of cough. Therefore, no offence is made out against the applicant under Section 8(C) read with 21(B) of the Act. Consequently, the learned trial judge has committed gross errors of law and facts by framing the aforesaid charges against the applicant. Therefore, the impugned order of framing of charge insofar as it relates to the applicant deserves to be quashed. Therefore, no offence is made out against the applicant under Section 8(C) read with 21(B) of the Act. Consequently, the learned trial judge has committed gross errors of law and facts by framing the aforesaid charges against the applicant. Therefore, the impugned order of framing of charge insofar as it relates to the applicant deserves to be quashed. In support of the submissions, he placed reliance upon the decisions rendered in the matters of Amrik Singh v. State of Punjab 1996 Cr.L.J. 3329 (P&H High Court)] Ashok Kumar v. Union of India, (date of order 15.10.2014 passed in Criminal Appeal No.2976/2014 by Hon'ble Shri Justice Ajay Lamba of the Allahabad High Court) and Deep Kumar v. State of Punjab 1997 Cr.L.J. 3104 (P&H High Court)]. 4. Per contra, learned Panel Lawyer for the respondent/State has supported the impugned order of framing of the charge. He argued that the syrup is widely consumed by the drug addicts for getting intoxication and the applicant is found in possession of huge quantity of syrup for which he has not offered any proper explanation let alone valid licence or permit, meaning thereby the seized quantity of syrup was meant for sale to the drug addicts on premium and not for therapeutic benefits. Hence, the learned judge has rightly framed the charges against the applicant. 5. A seminal question that arises for consideration is whether the syrup comes under the category of the manufactured drugs, as defined and made punishable under the Act? 6. Needless to say that no charge can be framed under the Act if the syrup does not fall within the sweep of the manufactured drug as defined in Section 2(11) of the Act or is exempted from the penal provisions of the Act by framing rules or issuing notifications or orders by the concerned Authority. 7. Section 21 of the Act provides for punishment for contravention in relation to the manufactured drugs and preparations. The term manufactured drug has been defined in Section 2(11) of the Act. It means inter alia any narcotic substances or preparation which the Central Government may declare by notification in the official gazette to be a manufactured drug. 8. In exercise of powers conferred by clause (xi) of sub-clause (b) of Section 2 of the Act, the Central Government has issued Notification No.S.O.826(E), dated 14th November, 1985, which declares certain narcotics substances to be manufactured drugs. 8. In exercise of powers conferred by clause (xi) of sub-clause (b) of Section 2 of the Act, the Central Government has issued Notification No.S.O.826(E), dated 14th November, 1985, which declares certain narcotics substances to be manufactured drugs. The relevant Entry No.35 of the notification reads as follows:- "Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice." 9. From the perusal of the aforesaid entry, it is clear that a preparation containing not more than 100 mgs. of codeine phosphate per dosage unit with the concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice is exempted from the application of Section 21 of the Act. 10. According to the afore-stated report of the laboratory, each 5 ml. syrup contains 9.825 mg. codeine phosphate, which is permissible in view of aforesaid entry of the notification. Thus, it is held that the syrup is not a manufactured drug. 11. The learned panel lawyer has justified the prosecution of the applicant on the ground that he had been found in possession of huge quantity of the syrup for which he has not offered any convincing explanation, meaning thereby he wanted to sell the syrup on premium to the drug addicts as they use it for intoxication, whereas the syrup is meant for allopathic treatment of cough. This argument is not tenable for want of any express penal provision in the Act which prescribes the possession of the syrup beyond certain quantity is an offence. This view of mine is fortified by the observations made in the matters of Amrik Singh v. State of Punjab (Supra) and Rajiv Kumar v. State of Punjab and another 1998 Cr.L.J. 1460 P&H High Court]. 12. This view of mine is fortified by the observations made in the matters of Amrik Singh v. State of Punjab (Supra) and Rajiv Kumar v. State of Punjab and another 1998 Cr.L.J. 1460 P&H High Court]. 12. It is pertinent to mention here that in Criminal Revision No. 200/2015 Shiv Kumar Gupta v. State of M.P., decided by the order dated 16.02.2015, the applicant has been charged under Section 8(B) read with 21 of the Act on the ground that he and his associates were found in possession of 32 bottles of Cosome LCD Syrup and 38 bottles of Codex Syrup, which are cough syrups. In this case, Hon'ble Justice C.V. Sirpurkar has discharged the applicant of the aforesaid charge on the ground that 5 ml. dosage of the syrup contains 10 mg. codeine phosphate which is less than permissible limit of 2.5%. Hence, the aforesaid seized syrups are not manufactured drugs as defined under the Act. The view taken by his Lordship further strengthens the view which I have taken in the present case. 13. In the aforesaid premises, even if all the allegations made against the applicant in the charge-sheet are taken to be true on their face value despite that no charges under Section 8 read with 21 of the act is prima facie made out against the applicant. Consequently, this revision is allowed and impugned order of framing of charge insofar as it relates to the applicant is quashed and he is discharged of the charges under Sections 8(C) read with 21(B) of the Act. 14. A copy of this order be sent to the concerned area Drug Inspector with a direction to examine whether the applicant has contravened any provisions of the Drugs and Cosmetics Act, 1940 or the rules framed there under if so then, he is expected to initiate penal action against the applicant in accordance with law. He is further directed to submit the report in this court within three months from the date of receipt of this order. 15. Accordingly, this revision is finally disposed of.