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2016 DIGILAW 1627 (PNJ)

Hari Om v. State of Punjab

2016-06-07

FATEH DEEP SINGH

body2016
JUDGMENT 1. The applicant/appellant as per the allegations in brief of the prosecution which has led to the conviction of the appellant under Section 22 of the NDPS, Act 1985 (for short, ‘the Act’) for being found in illegal possession of 270 strips of Spasmo Proxyvon, each strip containing 08 capsules, in all numbering 8160, were sentenced to undergo rigorous imprisonment for 10 years with fine. Learned counsel for the petitioner has sought to highlight that the petitioner is the sole proprietor of M/s Sharma Medicos, who has been issued licence by way of Form-20 which was valid from 16.11.2012 to 15.11.2017 and that the alleged recovery has been made on 15.7.2013 and that the matter as to such a drug which carries constituent Dextropropoxyphene which is at serial No.33 of the Schedule attached with the Act is covered under the NDPS Act and that the Committee in its report has held that violation, if any, is of the Drug and Cosmetic Act, 1940 and not of NDPS Act and it was subsequent vide notification dated 23.3.2014 the drug has been banned by the Government and has placed reliance on [2011(2) Law Herald (P&H) 1542] : 2011 (1) RCR (Criminal) 907 Manjit Singh vs. State of Punjab and 1997 (4) RCR (Criminal) 846 Rajeev Kumar vs. State of Punjab. 2. Keeping in view that as has been admitted by the State counsel that Dextropropoxyphene is found present as per the Forensic Science Laboratory report in the recovered drug and which is as per the report of the Review Committee in the absence of any valid licence in such a case the petitioner can be hauled up under the Drug and Cosmetic Act, 1940 and Rules 1945 and which arguments could not be controverted on behalf of the State and in view of the debatable issue as to the applicability of NDPS Act, 1985 or the Drug and Cosmetic Act, 1940 and the fact that out of the awarded sentence the appellant has undergone incarceration for a period of 07 months and that the appeal is not likely to mature for final hearing and disposal in the near future, no useful purpose will be served by keeping the appellant behind the bars in the present case. Accordingly, without commenting anything on merits of the appeal, sentence awarded to the appellant is suspended during the pendency of appeal and he is ordered to be released on bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate Patiala. 3. The application stands disposed off accordingly.