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2016 DIGILAW 2071 (ALL)

Tribhuwan Singh v. Union of India

2016-05-27

ASHWANI KUMAR SINGH

body2016
JUDGMENT Ashwani Kumar Singh, J. – Since allegations against all the petitioners and legal propositions, which are involved in the above five petitions are identical, they have been heard together and disposed of by this common judgment and order. 2. By means of these petitions filed under Section 482 Cr.P.C., the petitioners have prayed for quashing the respective complaints and consequent proceedings before the court below. 3. Heard learned counsel for the parties and perused the relevant papers filed in support of these petitions. 4. Briefly stated, the complainant is an Intelligence Officer of N.C.B. Zonal unit Varanasi. Secret information was received vide Fax No. NCB/AZU/INV-1/2004 dated 28.10.2004 of NCB, Ahmedabad zonal Unit that M/s Rushan Healthcare (P) Ltd, Mumbai had sold vials of Bunogesic (Buprenorphine) injection to M/s C.N. Trading, Lucknow and they requested to investigate the further distribution of the said injection at these locations as it was suspected that these injections were diverted for use as psychotropic substance. After obtaining instructions from the Superior Officer, the Intelligence Officer of N.C.B., Varanasi started investigation into the matter and called for details from M/s C.N. Trading, Lucknow regarding sale of vials of Bunogesic (Buprenorphine) injections reported to have been received from Rushan Healthcare (P) Ltd., Mumbai. 5. After completion of the investigation, the complainant filed different complaints against different accused persons as follows : - 1. In Crl. Misc. Case No. 922 (482 Cr.P.C.) of 2007, complaint was filed against Tribhuwan Singh son of Madho Singh and M/s Life Care. The allegation in the complaint against both the above named person is that : - (i) That on inquiry, it has been found that purchaser (above-named parties) sold drug in question to non-existent parties and the drug in question could not be traced to have been used for medical purposes. (ii) That from the facts and circumstances, statements, documents and evidence which have come forward in the investigation it is clear that the accused sold, distributed and transported the above-mentioned Bunogesic injections in violation of Rule 67 of N.D.P.S. Rules and drug in question could not be traced to have been used for medical purposes and thus contravened the provisions of Section 8 of N.D.P.S. Act and committed offence punishable under Section 22 of N.D.P.S. Act 1985. (iii) That from the facts and circumstances and evidence it is clear that the accused had violated Rule 67 of N.D.P.S. Rules and committed offence punishable under Section 8/22 N.D.P.S. Act. 2. In Crl. Misc. Case No. 850 (482 Cr.P.C.) of 2007, complaint was filed against petitioners namely Vijai Kumar Agrawal son of Sri Gopi Krishna Agrawal and M/s G.R. Enterprises. The allegation in the complaint against both the above named is that : - (i) That from the facts and circumstances, statements, documents and evidence which have come forward in investigation it is clear that the accused supplied 47 thousand ampules of Bunogesic injection without any consignment note in Form-6 as prescribed in Rule 67 of N.D.P.S. Rules read with N.D.P.S. Act 1985 for transportation of physchotropic substance. The accused has distributed the said drug without any consignment note in Form-6 in clear violation of Rule 67 of N.D.P.S. Rules 1985 and distributed to a non existent party which clearly shows that the drug in question has been diverted to non-medical use. (ii) From the facts, circumstances and evidence it is clear that the accused has violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 N.D.P.S. Act 3. In Crl. Misc. Case No. 851 (482 Cr.P.C.) of 2007, complaint was filed against petitioners namely Vijai Kumar Agrawal son of Sri Gopi Krishna Agrawal and M/s G.R. Enterprises. The allegation in the complaint against both the above named is that : - (i) That from the facts and circumstances, statements, documents and evidence which have come forward in investigation it is clear that the accused supplied thirty thousand ampules of the above-mentioned Bunogesic injection without using any consignment note in Form-6 as prescribed in Rule 67 of NDPS Rules read with N.D.P.S. Act 1985 for transportation of psychotropic substance. The accused has distributed the said drug without any consignment note in Form-6 in clear violation of Rule 67 of NDPS Rules 1985 and distributed to a non existent party which clearly shows that the drug in question has been diverted to nonmedical use. (ii) That from the facts, circumstances and evidence it is clear that the accused has violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act 4. In Crl. Misc. (ii) That from the facts, circumstances and evidence it is clear that the accused has violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act 4. In Crl. Misc. Case No. 787 (482 Cr.P.C.) of 2007, complaint was filed against petitioner namely Vijai Kumar Agrawal son of Sri Gopi Krishna Agrawal. The allegation in the complaint against the above named is that : - (i) That from the facts and circumstances, statements, documents and evidence which have come forward in investigation it is clear that the accused supplied four thousand ampules of the above-mentioned Bunogesic injection without using any consignment note in Form-6 as prescribed in Rule 67 of NDPS Rules read with NDPS Act 1985 for transportation of psychotropic substance. The accused has distributed the said drug without any consignment note in Form-6 in clear violation of Rule 67 of NDPS Rules 1985 and distributed to a non existent party which clearly shows that the drug in question has been diverted to nonmedical use. (ii) That from the facts, circumstances and evidence it is clear that the accused has violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act. 6. Thus, the allegation in all the complaint cases is that the petitioners have violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act. Rule 67 of NDPS Rules reads as under : - “67. Transport of psychotropic substance. - (1) Subject to the provisions of Rule 64, no consignment of psychotropic substance shall be transported, imported inter-state or exported inter-State unless such consignment is accompanied by a consignment note in [Form 6] appended to these Rules and in the manner as provided hereinafter. (2) The consignment note referred in sub-rule(1) shall be prepared in triplicate, and the original and duplicate copies of the said note shall be sent along with the consignment of psychotropic substances to the consignee who shall return the duplicate copy of the note to the consignor for his use after endorsing on the original and duplicate copies the particulars of the receipt of the quantity consigned. (3) The consignor shall make necessary entries on the triplicate copy of the said note with reference to the receipt quantity of the psychotropic substances indicated on that duplicate copy of the note. (3) The consignor shall make necessary entries on the triplicate copy of the said note with reference to the receipt quantity of the psychotropic substances indicated on that duplicate copy of the note. (4) The consignor and consignee shall keep such consignment note for a period of two years and the said note may be inspected at any time by an officer authorised in this behalf by the Central Government. Provided that consignment note in Form 6 shall not apply in cases where the sale of the psychotropics substance is accompanied by a sale bill or invoice or cash memo or any other document duly signed by the consignor or his authorised signatory, which shall include the following information about the consignment : - (a) name, address and licence number of the consignor and the consignee ; (b) description, batch number and quantity ; (c) mode and particulars of transport ; Provided further that such document shall be preserved by consignor and consignee for a period of two years for inspection by the officers referred to in sub-rule(4) above. Explanation. - Where the consignee is a research institution, registered medical practitioner, hospital or dispensary, the requirement of incorporating licence number of consignee shall not be applicable. Section 8 of NDPS Act reads as under : - “8. Prohibition of certain operations. - No person shall- (a)xxxxxxxxxxxxxxxxxxxxxxxx (b)xxxxxxxxxxxxxxxxxxxxxxxx (c)produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation : Section 22 of NDPS Act deals with punishment for contravention in relation to psychotropic substances. 7. This Court, thus, has to examine whether Bunogesic injection, which contains Buprenorphine Hydrochloride is a 'psychotropic substance' within the meaning of Narcotics and Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Rules) ? 8. 7. This Court, thus, has to examine whether Bunogesic injection, which contains Buprenorphine Hydrochloride is a 'psychotropic substance' within the meaning of Narcotics and Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Rules) ? 8. Learned counsel for the petitioners contends that Buprenorphine Hydrochloride I.P. Injections which are the subject matter of the present complaint cases are drugs specified under the Drugs and Cosmetic Act, 1940 and conform to standards indicated in the Indian Pharmacopoeia. According to the learned counsel for the petitioners, since the Buprenorphine Hydrochloride injections involved in the present applications conformed to the specifications mentioned in the Indian Pharmacopoeia and were Schedule 'H' Drugs under the Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945, the same could not be regarded as 'psychotropic substances' at all under the NDPS Act. 9. It is necessary to note what 'psychotropic substance' as defined in Section 2 (xxiii) of the NDPS Act, 1985 means : - “psychotropic substance” means any substance, natural or synthetic or any natural material or any salt or preparation of such substance or materials included in the list of psychotropic substances specified in the Schedule”. 10. The above definition makes it clear that psychotropic substance could be any substance, natural or synthetic, or any natural material or "any salt or preparation" of such substance or materials included in the list of psychotropic substances specified in the Schedule. 11. The provisions with regard to Buprenorphine Hydrochloride in the Drugs and Cosmetics Act, 1940(hereinafter referred to as the “D and C Act”), the Drugs and Cosmetics Rules, 1945(hereinafter referred to as the D and C Rules”), the NDPS Act and the NDPS Rules are to be examined. 12. Rule 65 of the D and C Rules prescribes the general conditions for licences in Forms 20, 20A, 20B, 20F, 20G, 21 and 21B. For example, sub-rule(3)(1) of Rule 65 stipulates that the supply of any drug, other than those specified in Schedule X, on the prescription of a Registered Medical Practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in the register shall be entered on the prescription. Several particulars are required to be entered in the Register such as, serial number of the entry, the date of supply, the name and address of the prescriber etc. Several particulars are required to be entered in the Register such as, serial number of the entry, the date of supply, the name and address of the prescriber etc. In the case of a drug specified in Schedule 'H”, it is also necessary to record theame of the manufacturer of the drug, its batch number and the date of expiry of potency, if any. 13. If Buprenorphine Hydrochloride is 'psychotropic substance' within the meaning of NDPS Act, would that in itself make the possession, sale or transportation of Buprenorphine Hydrochloride injections an offence under the NDPS Act, punishable under Section 22 thereof ? The answer is in the negative. 14. In the context of Section 21 of the NDPS Act which is an analogous provision in respect of 'narcotic drugs', the Supreme Court has held in the case of Sajan Abraham v. State of Kerala reported in (2004) 4 SCC 441 as under : - “7. It is thus apparent that what is made punishable under Section 21 is possession, sale, purchase, etc. of the drugs and preparations mentioned therein in contravention of any provisions of the Act or any rule or order made or condition of licence granted thereunder. Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the limits specified under the rule and subject to such conditions as the rule may prescribe, such a person cannot be held guilty of the offences under Section 21 of the Act if it is shown that his possession is not in contravention of such rule.” 15. This would equally apply to the offences punishable under Section 22 of the NDPS Act in relation to psychotropic substances. This is clear as, in the case of Ouseph v. State of Kerala reported in (2004) 4 SCC 446 , the Supreme Court has observed as under : - “5........... if it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed. ........." 16. In Hussain v. State of Kerala reported in (2000) 8 SCC 139 , the Supreme court has held in para 8 as under : - “8. if it was “psychotropic substance” possession of the same would amount to an offence only if it was in contravention of Section 8 of N.D.P.S. Act. ........." 16. In Hussain v. State of Kerala reported in (2000) 8 SCC 139 , the Supreme court has held in para 8 as under : - “8. if it was “psychotropic substance” possession of the same would amount to an offence only if it was in contravention of Section 8 of N.D.P.S. Act. That Section shows that no person shall possess any 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”. 17. We must remember that Buprenorphine Hydrochloride I.P. is a Schedule Drug within the meaning of the D and C Act and Rules. Its manufacture, sale etc. is regulated by the D and C Act and D and C Rules. 18. The NDPS Rules have been formulated by the Central Government in exercise of the power provided under the NDPS Act. Chapter VII of the NDPS Rules deals with 'psychotropic substances'. Rules 64 to 67 fall under this Chapter VII. Rule 64 Prescribes the general prohibition. It provides that - “No person shall manufacutre, possess, transport, import inter-state, export inter-state, sell purchase, consume or use any of the psychotropic substances specified in Schedule I”. 19. 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 : - (1) Narcotic Drugs and (II) Psychotropic Substances. This Court is concerned with psychotropic substances. There is a list of specific psychotropic substances. It is significant to note that neither Buprenorphine Hydrochloride nor Bunogesic 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. 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 The prohibition contained in Rule 64 of the NDPS 20. Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. 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 The prohibition contained in Rule 64 of the NDPS 20. 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. 21. Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in Schedule I shall be in accordance with the conditions of license granted under the D and C Rules and D and C Act. In other words, insofar as the psychotropic substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the D and C Act and Rules and not by the NDPS Act or NDPS Rules. 22. 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 and C Rules, unless he is lawfully authorised to possess such substance for any of the said purpose under the NDPS Rules. The expression “any psychotropic substance” obviously has reference to those listed in Schedule I 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 I 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 I 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 interstate or export inter-state of those psychotropic substances which are included in Schedule I 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 interstate or export inter-state of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule I to the NDPS Rule. 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 H drug would fall within the rigours of the D and C Act and Rules. 23. It is submitted by learned counsel for the petitioners that the petitioners were bona fide licence holders under the Drugs and Cosmetics Act and Rules, as such, they were authorised to sell and deal in Schedule “H” medicines which includes Buprenorphine Hydrochloride IP injections. It is contended that there is no iota of evidence to support the apprehension of the complainant that the drugs were being sold by petitioners to any individual for non medical use. Mere allegations and apprehension would not prove the guilt of the petitioners. It is further submitted that allegation that the vials of Bunogesic injections were sold to non existing parties is also incorrect. It may be made clear that the drug in question was sold to existing parties who had licence except for in one case the other parties had shown licence but on further enquiry it was found to be forged. Learned counsel submits that under the valid licence there is no rule that the petitioner had to first ascertain whether the licence is genuine or not. No offence is made out if the other party is producing fake documents. 24. The allegation against the petitioners is that they contravened Rules 67 of the NDPS Rules and thereby contravened Section 8 of NDPS Act and as a result thereof, became liable for punishment under Section 22 of the NDPS Act. As discussed above, Buprenorphine Hydrocloride is a Schedule H drug under the D and C Act and Rules. It is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession or sale is not prohibited. As discussed above, Buprenorphine Hydrocloride is a Schedule H drug under the D and C Act and Rules. It is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession or sale is not prohibited. Consequently, the offence under Section 8 of the NDPS Act is not made out. Therefore, punishment under Section 8/22 NDPS Act is also not attracted. 25. Ms. Shikha Sinha, learned counsel for N.C.B. has vehemently submitted that the Buprenorphine Hydrochloride is a psychotropic substance within the meaning of NDPS Act. There is a little difference if it is happened to be a Schedule 'H' drug. 26. Learned counsel for N.C.B. has placed reliance on the judgment of Apex Court in the case of Mohd. Sahbuddin and another v. State of Assam reported in (2012) 13 SCC 491. The facts of the case are distinguishable in so much as Mohd. Sahabuddin and others were found in possession of drugs, including phensedyl, which were concealed with household articles in a truck. The driver of the vehicle did not have any valid document in support of carrying the said contraband substances. 27. Learned counsel for N.C.B. has also placed reliance on the judgment of Apex Court in the case of Union of India and another v. Sanjeev V. Despande. The facts of the case are also distinguishable from the facts of the present case. 28. In the present case, the legal proposition has been dealt with the drug in question, which is covered in the ambit of D and C Act and Rules and for the same the petitioner had obtained valid licence from the authorities. Any violation of Rules of licence would result in offence committed under D and C Act. 29. Considering the above noted discussions, relevant provision of NDPS Act and Rules, D and C Act and Rules and judgments of the Hon'ble Supreme Court, this Court is of the view that in the case in hand if at all an offence has been committed it would be under D and C Act and no offence under Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules is made out. Accordingly, the petitions are allowed. 30. The proceedings in Crime Case no. Accordingly, the petitions are allowed. 30. The proceedings in Crime Case no. 288 of 2006, Union of India v. Tribhuwan Singh and another pending in the court of Special Judge (E.C. Act), Lucknow under Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules and order dated 9.1.2007 passed by the court below in regard to the petitioners only, are hereby quashed. 31. The proceedings in Crime Case no. 291 of 2006, Union of India v. Vijai Kumar Agrawal and another pending in the court of Special Judge (E.C. Act), Lucknow under Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in regard to the petitioners only, are hereby quashed. 32. The proceedings in crime case no. 290 of 2006, Union of India v. Vijai Kumar Agrawal and another pending in the court of Special Judge (E.C. Act), Lucknow under Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in regard to the petitioners only, are hereby quashed. 33. The proceedings in crime case no. 292 of 2006, Union of India v. V.K. Agrawal and another pending in the court of Special Judge (E.C. Act), Lucknow under Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in regard to the petitioners only, are hereby quashed. Petitions Allowed.