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2016 DIGILAW 955 (CAL)

Amit Agarwal v. Union of India

2016-12-02

SIDDHARTHA CHATTOPADHYAY

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Siddhartha Chattopadhyay, J.: 1. Challenging the legality and validity of the proceeding bearing No. NDPS case No. 7 of 2011 arose out of NCB Crime No. 9/NCB/Kol/2011 under Section 22 and 29 of the NDPS Act, 1985, the present petitioner has filed this revisional application under Section 401 read with Section 482 of CRPC. 2. Feeling aggrieved with the continuation aforesaid proceeding and dissatisfied with the order of the Learned Special Judge NDPS Court Balurghat, the petitioner has filed this application for quashing of the proceeding of the aforesaid case. 3. According to the petitioner, he has a valid license for running his business of wholesale medicine right from the word go. Inspite of that the NCB official under an erroneous belief had conducted a raid in his shop room and in his absence certain medicines were recovered from his shop room. Thereafter the NCB officials have proceeded against him for violation of drug license and other related laws. According to him, since he is having a valid license to store the medicine and to sell the same to the retailer, the prosecution case does not lie. 4. As against this learned Counsel appearing on behalf of the Narcotic Control Bureau has tried his level best to show the other side of the shield. According to the prosecution (NCB) the present petitioner is liable for punishment under Section 22/29 read with Section 8 of the NDPS Act for having violated the provision under Section 8 of the said Act. It is the specific case of the NCB Officials that they conducted an enquiry regarding diversion of Bupernorphine Injection and for the said purpose they had been to Hili area of Dakhin Dinajpur on 05.08.2011 and somehow managed to trace out the shop premises of M/s. Sri Shyam Pharmaceuticals. The said shop room had no sign board in its name. The said shop room was under lock and key. After getting information regarding the whereabouts of the owner/proprietor of the said shop room. They got this information from the local people. At the relevant point of time, the present petitioner was out of station and his father opened the shop room. The NCB Official by opening the shutter door of the said shop room entered there and the owner of the said premises Mr. Nandalal Jain was also present. They got this information from the local people. At the relevant point of time, the present petitioner was out of station and his father opened the shop room. The NCB Official by opening the shutter door of the said shop room entered there and the owner of the said premises Mr. Nandalal Jain was also present. On opening the said shop room NCB officials found that there were huge quantity of Pentazocine Injections and Bupernorphine Injections which were kept in loose condition. Those injections were kept in black coloured polythene packets. 5. According to the NCB, there is reason to believe that the present petitioner has primarily violated the conditions of the drug license and secondarily, the diversion or trafficking of drugs having components of psychotropic substances could not be ruled out. It is their apprehension that those psychotropic substance, in the garb of medicine, had been sold out to the close proximity of the Indo-Bangladesh Border. The said shop was sealed in the presence of the father of the present petitioner and the owner of the said land. A notice under Section 67 of NDPS Act was issued upon the present petitioner asking him to appear before the NCB Officials but inspite of such repeated notices he did not turn up. Thereafter the NCB Officials again had been to Balurghat and reacted the residential premises of the present petitioner and he was taken for a token search in presence of two independent witnesses. But this time nothing was recovered from his residence. It is specifically alleged by the opposite party(NCB) that the present petitioner could not maintain the condition of the drug license and to satisfy his greed he had sold a huge quantity “Lubigesic” and “Zocin” injections to some habitual traffickers, who in turn, sold the same to their Bangladesi counterparts. The petitioner in their presence disclosed that he occasionally purchased some locally manufactured Bupernorphine Injections from a person named Ram Kishan Agarwal and also from one Ashis Saha and Sanjay Saha. They were also arrested and produced before the Trial Court. The said Sanjay Saha voluntarily handed over a huge quantity of locally printed labels in the name of ‘Lubigesic’ and some six paper boxes each containing ten numbers of empty ampoules having labelled on it. They were also arrested and produced before the Trial Court. The said Sanjay Saha voluntarily handed over a huge quantity of locally printed labels in the name of ‘Lubigesic’ and some six paper boxes each containing ten numbers of empty ampoules having labelled on it. On opening the said shop it was found that thousands of ‘Bupernorphine’ and ‘Pantazocine lactate injections’ were piled in black coloured polythine packets. An inventory was conducted and there was a seizure of ‘24,300 ampoules of Pentazocine lactated injection’, ‘7765 numbers of Bupernorphine Injection’ and ‘62 bottles of Corex syrup’ having codeine phosphet. 6. Ventilating their such grievances NCB Officials wanted to aye that this accused petitioner does not deserve discharged from the proceeding from the case bearing No.7 of 2011, pending before the Additional Session Judge, Third Court, Dakshin Dinajpur, Balurghat. 7. At the time of hearing learned Counsel appearing on behalf of petitioner has challenged the contention of his adversary and submitted that the present petitioner is having a drug license as a wholesaler. He possesses a valid license, which has been established from the evidence of Assistant Drug Controller, who came before this Hon’ble Court in connection with CRM bearing NO.13963 of 2011. On perusal of the said order passed by Division Bench I find that NCB Officials could not substantiate that the separate license under NDPS Act is required for the purpose of carrying one such business. 8. Be that as it may cough syrup of the huge quantity, whose brand name is Corex had been seized and that Corex Cough Syrup contains codeine phosphet which is a psychotropic substance. A wholesaler can certainly run his business of medicine, if he has a license to that effect. But certain medicines are required to be sold in a certain manner. Any medicine, which contains psychotropic substance, must be sold in accordance with law by maintaining proper register. On being asked by this Court the petitioner could not say where his documents are now lying. The petitioner could not say the names of the dealers or manufacturers from whom he had purchased such a huge number of so called medicines which contains psychotropic substance. He also could not say to whom he had sold those drugs and he does not have any document in support of his such possession. This goes to show that primafacie he is liable to be prosecuted. 9. He also could not say to whom he had sold those drugs and he does not have any document in support of his such possession. This goes to show that primafacie he is liable to be prosecuted. 9. It is perhaps needless to say that Court shall exercise its jurisdiction under Section 482 CRPC very sparingly only to prevent ‘abuse of process of any Court’ or otherwise ‘to secure the ends of justice’. The petitioner failed to produce any document before the NCB Officials or before this Court that they maintain specific register for acquiring medicines which contains psychotropic substance from which manufacturer/dealer and to whom they have sold it. Since he is a wholesaler of medicine, he must have a sale tax register or sale tax return in detail from where it can be gathered to whom he had sold it and from whom he got it. 10. Exercise of such inherent power is the exception and not the rule. It is to be kept in mind that inherent power is not to be invoked in respect of any matter covered by specific provisions of any law or if its exercise would infringe any specific provision of any special statute. It is neither possible nor assumable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction because no legislature can predict the problem that may possibly arise. Dealing with this provision the Court of Law is not supposed to make any roving enquiry and to hold a mini- trial particularly when disputed questions of facts arises. The medicines which have been indicated in the foregoing paragraphs are the psychotropic substance and if those were fake or not that can be ascertained only after taking evidence and not at this initial stage. 11. Therefore, the epilogue of this revisional application merits rejection. Learned Trial Court is hereby directed to proceed with the proceeding NCB Crime No. 9/NCB/Kol/2011 read with NDPS case No. 7 of 2011 as expeditiously as possible. 12. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. 13. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.