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Kismat Singh Petitioner v. State Of Punjab
Factual and Procedural Background
The petitioner, proprietor of a chemist shop named M/s Kismat Medical Store, Fatehgarh Sahib, was charged under Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act) based on the recovery of various drugs from his shop on August 5, 2003. The seized drugs included capsules and tablets of several medicines such as Hypnodor-10, Nitraz-10, Nitrazepam Enzed-10, Parvon Spas, Phenotil, Dexavon, Proxyvon, and injections of Norphine. The drugs were sent to the Forensic Science Laboratory for analysis, which identified ingredients including Nitrazepam and Buprenorphene Hydrochloride among others. The petitioner challenged the order dated October 30, 2003, passed by the Special Judge, Fatehgarh Sahib, which ordered him to be charged under Section 22 of the NDPS Act and directed a charge-sheet accordingly.
Legal Issues Presented
- Whether the drugs recovered from the petitioner’s chemist shop, specifically Nitrazepam and Buprenorphene Hydrochloride, fall within the definition of ‘Psychotropic Substance’ under the NDPS Act and its rules.
- Whether possession and sale of these drugs attract the penal provisions of the NDPS Act or are governed by the Drugs and Cosmetics Act, 1940 and its rules.
Arguments of the Parties
Petitioner’s Arguments
- Only two drugs recovered—Nitrazepam and Buprenorphene Hydrochloride—are listed as ‘Psychotropic Substances’ under the NDPS Act, and neither is included in Schedule I of the NDPS Rules.
- Nitrazepam is listed under Schedule H of the Drugs and Cosmetics Rules as a prescription drug and does not attract the provisions of the NDPS Act.
- Buprenorphene Hydrochloride does not fall under the definition of ‘Psychotropic Substance’ as clarified by an official letter from the Narcotics Control Bureau.
- Section 8 of the NDPS Act, which prohibits certain actions related to psychotropic substances, does not apply because the drugs are not listed in Schedule I of the NDPS Rules.
- Rule 65-A of the NDPS Rules permits sale, purchase, consumption, or use of psychotropic substances only in accordance with the Drugs and Cosmetics Rules, implying lawful sale under a valid license is permitted.
State’s Arguments
The opinion does not contain a detailed account of the state’s legal arguments beyond the formal charge under Section 22 of the NDPS Act.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court analyzed the classification of the seized drugs under the NDPS Act and the Drugs and Cosmetics Rules. It noted that only Nitrazepam and Buprenorphene Hydrochloride were identified as psychotropic substances under the NDPS Act, but neither appears in Schedule I of the NDPS Rules, which is essential for the application of Section 8 of the NDPS Act. The court referred to Rule 65-A of the NDPS Rules, which permits the sale and use of psychotropic substances in accordance with the Drugs and Cosmetics Rules, implying that lawful possession and sale under a valid license are permissible. The official letter from the Narcotics Control Bureau clarified that Buprenorphene Hydrochloride does not fall within the definition of a psychotropic substance. The court found no compelling argument from the state to counter these points. Consequently, the court concluded that the provisions of the NDPS Act did not apply to the petitioner’s possession of these drugs, and the charge under Section 22 was not sustainable.
Holding and Implications
The revision petition is accepted and the order charging the petitioner under Section 22 of the NDPS Act is set aside. The petitioner is discharged from the charge under the NDPS Act. However, the prosecution retains the liberty to proceed against the petitioner under the Drugs and Cosmetics Act, 1940 or any other applicable law. This decision directly affects the parties by relieving the petitioner from NDPS Act charges but does not establish any new precedent beyond the facts of this case.
Nawab Singh, J. (Oral):— Challenge is to the order dated October 30th, 2003 passed by Special Judge, Fatehgarh Sahib, whereby, petitioner was ordered to be charged under Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and was charge-sheeted accordingly.
2. The accusation against the petitioner was that he was proprietor of a chemist shop in the name and style M/s Kismat Medical Store, Fatehgarh Sahib. On August 5, 2003 following drugs were recovered from his shop:—
1. 4400 capsules of Hypnodor-10
2. 790 tablets of Nitraz-10
3. 1000 tablets of Nitrazepam Enzed-10
4. 600 capsules of Parvon Spas
5. 400 tablets of Nitrazepam
6. 2000 tablets of Phenotil
7. 50 capsules of Dexavon
8. 88 capsules of Proxyvon
9. 100 injections of Norphine
3. The drugs were sent to the Forensic Science Laboratory, Punjab, Chandigarh for analysis and vide its report dated August 29, 2003 following ingredients were found in the drugs:—
1. Nitrazepam
2. Diphenoxylate
3. Atropine Sulphate
4. Dextropropoxyphene Hydrochloride
5. Dicyclomine Hydrochloride
6. Acetaminophen/Paracetamol
7. Buprenorphene Hydrochloride
4. Learned counsel for the petitioner has urged that as per reply filed by the State, only two drugs, that is, Nitrazepam and Buprenorphene Hydrochloride mentioned at serial No. 64 and 92 of the schedule of the NDPS Act respectively fall under the list of ‘Psychotropic Substance’ and no other drug seized. Both these drugs do not find place in schedule I appended to the NDPS Rules. Nitrazepam drug is mentioned at serial No. 360 in schedule H of the Drugs and Cosmetics Rules under the heading ‘Prescription Drugs’ and as such does not attract the provisions of the NDPS Act.
5. As far as Buprenorphene Hydrochloride is concerned, the same also does not fall under the definition of ‘Psychotropic Substance’ vide letter (Annexure P-4).
6. It is not in dispute that both the medicines (Nitrazepam and Buprenorphene Hydrochloride) are not mentioned in schedule I of the NDPS Rules so, the provisions of Section 8 of the NDPS Act would have no application whatsoever. Section 8 of the NDPS Act contains a prohibitory clause, violation whereof leads to penal offence thereunder. Nitrazepam is a medicine which is mentioned in schedule H of the Drugs and Cosmetics Rules at serial No. 360. By a notification dated July 13, 2010, Rule 65-A was introduced in the NDPS Rules which reads as under:—
“Sale, purchase, consumption or use of psychotropic substances.— No person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945, Rules”
7. A plain reading of the rules says that no person would sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules. Meaning thereby that this medicine could be sold, of course, after having a valid licence under the Drugs & Cosmetics Act, 1940. In view of this, possession of this medicine does not fall under the Act.
8. As far as Buprenorphene Hydrochloride is concerned, vide letter (Annexure P-4) issued by Government of India, Ministry of Finance, Narcotics Control Bureau, New Delhi, it has been clarified that Buprenophine does not fall under the definition of ‘Psychotropic Substance’.
9. To refute the above proposition, no meaningful argument contrary to it has been addressed by the state counsel.
10. For the reasons aforesaid, the revision petition is accepted and the order under challenge is set aside. The petitioner stands discharged. However, the prosecution is at liberty to prosecute the petitioner under the Drugs & Cosmetics Act, 1940 or any other law for the time being in force.
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