Sushil Kumar Palo, J.:— This petition under Section 397 read with Section 401 of Cr.P.C has been filed assailing the order dated 15.07.2015, passed by Special Judge (NDPS Act), Rewa in Special Case No. 4/2015, whereby charges under Section 8 (c) read with Section 21-B and Section 29(1) of NDPS, Act has been framed against the petitioner.
2. Filtering the unnecessary details, the facts just necessary for the disposal of this petition are that, on the tip of an informer the Police Station Baikunthpur, District Rewa raided the house of accused Rajendra Tripathi. It is alleged that the applicant Kamal Nayan Pandey with the help of co-accused Rajendra Tripathi was selling Rexcof Syrup without any prescription of medical practitioner from the rested residential house, of Rajendra Tripathi. Though the petitioner is the owner of Kamal Medical Store, Baikunthpur, he was using a different premises to sell the questioned syrup. Rajendra Tripathi was apprehended with 15 boxes of Rexcof Syrup, which were seized. Rajendra Tripathi informed the police that the petitioner-Kamal Nayan Pandey has been using the premises on rent.
3. On the label of the bottle of Rexcof Syrup, it is specifically mentioned that ‘not to be sold without the prescription of the registered medical practitioner’. The contents of the syrup includes Chlor-Pheniramine Maleate and Codeine Phosphate.
4. According to the prosecution each carton/box contained 120 bottles, thereby 1,800 bottles of 100 ml each syrup was seized. On the analysis it is found that syrup contained 0.5 ml of opium derivative which is nothing but ‘codeine phosphate’ 9.549 mg to 9.76 mg. Hence, total contents of codeine phosphate is 345 g 7992 mg which is violation of Section 8(c) read with Section 21-B of NDPS Act and punishable under Section 29(1) of NDPS Act.
5. Charge-sheet has been filed before the Special Court (NDPS Act) Rewa in Special Case No. 4/2015, whereby charges have been framed under Section 8(c) read with Section 21-B and Section 29(1) of NDPS Act against the accused persons.
6. The petitioner has assailed the order impugned on the ground that the petitioner is a licencee under the Drugs and Cosmetics Act, 1940. The Central Government by its notification dated 19.11.1985, in exercise of power conferred by Sub-Clause B of Clause 11 of Section 2 of NDPS Act, has declared the ‘codeine phosphate’ and its preparation to be manufactured drug. It is an admitted case of the prosecution that the Rexcof Syrup is a medical drug. The petitioner is having a license for retail sale of medical drug under the Drug and Cosmetics Act, 1940 read with the Drug and Cosmetics Rules 1945. There is no iota of evidence available on record against the petitioner for violating any provisions of the Drug and Cosmetics Act, 1940. The petitioner being licence holder under the Drug and Cosmetics Act, 1940 was selling the drug, therefore, the learned trial Court failed to appreciate the same and framed charges for the offence under provisions of NDPS Act, 1985, presuming that the petitioner is not a licence holder.
7. It is also claimed that, if any offence is made out under Section 27 of Drug and Cosmetics Act, 1940 which is cognizable only on the complaint of the person, specified under Section 32 of the Drug and Cosmetics Act, 1940. If it is presumed that, the petitioner was selling the drug in violation of conditions of the licence. But, under the circumstances no offence is made out under the provisions of NDPS Act. The Court below has failed to appreciate this facts and, therefore, it is prayed to set aside order dated 15.07.2015, passed by the learned Special Judge (NDPS Act).
8. Learned counsel for the petitioner claims that the petitioner has not violated and provisions of NDPS Act. He is not the manufacturer of the drug, nor he has kept it in quantity of contraband. He is having licence to sell the drug and the drug contains ‘Codeine Phosphate’ within permissible limit. It is also submitted that it is not a case of the prosecution, that he has been selling the drug without any prescription of registered medical practitioner, therefore, the order impugned be set aside.
9. Per contra, the learned P.L for respondent/State supports the impugned order of farming charges, and argued that the Rexcof Syrup is being sold at the place other then medical shop and the same was being stored in bulk in a rented premises. The petitioner has not only committed breach of licence, but has also aiding the drug addicts. For the drug addicts consume the drug widely not for any therapeutic benefits. He contented that charges framed is well merited and does not call for any interference.
10. Having gone through the records, in the analysis report there was 5 ml of opium derivative, codeine phosphate was found which is quantified as 9.549 mg to 9.76 mg in each 100 ml bottles of Rexcof Syrup. The total quantity of opium derivative was calculated to 345g 75992mg from 1800 seized bottles of Rexcof Syrup.
11. The Rexcof Syrup has been manufactured by Cipla Company, the contents of each bottle, if taken to be correct, even though as the Rexcof Syrup was being sold as a Schedule H drug, the same cannot be taken as a substance being sold as ‘opium derivative’, because it was being sold as medication drug. There could be a possibility of storing and selling the drug from the place, other then the place for which the licence has been issued or in violation of any condition of the Drugs and Cosmetics laws. The preparation of the drug has been approved by the notification dated 14.11.1985 issued by the Central Government which declares certain narcotics substance to be manufactured drugs. The relevant Entry No. 35 of the notification reads as follow:—
‘Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compunded with one or more other ingredients and containing nor more than 100 mg of the druge 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.’
12. In view of the above, the analyzed report of the bottles seized each 05 ml syrup contains 9.825 mg of codeine phosphate, which is permissible in view of the aforesaid notification.
13. In Cr.R No. 200/2015 (Shiv Kumar Gupta v. State of M.P) decided on 16.02.2015, and Cr.R No. 1621/2015 (Rohit Chadha v. State of M.P) decided on 15.10.2015 following the decisions rendered in the case of Amrik Singh v. State of Punjab reported in 1996 Cr.L.J 3329 (P&H High Court) and Rajiv Kumar v. State of Punjab reported in 1998 Cr.L.J 1460 (P&H High Court) in similar cases, charges framed under Section 8(c) read with Section 21(B) of the NDPS Act, by the Special Court under NDPS Act has been quashed.
14. This Court is not inclined to adopt a different view in this regard. Hence, this petition under Section 397 read with Section 401 of Cr.P.C is allowed and impugned order framing charges, so far it relates to the present petitioner (Kamal Nayan Pandey) is set aside. He is discharged from the offence under Section 8(c) read with Section 21-B and Section 29(1) of NDPS Act.
15. Before parting with the order, it is observed that if the prosecution, so advised, it may proceed against the petitioner for contravention of any provisions of the Drug and Cosmetics Act and Drug and Cosmetics Rules according to law.
16. Accordingly, this petition is disposed of.
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