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2005 (8) TMI 677 - HC - CustomsBuprenorphine Hydrochloride I.P. Injections - psychotropic substance within the meaning of the NDPS Act Schedule Or H Drugs under the Drugs and Cosmetics Act, 1940 - application for grant of bail - HELD THAT - 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 des 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 inter-state 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. Finally, it must be noted that Buprenorphine Hydrochloride I.P. is also a medication and is used as a pain reliever. Recently it is also being used to treat opiate addiction (such as addiction to heroin). It has legitimate uses as an analgesic and for de-addiction. However, it is also capable of misuse being a psychotropic substance. Perhaps because of this reason, it was left out of Schedule I to the NDPS Act but is very much regulated under the D and C Act and Rules. Application for grant of bail - The petitioner is aged about 70 years and is said to be suffering from heart problems. It is further contended that he was taking treatment in Iran and is undergoing such treatment now in Tihar Jail. Only 1091 ampoules of Buprenorphine Hydrochlorideare alleged to have been recovered from the petitioner. Therefore, taking the content of each 2ml ampoule (as per the complaint itself) to be 0.6 mg of Buprenorphine Hydrochloride, the recovery from the petitioner is only of 1091 x 0.6 658.2 mg or 0.6.82 gm of Buprenorphine Hydrochloride which amount is even smaller than the specified small quantity of 1 gm. Moreover, even if all the ampoules are taken to be recovery from the petitioner they would total to 7235 ampoules of 2 ml. each. That would tranlate to a content of only 4.341 gms of Buprenorphine Hydrochloride and not 14.5 kg as erroneously calculated by the learned Additional Sessions Judge in his order dated 7.8.2004 whereby the petitioner's bail application was rejected. Even this quantity is far below the commercial quantity of 20 gm. I have already held that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22, 23, 28 or 29 of the NDPS Act would not be attracted. Furthermore, assuming that an offence under the NDPS Act was, prima facie, made out, the quantity linked to the present petitioner is only 4.341 gm, much lower than the commercial quantity of 20 gm. Accordingly, even in this assumed scenario, the rigours of section 37 of the NDPS Act would not apply. In view of all these circumstances the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of ₹ 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court. As indicated, Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the D and C Act and Rules, the offence under section 8 is not made out. Consequently, punishments u/s 22 or 29 of the NDPS Act would not be attracted. Moreover, the petitioner was only a Customs House Agent who cleared medical consignments on behalf of his clients. Thus, the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of ₹ 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court. It is made clear that all observations made in this order, whether common to all the applications or specific to each of the applicants, are only prima facie in nature. They are only for the purposes of consideration of the aforementioned bail applications and are not to be regarded at the time of trial of the respective cases. All the applications stand disposed of.
Issues Involved:
1. Whether Buprenorphine Hydrochloride is a "psychotropic substance" under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)? 2. If yes, whether Buprenorphine Hydrochloride is subject to the provisions of Chapter VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (NDPS Rules)? Detailed Analysis: Issue 1: Whether Buprenorphine Hydrochloride is a "psychotropic substance" under the NDPS Act? A1. The petitioners argued that Buprenorphine Hydrochloride I.P. Injections are drugs under the Drugs and Cosmetics Act, 1940, and should not be regarded as "psychotropic substances" under the NDPS Act. The respondents contended that Buprenorphine Hydrochloride is a psychotropic substance under the NDPS Act. A2. The court examined whether Buprenorphine Hydrochloride I.P. injections fall under the definition of psychotropic substances under the NDPS Act. If not, no offence under the NDPS Act would be made out, and the petitioners would be entitled to bail. If it is a psychotropic substance, further analysis under Question No. 2 is required. A3. The court analyzed provisions under the Drugs and Cosmetics Act, 1940, and the NDPS Act. Rule 65 of the D and C Rules prescribes conditions for licenses, and Rule 97 deals with labeling of medicines, indicating that a drug can fall under both the D and C Act and the NDPS Act. A4. Buprenorphine Hydrochloride is listed in Schedule 'H' of the D and C Rules as a prescription drug. Rule 97(1)(c) indicates that a drug under Schedule 'H' can also fall under the NDPS Act, requiring specific labeling. A5. Section 2(ixia) of the NDPS Act defines "psychotropic substance" as any substance included in the list specified in the Schedule. The Schedule lists Buprenorphine (Entry No. 92) and its salts and preparations (Entry No. 110). A6. Expert opinions confirmed that Buprenorphine Hydrochloride is a salt of Buprenorphine, making it a psychotropic substance under the NDPS Act. A7. The court referred to various precedents, including the Supreme Court's decision in Hussein v. State of Kerala, confirming that Buprenorphine Tidigesic injections are psychotropic substances. A8. The court concluded that Buprenorphine Hydrochloride is a psychotropic substance under the NDPS Act. Issue 2: Whether Buprenorphine Hydrochloride is subject to the provisions of Chapter VII of the NDPS Rules?A10. The court examined whether the possession, sale, or transportation of Buprenorphine Hydrochloride injections is an offence under the NDPS Act, punishable under section 22. The court referred to the Supreme Court's decision in Sajan Abraham v. State of Kerala, indicating that possession of a psychotropic substance is an offence only if it contravenes the NDPS Act or Rules. A11. Section 8 of the NDPS Act prohibits the manufacture, possession, sale, etc., of psychotropic substances except for medical or scientific purposes as provided by the NDPS Act or Rules. Buprenorphine Hydrochloride I.P. is a Schedule H drug under the D and C Act and Rules. A12. The court analyzed Chapter VII of the NDPS Rules, which deals with psychotropic substances. Rule 64 prohibits the manufacture, possession, etc., of psychotropic substances specified in Schedule I of the NDPS Rules. Buprenorphine Hydrochloride is not included in Schedule I, making Rules 65 to 67 inapplicable to it. A13. The court concluded that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules, and its manufacture, possession, sale, and transport are regulated by the D and C Act and Rules, not the NDPS Act. Individual Bail Applications:Bail Application No. 73/2005: Rajinder Gupta B1. The petitioner, a partner in M/s. A.D.S. Associates, was alleged to have sold 2,61,000 ampoules of Buprenorphine Hydrochloride Injections without maintaining required records. He was arrested on 13.10.2004. B2. The petitioner contended that the injections are Schedule H drugs under the D and C Rules and were sold through proper documentation. The firm holds valid licenses under the D and C Act and Rules. B3. The court found no contravention of the NDPS Rules, making the offence under section 8 of the NDPS Act not applicable. Consequently, punishment under section 22 is not attracted. B4. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 25,000 with one surety of the like amount. Bail Application No. 53/2005: Mohd. Shehber KhanC1. The petitioner was in custody since 13.10.2003 for allegedly conspiring in the sale of Buprenorphine Hydrochloride IP injections. No recovery was made from him. C2. The court found no contravention of the NDPS Rules, making the offence under section 8 of the NDPS Act not applicable. Consequently, punishments under sections 22 or 29 are not attracted. C3. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 25,000 with one surety of the like amount. Bail Application No. 64/2005: Vijay Kumar MittalD1. The petitioner was alleged to have sold Buprenorphine Hydrochloride injections without bill. He was arrested on 14.10.2004 based on disclosure statements of co-accused. D2. The court found no contravention of the NDPS Rules, making the offence under section 8 of the NDPS Act not applicable. Additionally, the petitioner was implicated based on disclosure statements, which are not substantive evidence. D3. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 25,000 with one surety of the like amount. Bail Application No. 2062/2005: Sawinder Singh KohliE1. The petitioner, aged 70, was alleged to have been found with 1091 ampoules of Buprenorphine Hydrochloride Injection IP. He was arrested on 9.5.2004. E2. The court found no contravention of the NDPS Rules, making the offence under section 8 of the NDPS Act not applicable. The quantity linked to the petitioner was below the commercial quantity. E3. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 25,000 with one surety of the like amount. Bail Application No. 115/2005: Amit DawarF1. The petitioner was alleged to be the financer of a consignment of Buprenorphine Hydrochloride injections. He was arrested on 12.10.2003 based on a disclosure statement. F2. The court found no contravention of the NDPS Rules, making the offence under section 8 of the NDPS Act not applicable. The petitioner was implicated based on a disclosure statement, which is not substantive evidence. F3. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 25,000 with one surety of the like amount. Bail Application No. 205/2005: Raj Kumar AroraG1. The petitioner, a licensed Customs Clearing House Agent, was alleged to have contravened Rule 66 of the NDPS Rules. He was arrested on 27/28.9.2003. G2. The court found no contravention of the NDPS Rules, making the offence under section 8 of the NDPS Act not applicable. The petitioner was only a Customs House Agent clearing medical consignments. G3. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 25,000 with one surety of the like amount. H1. The court clarified that all observations made in this order are prima facie in nature and only for the purposes of considering the bail applications. All the applications were disposed of.
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