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2013 (7) TMI 839 - HC - CustomsInherent power of court u/s 482 Cr.PC - Petitioner Narcotics Control Bureau (NCB) invokes inherent powers of the Court u/s 482 of the CrPC for setting aside of the order passed by the learned Special Judge-NDPS - the court in that order altered the charge and remit the case to the Court for trial for the offences under the Drugs and Cosmetics Act, 1940 (D&C Act) the same order was in question Held that - The contention of the department was devoid of any substance - Section 8 (c) of the NDPS Act prohibits manufacture, possession, transport, inter-state export and import of Narcotic Drugs and Psychotropic Substances except for medicinal or scientific purposes - Section 24 makes the export or obtaining of any Narcotic Drugs and Psychotropic Substances in contravention of section 12 of the NDPS Act to be punishable. Anybody dealing with a psychotropic substance for supplying to any person outside India even if it does not find mention in the NDPS Rules will be punished under the NDPS Act court relied upon State of Uttaranchal v. Rajesh Kumar Gupta (2006 (11) TMI 542 - SUPREME COURT) the exception as provided under Section 8 for use of the psychotropic substance as mentioned in the Schedule (under Section 2(xxiii)) of the NDPS Act for medicinal purposes would not be applicable in case of trade or supply of the psychotropic substance outside India petition decided against the department.
Issues Involved:
1. Invocation of inherent powers under Section 482 of the Code of Criminal Procedure, 1973. 2. Determination of whether the possession and sale of Buprenorphine Hydrochloride (a psychotropic substance) fall under the NDPS Act or the Drugs and Cosmetics Act. 3. Applicability of previous judgments in determining the legal framework for Buprenorphine Hydrochloride. 4. The legal distinction between domestic and international trade of psychotropic substances under the NDPS Act. Detailed Analysis: Invocation of Inherent Powers under Section 482 of the Code of Criminal Procedure, 1973: The Narcotics Control Bureau (NCB) petitioned the High Court to invoke its inherent powers under Section 482 of the Code of Criminal Procedure, 1973, to set aside the order dated 17.04.2010 by the Special Judge-NDPS. The Special Judge had allowed the Respondent's prayer for altering the charge and remitting the case for trial under the Drugs and Cosmetics Act, 1940 (D&C Act). Determination of Legal Framework for Buprenorphine Hydrochloride: The case involved the possession and sale of Buprenorphine Hydrochloride, a Schedule 'H' drug under the D&C Act and a psychotropic substance under the NDPS Act. The Special Judge opined that since Buprenorphine Hydrochloride was not included in Schedule I of the NDPS Rules, its possession and sale were not completely prohibited under the NDPS Act. Hence, the case was remitted to the Metropolitan Magistrate for trial under the D&C Act. Applicability of Previous Judgments: The Special Judge relied on the judgment in Rajinder Gupta v. State, which was also referenced by the Supreme Court in State of Uttaranchal v. Rajesh Kumar Gupta. These judgments held that Buprenorphine Hydrochloride, while a psychotropic substance under the NDPS Act, was not included in Schedule I of the NDPS Rules. Therefore, its possession and sale were regulated by the D&C Act and not prohibited under the NDPS Act. The Special Public Prosecutor for the Petitioner argued that the decisions in Rajinder Gupta and Rajesh Kumar Gupta were rendered in the context of bail applications and were impliedly overruled by the Supreme Court in Sanjay Kumar Kedia v. Narcotics Control Bureau and D. Ramkrishnan v. Intelligence Officer, Narcotic Control Bureau. However, the court found that these cases dealt with the international trade of psychotropic substances, which is separately punishable under Sections 23 and 24 of the NDPS Act, irrespective of their inclusion in Schedule I of the NDPS Rules. Legal Distinction Between Domestic and International Trade: The court clarified that Section 8(c) of the NDPS Act prohibits the manufacture, possession, transport, inter-state export, and import of psychotropic substances except for medicinal or scientific purposes. However, Sections 23 and 24 specifically address the international trade of such substances, making it punishable regardless of their medicinal use. The court distinguished the present case from Sanjay Kumar Kedia and D. Ramkrishnan, which involved international trade and were thus not applicable to the domestic context of the present case. Conclusion: The court concluded that the reasoning in Rajinder Gupta applies to the current case, even when determining guilt under Section 22 of the NDPS Act. The court found support from another judgment in DRI v. Raj Kumar Arora, where it was held that possession of Buprenorphine Hydrochloride does not constitute an offense under Section 22 of the NDPS Act. Consequently, the petition by the NCB was dismissed, and the case was remitted to the Metropolitan Magistrate for trial under the D&C Act. Pending applications were also disposed of.
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