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2016 (1) TMI 2 - HC - Indian LawsPetition for release of the petitioner on regular bail during pendency of the trial under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act ) - It is claimed that The petitioner, being doctor by profession, was entitled/competent to possess medicines including Buprenorphine, which has been alleged to be recovered from him - Held that - Buprenorphine Hydrochloride is a Schedule H drug under the D and C Act and Rules and, though it is a psychotropic substance under the Narcotic Drugs And Psychotropic Substances Act, it is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession of sale is not prohibited. As such, there is no contravention of the provisions of the NDPS Rules. Consequently, the offence under Section 8 of the Narcotic Drugs And Psychotropic Substances Act is not made out. Obviously, punishment under Section 22 of the Narcotic Drugs And Psychotropic Substances Act is also not attracted. Accordingly in these circumstances no offence under the Narcotic Drugs And Psychotropic Substances Act is made out, 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 ₹ 50,000/- with one surety of the like amount to the satisfaction of the concerned trial Court.
Issues Involved:
1. False implication and applicability of Section 22 of the NDPS Act. 2. Entitlement of a doctor to possess Buprenorphine under the NDPS Act and related rules. 3. Legal provisions regarding Buprenorphine Hydrochloride as a psychotropic substance. 4. Applicability of NDPS Rules and Drugs and Cosmetics Rules to Buprenorphine Hydrochloride. 5. Conditions for bail under the circumstances. Detailed Analysis: 1. False Implication and Applicability of Section 22 of the NDPS Act: The petitioner argued that he was falsely implicated and no offense under Section 22 of the NDPS Act was made out. He claimed entitlement to possess Buprenorphine as a doctor. The respondent contended that the petitioner, being a doctor, could prescribe but not stock large quantities of medicines. The court had to determine whether Buprenorphine Hydrochloride injections are considered psychotropic substances under the NDPS Act and if merely possessing them attracted punishment. 2. Entitlement of a Doctor to Possess Buprenorphine: The petitioner, a registered medical practitioner, argued that he was exempt from certain provisions of the Drugs and Cosmetics Act and Rules, and there was no legal bar for him to keep Buprenorphine. The court examined whether a criminal case could be registered against a doctor under the NDPS Act for possessing such medicines and whether the provisions of the NDPS Act would apply. 3. Legal Provisions Regarding Buprenorphine Hydrochloride: The court analyzed the definition and classification of Buprenorphine Hydrochloride under the NDPS Act and the Drugs and Cosmetics Rules. Buprenorphine Hydrochloride is listed as a psychotropic substance in the NDPS Act Schedule. The court sought clarifications from a Chemical Examiner, confirming that Buprenorphine Hydrochloride is a salt of Buprenorphine, thus falling under the definition of psychotropic substances. 4. Applicability of NDPS Rules and Drugs and Cosmetics Rules: The court examined Section 8 of the NDPS Act, which prohibits possession of psychotropic substances except for medical purposes as regulated by the NDPS Act or Rules. Buprenorphine Hydrochloride, being a Schedule H drug under the Drugs and Cosmetics Act, is regulated by the D and C Rules. The NDPS Rules' general prohibition (Rule 64) did not apply to Buprenorphine Hydrochloride as it was not listed in Schedule I of the NDPS Rules. Thus, its possession and use were governed by the D and C Act and not prohibited under the NDPS Act. 5. Conditions for Bail: Given that Buprenorphine Hydrochloride was not prohibited under the NDPS Rules and the petitioner was a registered medical practitioner, the court found no contravention of the NDPS Act. Consequently, the petitioner was entitled to bail. The court directed the petitioner to be released on bail on furnishing a personal bond of Rs. 50,000 with one surety of the same amount to the satisfaction of the trial court. Conclusion: The court concluded that Buprenorphine Hydrochloride, while a psychotropic substance under the NDPS Act, was not included in Schedule I of the NDPS Rules. Therefore, its possession by the petitioner, a registered medical practitioner, did not constitute an offense under the NDPS Act. The petitioner was granted bail, highlighting the distinction between the NDPS Act and the Drugs and Cosmetics Act in regulating such substances.
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