9911796707
TMI Blog2013 (7) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... the Proprietorship Firm of Respondent Sajes Sharma. In pursuance of the summons Respondent appeared before the officers of NCB who recorded his statement. Statement made by the Respondent led to filing of chargesheet against him for an offence punishable under Section 22 (c) of the Nacrotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The relevant part of the impugned order which led to the framing of the charge under Section 22 (c) of the Act is extracted hereunder:- "2......Pursuant to the information, summons were issued to Sajesh Sharma who tendered his statement that their firm was mainly selling bunogesic injections, etc. after purchasing it from M/s. Belsons/ Distributor of M/s. Rusan Health Care. A person by the name of Bhardwaj had come at his shop to purchase 25000 to 30000 injections for supply them to a hospital in Patna and paid Rs.15,000/- as advance. After paying the balance amount, he had taken delivery of 30000 injections on invoice from M/s. Belsons on cash payment and sold it to the said person i.e. Shakeel. He was not aware whether Shekeel was having drug licence or not. He stated that whatever consignment had had purchased from M/s. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused persons. Thus, ratio in the earlier said cases would not be applicable to consider whether being in possession of bunogesic injections, which admittedly contained Buprenorphine Hydrochloride, which is a Psychotropic substance as per item No.92 of the Schedule ( under Section 2 (xxiii) ) to the NDPS Act, the Respondent could not have been discharged for the offence punishable under Section 22 (C) of the NDPS Act and the case could not have been remitted to the learned CMM for its trial for violation of the provision of the D&C Act and Rules framed thereunder. 6. Relying on the decisions in Sanjay Kumar Kedia v. Narcotics Control Bureau & Anr. 2008 (1) JCC (Narcotics) 9; and D. Ramkrishnan v. Intelligence Officer, Narcotic Control Bureau, AIR 2009 SC 2404, the learned Special P.P. for the Petitioner urges that the decisions in Rajinder Gupta and Rajesh Kumar Gupta were impliedly overruled by the Supreme Court. It is contended that in D. Ramkrishnan, the Supreme Court held that the provisions of Section 80 of the NDPS Act provided that the provisions of NDPS Act or the Rules made thereunder are in addition to, and not in derogation of the D&C Act or the Rules made thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a medicine and is to be used for a medical purpose then the manner and extent of its manufacture, possession, sale, use shall be as provided in the NDPS Act or NDPS Rules or orders made thereunder. We must remember that buprenorphine hydrochloride I.P. is a Schedule H drug within the meaning of the D&C Act and Rules. Its manufacture, sale etc., is regulated by the D&C Act and D&C Rules. Coming back to the NDPS Act, I find that in the case of a medication, which also happens to be a psychotropic substance within the meaning of the NDPS Act, its "extent and manner" of use etc., would be governed by the other provisions of the NDPS Act or NDPS Rules. A11.Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with "Psychotropic Substances". Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribes the general prohibition. It provides that - "No person shall manufacture, possess, transport, import inter-state, export inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the matter. Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in Schedule I shall be in accordance with the conditions of licence granted under the D&C Rules and D&C Act. In other words, insofar as the psychotropic substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the DandC Act and Rules and not by the NDPS Act or NDPS Rules. Rule 66 relates to possession etc., of psychotropic substances. Sub-Rule (1) thereof provides that no person shall possess "any psychotropic substance" for any of the purposes covered by the D&C Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under the NDPS Rules. 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 does 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Rules. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlordiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder. 23. In view of the fact that all the drugs, Items 1, 2, 3, 4, 6 and 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Rules indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes". 24. The exceptions contained in Section 8 of the 1985 Act must be judged on the touchstone of: (i) whether drug ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
