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TMI Blog2016 (1) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... stances 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. - Crl. Misc. No. M-37530 of 2015 - - - Dated:- 17-11-2015 - Daya Chaudhary, J. For the Appellant : Mr. Vikram Chaudhari, Sr. Adv. with Ms. Isha Goyal, Adv. For the Respondent : Mr. Rupam Aggarwal, D.A.G., Punjab JUDGMENT Daya Chaudhary, J. This petition has been filed under Section 439 of the Code of Criminal Procedure for release of the petitioner on regular bail during pendency of the trial in case FIR No.59 dated 03.08.2015 registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as the 'NDPS Act ) at Police Station Banur, District Patiala. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case, whereas, no offence under Section 22 of the NDPS Act is made out against him. The petitioner, being doctor by profession, was entitled/competent to possess medicines including Buprenorphine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d being a doctor, he cannot posses huge quantity of medicines. Heard the arguments of learned counsel for the parties and have also perused the documents available on the file. The FIR, in dispute, was registered against the petitioner on 03.08.2015. As per allegations in the FIR, a secret information was received by ASI Amrik Singh to the effect that the accused was selling intoxicant medicines to the drug addicts after getting the same at lower rate. The accused-petitioner was apprehended and 38 boxes of Nabuse- LS, 30 boxes of Nabuse-0.4 mg, 45 boxes of Buproex-N Lite and 18 boxes of Buproex-I were recovered from him. However, on the basis of said recovery, the FIR, in question was registered against the petitioner. As per case of the prosecution, after considering the total quantity, Buprenorphine hydrochloride found in parcles no.1, 2, 3 and 4 was of commercial quantity. Learned counsel for the petitioner has argued that the provisions of NDPS Act are not applicable and the petitioner has falsely been implicated in the case. The doctor is competent/entitled to stock medicines for doing practice. Now the question for consideration is as to whether a criminal case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'H' drug Warning to be sold by retail on the prescription of a Registered Medical Practitioner only. This is so provided in Rule 97(1)(b) of the D and C Rules. However, if the substance contained in the container is one specified in Schedule 'H' and also comes within the purview of the Narcotic Drugs and Psychotropic Substances Act, it is required to be labelled with the symbol NRx which shall be in red and conspicuously displayed on the left top corner of the label, and be also labelled with the following words :- Schedule H drug Warning To be sold by retail on the prescription of a Registered Medical Practitioner only. This is so provided in Rule 97(1)(c) of the D and C Rules. It may also mention Rule 104 of the said Rules which provides that the letters IP and recognised abbreviations of the pharmacopoeias and official compendia of drug standards prescribed under these rules shall be entered on the label of the drug only for the purpose of indicating that the drug is in accordance with standards set out in the Indian Pharmacopoeia or in any such pharmacopoeia or official compendium of drug standards recognised under the Rules. An examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2003. From a conjoint reading of Section 2(xxiii) and the aforesaid Entry Nos.92 and 110 of the Schedule to the Narcotic Drugs and Psychotropic Substances Act it becomes clear that Buprenorphine Hydrochloride is not mentioned by name in the schedule and that is only Buprenorphine which has been listed as a psychotropic substance. The next question to be answered is whether Buprenorphine Hydrochloride is a `salt or preparation' of Buprenorphine which is a psychotropic substance specified in the Schedule to the Narcotic Drugs And Psychotropic Substances Act. The word `preparation' is defined under the Narcotic Drugs And Psychotropic Substances Act in Section 2(xx) thereof as under :- 2(xx) Preparation in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances: If Buprenorphine Hydrochloride were to be a preparation of Buprenorphine, in terms of the aforesaid definition, it would have to be in dosage form or any solution or mixture, in whatever physical state, containing Buprenorphine. Bupreno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the limits specified under the rule and subject to such conditions as the rule may prescribe, such a person cannot be held guilty of the offence under Section 21 of the Act if it is shown that his possession is not in contravention of such rule. This would apply equally to the offence punishable under section 22 of the NDPS Act in relation to psychotropic substances. This is clear as, in the case of Ouseph v. State of Kerala: : 2004(4) SCC 446 , the Supreme Court had observed that [at page 447]:- If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed. And, in Hussain v. State of Kerala: (2000) 8 SCC 139, the Supreme Court had already held that:- If it was psychotropic substance possession of the same would amount to an offence only if it was in contravention of Section 8 of the Act. That section shows that no person shall possess any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made there under. Therefore, an examination of section 8 of the NDPS Act and the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he D and C Act and D and 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. 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 G 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 inter-state, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. It is to be noted that this Schedule I is different to the Schedule to the NDPS Act. This Schedule I is appended to the NDPS Rules and is in two parts - (I) Narcotic Drugs and (II) Psychotropic Substances. Here it is concerned with psychotropic substances. There is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the D and C 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 and 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 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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