9911796707
TMI Blog2017 (9) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... , or coca derivative, or opium, or derivative of opium, or Indian hemp and shall include any other substance, capable of causing or producing in human beings dependence, tolerance and withdrawal syndromes and which the Central Government may, by notification in the Official Gazette, declare to be a Narcotic Drug or Narcotic - The plain reading of item No. 86 in the notification states that a Narcotic Drug or Narcotic would include only formulations containing more than 135 mgs of Dextropropoxyphene per dosage unit.n declared as Narcotic Drug or Narcotic - In the present case admittedly the subject formulations contain less than 135 mgs i.e. 65 mgs of Dextropropoxyphene and hence cannot be classified as a Narcotic drug or Narcotic in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first Petitioner. The Petitioners are having a factory, inter alia, at Palghar, Dist. Thane. 3. By a notification dated 12th June 1986, the first Respondent inter alia, declared Dextropropoxyphene to be a 'Narcotic Drug' for the purpose of the M TP Act and entry No.86 was inserted, which read thus :- (+) 4 dimethylamino 1 2 diphenyl 3 methyl 2 butanol propionate, (the international non-proprietary name of which is Detropropoxyphene), and its salts, preparations, admixures, extracts and other substances containing any of these drugs, except preparations for oral use containing not more than 125 miligrams of Dextropropoxyphene base per dosage unit or with a concentration of not more than 2.5 percent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only 65 mgs of Dextropropoxyphene and since the notification issued by the first Respondent provided for formulations having more than 135 mgs of Dextropropoxyphene to be classified as a narcotic substance, the subject formulations would not be covered by the definition of Narcotic under the M TP Act. 6. The Inspector of State Excise department, Vashi on 29th December 1998 visited the factory of the Petitioners and seized the stock of the subject formulations on the ground that the Petitioners had evaded State Excise Duty and that the Superintendent of State Excise Department issued an alleged order dated 16th December 1998 which was not served upon the Petitioners. The Petitioners informed the Superintendent of Central Excise by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the intimation by the State Government. By a further order dated 13th February 2006 passed in a Civil Application taken out by the Petitioner, order dated 2nd February 2005, by which the Petition was dismissed for default was recalled and Rule was issued. 8. An Affidavit has been filed by one Pratapsinh Damodar Golekar, Deputy Commissioner of State Excise (Medicinal and Toilet Preparations), Maharashtra State, Mumbai dated 3rd May 1999 in Reply to the Petition. In the said Affidavit the deponent has relied upon an order of the Government of India dated 13th April 1999, which rejected a revocation application by one DWD Pharmaceuticals Ltd. and placed reliance upon a judgment of the Supreme Court in M/s. Baidyanath Ayurved Bhavan Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said expression under Section 2(h) of the said Act. Once the product of the petitioners discloses Dextroropoxyphene-HCL which in terms contains Dextroropoxyphene base to the extent of 70 mg, which fact has not been disputed by the respondents at any stage of the proceedings, even in the affidavit in reply filed by them, obviously such a product would stand exempted in terms of the said notification and would not be classifiable as narcotic drug or narcotic under the said Act. 10. The said judgment of this Court has considered the notification dated 12th June 1986 and its applicability and as set out above held that the subject formulation of Dextropropoxyphene being less than 135 mg viz. 70 mg would stand exempted in terms of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in the present case the Petitioners had stopped manufacturing of the subject formulations upon the interim order dated 4th May 1999 having been passed. However, the above judgment would squarely apply in the present case and the Petitioners having suffered loss on account of the wrongful seizure of the subject formulations by the Respondents Nos. 3 and 4, and costs should be awarded to them. 12. Mr. Patel, AGP appearing for Respondents Nos. 3 4 and Mr. Jitendra Mishra, learned Advocate appearing for Respondents Nos. 1 2 have supported the action taken by the Respondents. 13. Having heard the arguments, we are of the view that this Petition is squarely covered by the judgment of this Court in USV Ltd. (Supra). The term Narcotic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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