PUNJAB AND HARYANA HIGH COURT
Before :- R.L. Anand, J.
Criminal Misc. No. 7174-M of 1996. D/d. 31.3.1997
Rakesh Kumar - Petitioner
State of Punjab - Respondent
For the Petitioner :- Mr. V.K. Choudhary, Advocate.
For the Respondent :- Mr. Parminder Singh, AAG, Punjab
A. Narcotic Drugs and Psychotropic Substances Act , Section 22 - Recovery of capsules containing narcotic substances less than prescribed limit of 135 mg. in each capsule - No case under NDPS Act made out - Proceedings quashed. [Paras 1 and 2]
B. Narcotic Drugs and Psychotropic Substances Act , Section 22 - Drugs and Cosmetic Act , Section 4 - Recovery of capsules containing narcotic substances less then prescribed limit of 135 mg. - No offence made out - Accused cannot be prosecuted under NDPS Act on the ground that he was selling allopathic medicines without having licence. [Paras 1 and 2]
ORDERR.L. Anand, J. - This is petition under Section 482 Cr.P.C. filed by Rakesh Kumar petitioner for quashing the FIR No. 33 dated 13.3.1995 registered under section 22 of the Narcotic Drugs and Psychotropic Substances Act in Police Station Tarn Taran, and the allegations against the petitioner are that while running a Kiryana shop, he was allegedly selling medicines such as Dxovon, Proxyvon and Dovinal -N. In pursuance to the search 120 capsules of Dexovon, 32 capsules of Proxyvon and 170 capsules of Dovinal -N were
alleged recovered from a bag which was put by the petitioner on his left shoulder. The grouse of the present petitioner is that he cannot be prosecuted under Section 22 of the NDPS Act as in each of the capsules of the alleged recovery, narcotic substance i.e. Dextropropoxyphene is less than the offending quantity which was been fixed at 135 mg. This grouse of the petitioner appears to be correct in view of the report of the Forensic Science Laboratory where the contents of Dextropropoxyphene has been found as 61 mg. 56 mg, and 28 mg. which is much below than the prescribed limit. In these circumstances it cannot be held that Narcotic drugs/psychotropic substances were allegedly recovered from the petitioner and he cannot be prosecuted under section 22 of the Act.
2. The contention of the State is that the petitioner did not possess licence to sell the allopathic medicines. For this the petitioner cannot be prosecuted under Section 22 of the Act rather his prosecution can be under Drugs and Cosmetics Act. The registration of the case under Section 22 of the NDPS Act and prosecution as such against the petition was totally illegal and unwarranted and in these circumstances, the present petitioner is hereby allowed by quashing the FIR referred to above. The State, however, can if so advised, prosecute the petitioner under the relevant provisions of Drugs and Cosmetics Act.