Accused a Registered Pharmacist and having a Licence to stock, and sell the drugs, Opinion of Drug Inspector: Drugs did not contain contraband in excess of permissible limit, Proceedings Quashed

PUNJAB AND HARYANA HIGH COURT

Before :- Harbans Lal, J.
Crl.Misc. No. 50473 M of 2007

Tejpal Singh Versus State of Punjab and others, D/d. 13.2.2008

For the Petitioner :- Mr. Arun Bakshi, Advocate.
For the Respondents :- Mr. Shilesh Gupta, Deputy Advocate General, Punjab.

Narcotic Drugs and Psychotropic Substances Act, Section 22 - Pharmacy Act, 1948, Section 32(2) - Drugs and Cosmetics Act, 1940, Sections 18 and 23 - Narcotic Drugs and Psychotropic Substances Rules, Rule 66 - Accused a registered Pharmacist and having a licence to stock, and sell the drugs - Raid conducted by police and recovered drugs containing psychotropic substances - According to opinion of Drug Inspector the drugs did not contain contraband in excess of permissible limit - As per Rule 66(1) of the NDPS Rules any person holding valid drug sale licenses can stock for sale, distribution the drug in question after following the conditions as enshrined under the Drugs and Cosmetics Act, 1940 - Proceedings quashed. 2004(1) RCR(Crl.) 724 (P&H) and 2006(4) RCR(Crl.) 974 : 2006(3) Apex Criminal 646 (SC) relied.
[Paras 10 to 13]

Cases referred :

Rajeev Kumar v. State of Punjab, 1997(4) RCR(Crl.) 846 (P&H).
Chandhan Singh v. State of Haryana, 2004(1) RCR(Crl.) 724 (P&H).
State of Uttaranchal v. Rajesh Kumar Gupta, 2006(4) RCR(Crl.) 974 : 2006(3) Apex Criminal 646 (SC).

JUDGMENT

Harbans Lal, J. - This petition has been filed by Tejpal Singh sole proprietor of M/s T.S. Medical Store, Moga Road, Shahkot, District Jalandhar under Section 482 of Code of Criminal Procedure seeking quashment of FIR No. 93 dated 30th May, 2007, registered under Sections 420, 188 of Indian Penal Code, Section 22 of the Narcotic Drugs and Psychotropic Substances, Act, (for short 'the NDPS Act') at Police Station Shahkot, Jalandhar.

2. The facts in brief giving rise to this petition are that the petitioner is a Pharmacist, registered under Section 32(2) of the Pharmacy Act, 1948 vide Certificate No. 26139 valid upto 31st December, 2008. He has been issued five years drug licence No. 19440 NB and 19440 B dated 5th August, 2004 valid upto 4th August, 2009 for selling the retail medicines by State Drug Controlling and Licensing Authority, Punjab, Chandigarh alongwith an identity card. On 30th May, 2007, Station House Officer, Police Station Shahkot, District Jalandhar raided his shop and recovered the following medicines and empty boxes/strips vide seizure/recovery memo, which are reproduced below :

"1.	Tab Anaxil/Anaxinil	0.5 mg	900 (Alprazolam)
2.	Tab Pruyum	2.5 mg	590 (Alprazolam)
3.	Tab.Besquil		230 (Alprazolam)
4.	Tab. Meriproz.	0.5 mg	400 (Alprazolam)
5.	Tab. Dizivox	0.5 mg	120 (Diazepam)
6.	Tab. Valium	5 mg	40 (Diazepam)
7.	Cap Proxivon	8 empty strips
8.	Cap Proxivon	2 empty boxes
9.	Cap Parvon Spas	4 empty boxes
10.	Spasmo Proxivon	1 empty box.
11.	(Expired) date Syrups	8 bottles
12.	Keta Nov (Expired)	9 injections.
13.	Priton Syrup (expired)	1 bottle."

3. Before raiding his shop, SHO on the basis of alleged secret information registered FIR No. 93 dated 30th May, 2007 under the aforementioned Sections against the petitioner on the allegations that he makes the youth consume intoxicating tablets and capsules posing these to be energy boosting drugs. The petitioner was arrested at the spot. While raiding his shop, no drug Inspector accompanied the police. The medicines seized/recovered by the police from his shop are manufactured under the Drugs and Cosmetics Act, 1940 under the proper licenses taken by the manufacturers. Item No. 1 to 4 in the seizure list/memo contains salt Alprazolam which fall under Schedule H of Drugs and Cosmetics Rules, 1945 at serial No. 15. Item Nos. 5 and 6 in the seizure list/memo contains salt Diazepam which too fall sunder Schedule H of the Drugs and Cosmetics Rules, 1945 at serial no. 147. While items No.7 to 10 in seizure list/ memo are empty strips and boxes. Items No. 11 to 13 are expired medicines not worthy of sale/consumption. None of these is a prohibited drug either. Section 18 of the Drugs and Cosmetics Act, provides that for contravention in the provisions of the Act, complaint is to be filed by the Drug Inspector before the Magistrate under Section 23 of the Act after taking samples of the drug whereas in the present case, the Drug Inspector was not joined and thus, he had no occasion to draw any sample from the petitioner's shop and in this manner, the FIR is liable to be quashed.

4. In reply filed by way of affidavit of Sh. Daljinder Singh Dhillon, PPS/DSP Sub Division Shahkot, District Jalandhar on behalf of respondents Nos. 1 and 2, it has been averred that the case is now fixed for recording the evidence of the prosecution witnesses on 11th April, 2008; that the petitioner had not challenged the order of framing of the charges against him and had filed the present petition for quashment of the FIR in question; that the petitioner is selling intoxicating drugs to the public by saying that the said medicines and drugs can enhance their energy and thus, cheating the people by deceitful means; that the dates of some of the drugs and injections had since been expired but even then petitioner was keeping the same. That the storage of dangerous drugs come under the commission of offence under Section 22 of the NDPS Act and the petitioner had not produced any license at the time of the raid; that Dr. Sukhjit Kaur Medical Officer, was joined in the party; that the petitioner had not produced any bills, invoices and cash memos during the investigation of the case and in these circumstances this petition may be dismissed with costs.

5. I have heard the learned counsel for the parties and gone through the record with due care and circumspection.

6. Mr. Arun Bakshi, Advocate appearing on behalf of the petitioner has valiantly urged that as would be apparent from Annexure P-1, the petitioner is a registered pharmacist and as per Annexure P-2, he has been licensed to sell, stock or exhibit (or offer) for sale or distribute by retail the drugs specified in Schedule C& C (i) excluding those specified in such 'X' to the Drugs and Cosmetics Rules, 1945 on his premises situated at Moga Road, Shahkot, District Jalandhar and as transpires from Annexures P-3 to P-7, the seized drugs/medicines were purchased from the wholesale Chemists and Druggists. He further argued that as per letter no. Drugs- 07/1009 dated 8th June, 2007 from the District Drug Inspector, Jalandhar to the SHO, Police Station, Shahkot, the drugs recovered vide recovery memo in case FIR No. 93 dated 30th May, 2007 from the petitioner are covered at Serial No. 87 of the Notification No. 826-E dated 14th November, 1985 as it contains salt Dex- tropropoxyphene hence, not covered under the NDPS Act and further the drug Diazepam, Alprazolam are a psychotropic substance but being drug formulation is Schedule H drug and as per the Rule 66(1) of the NDPS Rules any person holding valid drug sale licenses can stock for sale distribution the drug in question after following the conditions as laid down under the Drugs and Cosmetics Act, 1940 and thus, it is axiomatic from this letter that no offence worth the name is made out against the petitioner.

7. It has been further pressed into service that there is no denying the fact that the Drug Inspector was not with the police party at the time of alleged recovery and as per the provisions of the Drugs and Cosmetics Act, 1940, only the Drug Inspector can lodge the complaint and no FIR could be registered by the police and thus, the FIR in question is liable to be quashed.

8. To buttress this stance, he has sought to place abundant reliance upon the observations made in re : Rajeev Kumar v. State of Punjab, 1997(4) RCR(Crl.) 846 (P&H), Chandhan Singh v. State of Haryana, 2004(1) RCR(Crl.) 724 (P&H) and State of Uttaranchal v. Rajesh Kumar Gupta, 2006(4) RCR(Crl.) 974 : 2006(3) Apex Criminal 646 (SC).

9. To overcome these submissions Mr. Shilesh Gupta, Deputy Advocate General, Punjab has maintained that as a matter of fact, the petitioner was selling intoxicating drugs to the public by saying that the said medicines and drugs can enhance their energy and thus, he used to cheat the people. He further contended that in his letter no. Drugs-07/1009 dated 8th June, 2007, the Drugs Inspector, Jalandhar has mentioned that this may be treated technical opinion and not legal opinion, which may be taken from the legal department and that being so, the petitioner cannot make much capital out of the same.

10. I have well considered the rival contentions. The petitioner as per Annexure P-1 is a registered Pharmacist and he has been licensed to sell, stock or exhibit (or offer) for sale or distribute by retail biological drugs vide Annexure P-2, which has to remain in force from 5th August, 2004 to 4th August, 2009. Items No. 1 to 6 were purchased from the authorized dealers vide Annexures P-3 to P-7. Items No. 7 to 10 as mentioned in the seizure memo/recovery memo were empty strips/boxes. Items No. 11 to 13 were 8 bottles of syrups, nine injections of Keta Nov, one bottle of priton syrup respectively, with expired date. As per the aforesaid letter dated 8th June, 2007, the abovementioned drugs are not covered under the provisions of the NDPS Act and the drug Diazepam and Alprazolam being Psychotropic substance could be stocked by the petitioner for sale/distribution. The respondent have not put on record any legal opinion obtained, if any, from the legal department.

11. Undeniably, the Drugs Inspector was not taken along by the SHO, at the time of conducting the raid at the shop premises of the petitioner. This FIR has been registered on the basis of secret information. The State has come up with the plea that the petitioner was selling the intoxicating drugs to the public by saying that the said medicines and drugs can enhance their energy and thus, cheating the people by deceitful means. It is pertinent to point out here that the FIR in question has not been registered at the instance of a person whom the petitioner had represented that the drugs in question would boost their energy. Further, the petitioner has produced the bills/invoices and cash memos as noted (supra). As per the aforementioned opinion of the Drug Inspector, the recovered drugs are not covered by the provisions of the NDPS Act and the same could be sold by the petitioner after following the conditions as laid down under the Drugs and Cosmetics Act, 1940. There is no counter opinion. Thus to say the least of it, the drugs in question are covered by provisions of the Drugs and Cosmetics Act, 1940. There is nothing on the record to show that none of the drugs contain contraband in excess of permissible limit.

12. In re : Rajeev Kumar (supra), certain drugs including Diazepam were seized. It was found that none of the drugs contained contraband in excess of permissible limit. This Court was pleased to observe that no offence under Sections 21 and 22 of the NDPS Act was made out. It was further held that the plea that preparation was being used for intoxication purpose was not enough for prosecution of accused and that if at all there is contravention by the petitioner that may be of the provisions of Drugs and Cosmetics Act, 1940 for which complaint lies by the Drug Inspector to the Court and not FIR and not prosecution by the police.

13. An identical view has been taken by this Court in re: Chandhan Singh (supra). In Rajesh Kumar Gupta's case (supra), huge quantity of Allopathic medicines containing psychotropic substances was recovered from accused a Medical Practitioner. The drugs were used for medicinal purpose. The Apex Court held that the drugs fell within the purview of Schedules 'G' and 'H' of the Drugs and Cosmetics Act and that prima facie provisions of NDPS Act will not apply. Here in the instant case, Drug Inspector in his afore-quoted letter has mentioned that the drug diazepam, Alprazolam are psychotropic substance but being drug formulation is Schedule H drug and as per Rule 66(1) of the NDPS Rules any person holding valid drug sale licenses can stock for sale, distribution the drug in question after following the conditions as enshrined under the Drugs and Cosmetics Act, 1940.

14. In view of the observations made in re: Rajeev Kumar (supra), the provisions of NDPS Act are not attracted to the present case.

15. As a sequel of the above discussions, this petition is allowed and FIR No. 93 dated 30th May, 2007 registered under Sections 420, 188 of Indian Penal Code, Section 22 of the Narcotic Drugs and Psychotropic Substances Act, at Police Station Shahkot, Jalandhar and all consequential proceedings arising therefrom are hereby quashed.

Petition allowed.