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2005 (8) TMI 677 - HC - CustomsBuprenorphine Hydrochloride I.P. Injections - psychotropic substance within the meaning of the NDPS Act Schedule Or "H" Drugs under the Drugs and Cosmetics Act, 1940 - application for grant of bail - HELD THAT:- 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-state or export inter-state of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule I to the NDPS Rule. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule H drug would fall within the rigours of the D and C Act and Rules. Finally, it must be noted that Buprenorphine Hydrochloride I.P. is also a medication and is used as a pain reliever. Recently it is also being used to treat opiate addiction (such as addiction to heroin). It has legitimate uses as an analgesic and for de-addiction. However, it is also capable of misuse being a psychotropic substance. Perhaps because of this reason, it was left out of Schedule I to the NDPS Act but is very much regulated under the D and C Act and Rules. Application for grant of bail - The petitioner is aged about 70 years and is said to be suffering from heart problems. It is further contended that he was taking treatment in Iran and is undergoing such treatment now in Tihar Jail. Only 1091 ampoules of Buprenorphine Hydrochlorideare alleged to have been recovered from the petitioner. Therefore, taking the content of each 2ml ampoule (as per the complaint itself) to be 0.6 mg of Buprenorphine Hydrochloride, the recovery from the petitioner is only of 1091 x 0.6 = 658.2 mg or 0.6.82 gm of Buprenorphine Hydrochloride which amount is even smaller than the specified small quantity of 1 gm. Moreover, even if all the ampoules are taken to be recovery from the petitioner they would total to 7235 ampoules of 2 ml. each. That would tranlate to a content of only 4.341 gms of Buprenorphine Hydrochloride and not 14.5 kg as erroneously calculated by the learned Additional Sessions Judge in his order dated 7.8.2004 whereby the petitioner's bail application was rejected. Even this quantity is far below the commercial quantity of 20 gm. I have already held that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22, 23, 28 or 29 of the NDPS Act would not be attracted. Furthermore, assuming that an offence under the NDPS Act was, prima facie, made out, the quantity linked to the present petitioner is only 4.341 gm, much lower than the commercial quantity of 20 gm. Accordingly, even in this assumed scenario, the rigours of section 37 of the NDPS Act would not apply. In view of all these circumstances 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 ₹ 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court. As indicated, Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the D and C Act and Rules, the offence under section 8 is not made out. Consequently, punishments u/s 22 or 29 of the NDPS Act would not be attracted. Moreover, the petitioner was only a Customs House Agent who cleared medical consignments on behalf of his clients. Thus, 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 ₹ 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court. It is made clear that all observations made in this order, whether common to all the applications or specific to each of the applicants, are only prima facie in nature. They are only for the purposes of consideration of the aforementioned bail applications and are not to be regarded at the time of trial of the respective cases. All the applications stand disposed of.
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