2017 (3) TMI 1635 - HC - Indian Laws

Offences under the Narcotic Drugs and Psychotropic Substances Act 1985 - Baggage containing Narcotic Drugs - offence u/s. 8(c) r/w 22(c) of the Act. Held that - The admitted prosecution case is that petitioners were found in possession of 18415 Zolfresh tablets. A reference to Current Index of Medical Specialty (CIMS) informs that Zolfresh is one amongst several tablets wherein tablets with content of Zolpedim in 5 mgs. or 10 mgs. are sold. In the instant case what has been seized are 18415 Zolfresh tablets containing 10 mgs. Zolpedim each. Therefore tablets seized from petitioners are in dosage form. When so the notification in S.O. 2941(E) dated 18-11-2009 would require a determination of small or commercial quantity on the basis of the content of the psychotropic substance of that particular drug (Zolpidem) in dosage form. When so done it will be seen that petitioners were in possession of 184.15 gms. which is below the commercial quantity of 250 gms. If prosecution is to contend that the entire dosage is to be taken for purpose of determining whether the possession is in small or commercial quantity the effect would be a prosecution allegation of the company/manufacturer of the drug/substance violating the provisions of the Drugs and Cosmetics Act without charging them therefor. Though unnecessary this Court would state that reference to a drug/substance in dosage form can only be with reference to a dosage form as permissible in law. Revision allowed.

Issues Involved:
1. Legality of Charge No. 4 under Section 8(c) read with Section 22(c) of the NDPS Act.
2. Determination of the quantity of psychotropic substance (Zolpidem) seized.
3. Applicability of Section 37 of the NDPS Act concerning bail provisions.
4. Interpretation of "commercial quantity" versus "intermediate quantity" under the NDPS Act.
5. Impact of the Chemical Analysis Report on the charges framed.

Detailed Analysis:

1. Legality of Charge No. 4 under Section 8(c) read with Section 22(c) of the NDPS Act:
The revision challenges the framing of Charge No. 4 by the Special Judge for NDPS Act Cases, which imputes the offense under Section 8(c) read with Section 22(c) of the NDPS Act. The prosecution's case involves the seizure of 25.160 kgs of Amphetamine from A1 and A2, and 46809 Zolpidem tablets from A3 and A4. The Chemical Analysis Report indicated the presence of Pseudoephedrine Hydrochloride and Zolpidem Tartrate. The petitioners argue that the charge should be under Section 22(b) (intermediate quantity) rather than Section 22(c) (commercial quantity).

2. Determination of the quantity of psychotropic substance (Zolpidem) seized:
The Chemical Analysis Report dated 9-2-2016 confirmed that Zolpidem Tartrate was not detected in Zopalet tablets, but was present in Zolfresh tablets. The inventory clarified that the total number of Zolfresh tablets seized was 18415, each containing 10 mg of Zolpidem, amounting to 184.15 gms. The court noted that the commercial quantity for Zolpidem is 250 gms, and the small quantity is 10 gms. Therefore, the seized quantity falls within the intermediate range.

3. Applicability of Section 37 of the NDPS Act concerning bail provisions:
Section 37 of the NDPS Act makes certain offenses non-bailable and imposes limitations on bail for offenses involving commercial quantities. The petitioners' concern is that Charge No. 4, as framed under Section 22(c), attracts these stringent bail provisions. They argue that the charge should be under Section 22(b) (intermediate quantity), which does not attract Section 37's bail limitations.

4. Interpretation of "commercial quantity" versus "intermediate quantity" under the NDPS Act:
The court examined the interpretation of "commercial quantity" and "intermediate quantity" in light of the NDPS Act and relevant case law. The court referred to the Supreme Court's judgment in Ouseph alias Thankachan v. State of Kerala, which considered the actual content of the psychotropic substance for determining the quantity. The court also noted the Division Bench's decision in John Paul v. Union of India, which upheld the validity of Notification S.O. 2941(E)/2009, clarifying that the entire mixture or solution should be considered for determining the quantity.

5. Impact of the Chemical Analysis Report on the charges framed:
The Chemical Analysis Report played a crucial role in determining the appropriate charges. The report ruled out the presence of Zolpidem Tartrate in Zopalet tablets and confirmed its presence in Zolfresh tablets. Based on this, the court concluded that the total weight of Zolpidem in the seized Zolfresh tablets was 184.15 gms, which falls within the intermediate quantity range.

Conclusion:
The court allowed the revision, directing the alteration of Charge No. 4 from Section 8(c) read with Section 22(c) (commercial quantity) to Section 8(c) read with Section 22(b) (intermediate quantity). This decision was based on the actual content of Zolpidem in the seized tablets, which was below the commercial quantity threshold. The court emphasized that the determination of small or commercial quantity should be based on the content of the psychotropic substance in dosage form, as clarified by the Notification S.O. 2941(E)/2009 and relevant case law.

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