TMI Blog2013 (7) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... – the exception as provided under Section 8 for use of the psychotropic substance as mentioned in the Schedule (under Section 2(xxiii)) of the NDPS Act for medicinal purposes would not be applicable in case of trade or supply of the psychotropic substance outside India – petition decided against the department. - CRL MC No.2335/2010 - - - Dated:- 20-3-2013 - G P Mittal, J. For the Appellant : Mr Satish Aggarwal, Adv. For the Respondent : Mr Yogesh Saxena, Adv. Per: G P Mittal: 1. The Petitioner Narcotics Control Bureau (NCB) invokes inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (the Code) for setting aside of the order dated 17.04.2010 passed by the learned Special Judge-NDPS whereby the Respondent s prayer for alteration of the charge and for remitting the case to the Court for trial of the case for the offences under the Drugs and Cosmetics Act, 1940 (D C Act) was allowed. 2. As per the allegations of the prosecution an information was received from the Delhi Zonal Unit at NCB that huge quantity of bunogesic injections were being supplied by M/s. Rusan Health Care Ltd. to their stockists at Delhi. In pursuance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunogesic injection which contained Buprenorphine Hydrochloride was a Schedule H drug under the D C Act and though it was a psychotropic substance under the NDPS Act but since it was not included in Schedule I to the Nacrotic Drugs and Psychotropic Substances Rules, 1985 (NDPS Rules), its possession, sale, etc. is not completely prohibited under the NDPS Act. The learned Special Judge relied on a judgment of the learned Single Judge of this Court in Rajinder Gupta v. State 123 (2005) DLT 55 which was relied on by the Supreme Court in State of Uttaranchal v. Rajesh Kumar Gupta (2007) 1 SCC 355 and opined that on the basis of the allegations levelled, the Respondent cannot be said to have committed an offence punishable under Section 22 (c) of the NDPS Act. The learned Special Judge held that since Buprenorphine Hydrochloride was a Schedule H drug, the violation if any, for possession and sale of bunogesic injections could be of the D C Act and the D C Rules framed thereunder. The case was accordingly remitted to the learned Chief Metropolitan Magistrate to deal with the same in accordance with law or to assign the same to any other Court of MM . 5. The learned Special Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the NDPS Rules and held that the Section 8 (c) prohibits production, manufacture, possess, sale, etc. etc. of any narcotic drug and psychotropic substance except for medicinal or scientific purposes. Since Buprenorphine was not a prohibited psychotropic substance it being absent in Schedule I to the NDPS Rules, its possession by itself cannot be considered to be an offence under Section 22 of the NDPS Act simply because it is included as a psychotropic substance in Schedule (under Section 2 (xxiii)) to the NDPS Act. The learned Single Judge held that as per Rule 65 (1) manufacture of any psychotropic substance other than those specified in Schedule I of the NDPS Rules shall be in accordance with the condition of licence granted under the D C Rules and D C Act. The relevant observations in Rajinder Gupta are extracted hereunder:- Section 8(c), which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale, use etc., of any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the NDPS Act or NDPS Rules or orders made thereunder. This means t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances which find place both in the schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example: Methaqualone, Delorazepam, Ketazolam, Loprzolam, Pipradrol, Tetrazepam. At the same time, there are others like Buprenorphine, Amphetamine, Bromazepam, Lorazepam, Phenobarbital and Pemoline which, though specified in the Schedule to the NDPS Act, do not find mention in Schedule I to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in Schedule I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule I to the NDPS Rules. It may be mentioned here that the Supreme Court, in the afore-mentioned decisions, was not called upon to examine this aspect of the matter, namely, whether Rule 66 of the NDPS Rules applied to all psychotropic substances or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court held that since the drugs were mentioned in Schedule D H of the D C Rules and were being used for medicinal purposes, the Respondent would not be guilty of violation of Section 8 of the NDPS Act. Paras 21 to 24 of the report are extracted hereunder:- 21. The respondent admittedly possesses an Ayurveda Shastri degree. It is stated that by reason of a notification issued by the State of Uttar Pradesh dated 24-2-2003, the practitioners of ayurvedic system of medicines are authorised to prescribe allopathic medicines also. The respondent runs a clinic commonly known as Neeraj Clinic . He is said to be assisted by eight other medical practitioners being allopathic and ayurvedic doctors. It is also not in dispute that only seven medicines were seized and they are mentioned in Schedules G and H of the Drugs and Cosmetics Rules. In this regard, we may notice the following chart: Sl. No. Medicine seized Schedule H, the Drugs and Cosmetics Rules The Schedule, the 1985 Act Schedule I, the 1985 Rules 1. Epilan C. Phenobarbital Yes Entry 69 - 2. Phensobar-50 Yes - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e punishable. Thus, anybody dealing with a psychotropic substance for supplying to any person outside India even if it does not find mention in the NDPS Rules will be punished under the NDPS Act. The exception as provided under Section 8 for use of the psychotropic substance as mentioned in the Schedule (under Section 2(xxiii)) of the NDPS Act for medicinal purposes would not be applicable in case of trade or supply of the psychotropic substance outside India. 12. In Sanjay Kumar Kedia the Supreme Court was not dealing with the possession, manufacture or inter-state export or import of the psychotropic substance but with the supply of psychotropic substance by M/s. Xponse Technologies Ltd. and M/s. Xpose IT Services Pvt. Ltd. outside India which was punishable under Section 24 of the NDPS Act. 13. Similarly, in D. Ramkrishnan the Narcotic Drugs were being exported to the customers abroad through airmail and RMS post offices at Coimbatore which was punishable under Section 23 of the NDPS Act, 1985. Under Section 23 of the NDPS Act again the exemption for possession, sale, purchase, inter-state import and export for medicinal or scientific purposes is not applicable in case of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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