TMI Blog2011 (7) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ons were considered wherein the allegations against the accused persons were for possession of ampoules containing injectable contents of Buprenorphine. This Court heard all these petitions together and vide its judgment dated 22 nd August, 2005 held that the possession, sale and transportation of Buprenorphine Hydrochloride injections was not an offence punishable under Section 22 of the NDPS Act and thus, granted bail to the applicants in the said batch matters including Respondent No. 1 herein. 2. Against the said order the petitioner filed the Special Leave Petition. The Hon‟ble Supreme Court vide its order dated 31 st March, 2006 observed that this being the order passed in the bail application it will not have any persuasive effect, when the matter is finally considered before the Special Judge on merits. Thereafter an application was filed by the Respondent No. 3 seeking exercise of its jurisdiction under Section 216 Cr.P.C. and to pass suitable orders to secure the ends of justice. Before filing the application, the Respondent No. 3 filed a Criminal Revision Petition in this Court being Criminal Revision No. 204/2005 challenging the orders dated 3rd February, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made out and it was a case under the Drugs and Cosmetics Act, 1999 which was triable by the learned Metropolitan Magistrate and thus sent the file to the learned ACMM for further proceedings in accordance with law. This order dated 30th November, 2006 passed by the learned Special Judge discharging the Respondents for offences punishable under Section 29 and 22 (c) of the NDPS Act is the order impugned in the present petition. 4. Thus the issues that call for determination in the present case are; firstly, whether an offence committed under Section 29 and 22 (c) of the NDPS Act in relation to a psychotropic substance which though mentioned in the Schedule to the Act but not in Schedule I to the NDPS Rule is made out or not; Secondly, whether the learned Special Court was within its jurisdiction to have discharged the Respondent No.3 on an application under Section 216 Cr.P.C. after an order of charge was framed against him. 5. Learned counsel for the petitioner states that in the present case there was recovery of 40001 injections of Buprenorphine which is a psychotropic substance mentioned in the Schedule and draws attention of this Court to Section 8 of the NDPS Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the application of other laws. Since the Respondents have contravened Section 8 (c) and Rule 67A of the NDPS Act and Rules they are liable to be charged for offences punishable under Section 29 and 22 (c) of the Act and in case the Respondents claim to be falling in the explanation of medical and scientific purpose under Section 8 (c), the onus is on them to prove as per Section 105 of the Indian Evidence Act and till that onus is discharged, the Court has to presume the commission of offences. 6. Learned counsel for the Petitioner states that the observation of this court in Rajinder Gupta (Supra) is per incuriam. Firstly, as in the said case this Court did not examine the provisions of Chapter VI of the Rules and confined itself to Chapter VII of the Rules which only deal with inter-state import, export, possession, transport, manufacture etc. As per the complaint, the Respondents have also committed offence punishable under Section 23 of the Act and hence the provisions of Chapter VI of the rules are applicable. It is contended that in case this order is not set aside the Petitioner would have no chance to get a charge under Section 23 of the NDPS Act framed against the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that Phentermine and Butalbital are psychotropic substance and fall within the proviso contained in Section 8 of the Act. It is contended that the views expressed in State of Uttaranchal vs. Rajesh Kumar Gupta and Rajindra Gupta vs. State (Supra) have been clearly overwritten. Relying on Customs vs. Ahmadaliev Nodira, 2004 (3) Scale 211 it is contended that the judgment rendered in State of Uttaranchal (Supra) by a bench comprising of two Hon‟ble judges would not prevail. 8. The other contention of the learned counsel for the Petitioner is that the learned Trial Court could not have discharged the Respondents after the order of charge had been framed while considering an application under Section 216 of the Cr. P.C. wherein only alternation or addition of the charge is permissible. Reliance is placed on Sohan Lal vs. State of Rajasthan 1990 Cri.LJ 2302 (SC), Adalat Prasad vs. Rooplal Jindal, (2004) 7 SC 338, State of Maharashtra vs. B.K. Subbarao, 1993, Cri.L.J. 2984 (Bombay), Tapati Bag vs. Patitpaban Ghosh, 1993 Cri.L.J 3932 (Calcutta) and Vibuthi Narayan Chaudbey vs. State of U.P. 2003 Cri. L.J. 116 (Allahabad). Thus, it is prayed that the impugned order be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, transport etc. and thus, only Chapter VI of the Rules would apply. The Petitioners have till date not challenged the order dated 3 rd February, 2005 and thus, at this stage praying this Court to set aside the impugned order passed on an application under Section 216 Cr.P.C. so that the learned Special Court can also frame charges under Section 23 of the NDPS Act is wholly misconceived and untenable. 11. It is further contended that the distinction drawn by the learned counsel now from the order passed on bail by this Court in Bail Application No. 205/2005 wherein this Court prima facie held that 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 a drug in schedule H would fall within the rigors of D C Act and Rules. This Court in the said decision did not advert to Chapter VI of the Rules as neither the complaint nor the charge against the Respondents related to inter country import and export. It is stated that reference is made to a person who owns Win Drugs Limited and none of the Respondents here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner on D. Ramakrishnan vs. Intelligence Officer, Narcotic Control Bureau, AIR 2009 SC 2402 is misconceived as firstly, there is no discussion and secondly, that even in D.Ramakrishnan (Supra) the Hon‟ble Supreme Court actually approved and reiterated its decision in Rajesh Kumar Gupta (supra) however, held that the said decision was not applicable to the facts of that case. Thus, the law laid down by the Hon‟ble Supreme Court in Rajesh Kumar Gupta is binding on this Court. In view of the decision of the Hon‟ble Supreme Court and the Division Bench of this Court reliance of the learned counsel for the Petitioner on Kashmir Chand s/o Mathura Das and another vs. CBI, MANU/PH/0881/2010, a decision rendered by a learned Single Judge of the Punjab and Haryana High Court, is fully misconceived. 14. It is stated that the conflict in the decision in Ahmadaliev Nodira (Supra) and State of Uttaranchal vs. R.K. Gupta, (Supra) has already been referred by the Hon‟ble Supreme Court to a larger bench and till the decision by the larger bench is rendered the law laid down by the Hon‟ble Supreme Court in State of Uttaranchal (supra) and by the Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Section 23. Punishment for illegal import in to India, export from India or transhipment of narcotic drugs and psychotropic substances. - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avention of any provision of the Act or any Rule or order made thereunder. Thus a plain reading of the two provisions show that the possession, manufacture etc. of a psychotropic substance is an offence except permitted by the provisions of the Act, Rules or orders made thereunder. However, in the case of medicinal and scientific purpose and in compliance of provisions of the NDPS Act the possession and manufacture, sale etc. is not an offence. Chapter VI of the Rules deal with import and export inter country and Chapter VII deals with manufacture, possession, transportation, import export, inter country sale, purchase, consumption etc. Both these chapters start with the general prohibition mentioned in the Rule 53 and Rule 64 respectively, according to which sale, purchase inter country and intra country of psychotropic substance mentioned in Schedule I is prohibited. Thus both these general provisions relate to Schedule I of the NDPS Rules and not to the Schedule to the NDPS Act. Buprenorphine Hydrochloride is a psychotropic substance mentioned in the Schedule to the NDPS Act but not mentioned in the Schedule I to the NDPS Rules. Rule 53 states that subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported any pharmaceuticals so far, however, they were trying to export Buprenorphine injections to Dubai through Air Cargo, Delhi and that they had already sent their applications to Central Bureau of Narcotics, Gwalior for obtaining export permission but they had yet not received the permission. Even in view of this admission of Respondent No. 3, no case for applicability of Chapter VI of the NDPS Rules is made out. No charge was framed under Section 23 NDPS Act against the Respondents. The Petitioner has not challenged the same before this Court by a petition earlier. To now contend that if the Respondents are not charged for offences under the provisions of NDPS Act, the Petitioner will have no chance to get the charge under Section 23 NDPS Act framed against them. I am not in agreement with learned counsel for the Petitioner that by interpreting the Statute and the Rules, a penal offence be made out and the Respondents should be tried thereof. Thus, I am of the considered view that the possession and transportation intra country of Buprenorphine Hydrochiloride would not be an offence under the Act and hence not punishable under Section 22 and 29 of the Act and the learned Tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the operation thereof. However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder. 23. The Supreme Court specifically observed that it had not been brought to their notice that the NDPS Act provided for the manner and extent of the passion of the contraband. The NDPS Rules, however, provided for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, import, export, etc. of the contraband. In this connection, the Supreme Court considered the provisions of Chapters VI and VII of the NDPS Rules in the following manner: ...Chapter VI of the 1985 Rules provides for import, export and transhipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I appended thereto is prohibited. Such prohibitions, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression medicinal purposes. Consequently, the Supreme Court was of the view that inasmuch as the NDPS Act would in itself not apply, Section 37 thereof would, prima facie have no application in view of the exception contained in Section 8 thereof read with the NDPS Rules. Resultantly, the Supreme Court declined to interfere with the order of the High Court granting bail. 25. There is no denying that the above decision was rendered in the context of an order granting bail and when the Supreme Court was considering as to whether it should exercise its jurisdiction under Article 136 of the Constitution of India to interfere with the order passed by the High Court. But that does not enable us to detract from the position that the Supreme Court, while considering the question, did examine the relevant provisions of the NDPS Act and the NDPS Rules and came to the conclusion that if the drugs did not find place in Schedule-I appended to the Rules, the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. AIR2007SC1609 . Furthermore, even if the observations were to be regarded as obiter dicta, as pointed out in Commissioner of Income-tax, Hyderabad- deccan v. Vazir Sultan Sons 1959 Supp (2) SCR 375, the obiter dicta of the Supreme Court are entitled to considerable weight. The same view is expressed by the Supreme Court in Director of Settlements, A.P. v. M.R. Apparao (supra) where the Supreme Court observed: Such an obiter may not have a binding precedent..., but it cannot be denied that it is of considerable weight. 27. In State of Haryana v. Ranbir @ Rana , 2006CriLJ2142 , the Supreme Court held: A decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a view point or sentiments which has no binding effect. See Additional District Magistrate, Jabalpur etc. v. Shivakant Shukla etc., 1976 CriLJ 945 . It is also well- settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. [See Division Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in Ahmadalieva Nodira (supra) and had submitted that this decision being that of a Bench comprising of three Hon'ble Judges of the Supreme Court would override the decision in Rajesh Kumar Gupta (supra) which was rendered by a Bench comprising of only two Hon'ble Judges of the Supreme Court. First of all, there is nothing in this decision which contradicts what has been considered and settled in Rajesh Kumar Gupta (supra). In Ahmadalieva Nodira (supra), the provisions of the NDPS Rules were not even considered nor was the issue of Schedule- I to the NDPS Rules in contrast to the psychotropic substances mentioned in the Schedule to the NDPS Act discussed. Secondly, and in any event, the said decision in Ahmadalieva Nodira (supra) was noticed and considered in Rajesh Kumar Gupta (supra) and with regard to the said decision, the Supreme Court in Rajesh Kumar Gupta (supra) specifically observed that: This Court, however, in the said decision was not concerned with the construction of Section 8 of the 1985 Act. It does not and did not lay down a law that although the provisions of the 1985 Act shall prima facie not apply, no bail can be granted. These observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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