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2016 (1) TMI 2 - PUNJAB & HARYANA HIGH COURT

2016 (1) TMI 2 - PUNJAB & HARYANA HIGH COURT - 2016 (344) E.L.T. 3 (P & H) - Petition for release of the petitioner on regular bail during pendency of the trial under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Actí) - It is claimed that The petitioner, being doctor by profession, was entitled/competent to possess medicines including Buprenorphine, which has been alleged to be recovered from him - Held that:- Buprenorphine Hydrochloride is a Schedule H drug unde .....

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gs And Psychotropic Substances Act is also not attracted. - Accordingly in these circumstances no offence under the Narcotic Drugs And Psychotropic Substances Act is made out, 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 ₹ 50,000/- with one surety of the like amount to the satisfaction of the concerned trial Court. - Crl. Misc. No. M-37530 of 2015 - Dated:- 17-11-2015 - Daya Chaudhary, J. For .....

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tion Banur, District Patiala. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case, whereas, no offence under Section 22 of the NDPS Act is made out against him. The petitioner, being doctor by profession, was entitled/competent to possess medicines including Buprenorphine, which has been alleged to be recovered from him. The provisions of NDPS Act are not attracted as there is no bar to keep the medicines. As per allegations in the FIR, the peti .....

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n-after referred to as 'the Rules'), there was no bar in keeping medicines being a doctor. Learned counsel also submits that a registered Medical Practitioner is exempted from all provisions of Chapter IV of the Drugs and Cosmetics Act, 1940 and Rules thereunder, except the requirement of purchasing the drug from a licensed dealer or manufacturer. The petitioner has been complying with the conditions as mentioned under the Rules. Learned counsel also submits that there is no provision of .....

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s and Cosmetics Act, 1940 and Rules framed thereunder, there is no requirement of the license for the Registered Medical Practitioners. The petitioner is in custody since 03.08.2015. Learned counsel for the petitioner also submits that CWP No.1361 of 2015 was filed by one Dr. Ashwin Mohan before this Court under similar circumstances and his warrants of arrest were stayed. The said petition is still pending and the interim order is also continuing. Learned counsel for the respondent-State oppose .....

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, a secret information was received by ASI Amrik Singh to the effect that the accused was selling intoxicant medicines to the drug addicts after getting the same at lower rate. The accused-petitioner was apprehended and 38 boxes of Nabuse- LS, 30 boxes of Nabuse-0.4 mg, 45 boxes of Buproex-N Lite and 18 boxes of Buproex-I were recovered from him. However, on the basis of said recovery, the FIR, in question was registered against the petitioner. As per case of the prosecution, after considering t .....

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by the petitioner was dismissed on the ground that the petitioner, being a doctor, he can only prescribe medicines but cannot stock such huge quantity of the medicines. It is to be decided as to whether Buprenorphine Hydrochloride I.P. injections are covered under the definition of psychotropic substance under the NDPS Act. If they are not to be regarded as psychotropic substances then no offence under the NDPS Act would be made out. In such a situation, the petitioner becomes entitled to be en .....

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ed as the "D and C Rules"), the Narcotic Drugs and Psychotropic Substances Act and the NDPS Rules. Rule 65 of the D and C Rules prescribes the general conditions for licences in Forms 20, 20A, 20B, 20F, 20G, 21 and 21B. Sub-rule (3)(1) of Rule 65 stipulates that the supply of any drug, other than those specified in Schedule X, on the prescription of a Registered Medical Practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose .....

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ing of medicines. It specifically provides that the container of a medicine for internal use shall, if it contains a substance specified in Schedule 'H', be labelled with the symbol Rx conspicuously displayed on the top left corner of the label and shall also be labelled with the following words :- "Schedule 'H' drug" Warning "to be sold by retail on the prescription of a Registered Medical Practitioner only." This is so provided in Rule 97(1)(b) of the D and .....

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ner only." This is so provided in Rule 97(1)(c) of the D and C Rules. It may also mention Rule 104 of the said Rules which provides that the letters "IP" and recognised abbreviations of the pharmacopoeias and official compendia of drug standards prescribed under these rules shall be entered on the label of the drug only for the purpose of indicating that the drug is in accordance with standards set out in the Indian Pharmacopoeia or in any such pharmacopoeia or official compendium .....

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ug specified in Schedule 'H' and is to be sold by retail only on the prescription of a Registered Medical Practitioner. The stipulation with regard to the entries made in the Register as prescribed under Rule 65 have also to be complied with by the retailer making the sales. It is also to be noted that a reading of Rule 97(1)(c) clearly indicates that it is quite possible that a drug falling within the meaning of the Drugs and Cosmetics Act, 1940 and the D and C Rules and particularly on .....

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ist of psychotropic substances specified in the Schedule." A plain reading of the above definition makes it clear that a psychotropic substance could be any substance, natural or synthetic, or any natural material or any salt or preparation' of such substance or materials included in the list of psychotropic substances specified in the Schedule. For this purpose, a reference to the Schedule becomes necessary. The Schedule to the Narcotic Drugs And Psychotropic Substances Act gives a lis .....

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ading of Section 2(xxiii) and the aforesaid Entry Nos.92 and 110 of the Schedule to the Narcotic Drugs and Psychotropic Substances Act it becomes clear that Buprenorphine Hydrochloride is not mentioned by name in the schedule and that is only Buprenorphine which has been listed as a psychotropic substance. The next question to be answered is whether Buprenorphine Hydrochloride is a salt or preparation' of Buprenorphine which is a psychotropic substance specified in the Schedule to the Narcot .....

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rphine, in terms of the aforesaid definition, it would have to be in dosage form or any solution or mixture, in whatever physical state, containing Buprenorphine. Buprenorphine Hydrochloride, as admitted by all the counsel appearing in the matter, is neither a solution nor a mixture of Buprenorphine. In fact, it is an entirely different compound. Furthermore, it could also not be regarded as Buprenorphine is dosage form. Therefore, it is clear that Buprenorphine Hydrochloride cannot be regarded .....

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orphine Hydrochloride. The letter dated 8th January, 2005 written by the Chemical Examiner Grade-II, Customs Laboratories, Customs House, Kandla, addressed to Mr Satish Aggarwal, Senior Special Public Prosecutor was placed before me. In that letter, it has been stated that Buprenorphine Hydrochloride is a salt of Buprenorphine. It was further indicated that Buprenorphine and its salts including Buprenorphine Hydrochloride give a positive test for Buprenorphine on testing. A similar letter by the .....

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r is in the negative. In the context of section 21 of the NDPS Act which is an analogous provision in respect of "narcotic drugs", the Supreme Court, in the case of Sajan Abraham v. State of Kerala (2004) 4 SCC 441 held :- "7. It is thus apparent that what is made punishable under Section 21 is possession, sale, purchase, etc. of the drugs and preparations mentioned therein in contravention of any provision of the Act or any rule or order made or condition of license granted there .....

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the case of Ouseph v. State of Kerala: : 2004(4) SCC 446 , the Supreme Court had observed that [at page 447]:- "If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed." And, in Hussain v. State of Kerala: (2000) 8 SCC 139, the Supreme Court had already held that:-"If it was "psychotropic substance" possession of the same would amount to an offence only if it was in contravention of Section 8 of .....

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ny coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import Interstate, export Interstate, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made there under and in a case .....

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f ganja for any purpose other than medicinal and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specified in this behalf. Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes" Section 8(c), which is relevant for the purpose of this case as it deals with psychotropic substances, prohibits the manufacture, possession, sale, use etc., of any psychotropic .....

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Rules or orders made there under. It must remember that buprenorphine hydrochloride I.P. is a Schedule H Drug within the meaning of the D and C Act and Rules. Its manufacture, sale etc., is regulated by the D and C Act and D and C Rules. Coming back to the NDPS Act, I find that in the case of a medication, which also happens to be a psychotropic substance within the meaning of the NDPS Act, its "extent and manner" of use etc., would be governed by the other provisions of the NDPS Act .....

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ure, possess, transport, import inter-state, export inter-state, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I." It is to be noted that this "Schedule I" is different to the Schedule to the NDPS Act. This Schedule I is appended to the NDPS Rules and is in two parts - (I) Narcotic Drugs and (II) Psychotropic Substances. Here it is concerned with psychotropic substances. There is a list of 33 specific psychotropic substances with entry no. .....

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e applicable in respect of Buprenorphine Hydrochoride 3. In this connection, it is pertinent to point out that there are several psychotropic substances which find place both in the Schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example: Methaqualone 4, Delorazepam 5, Ketazolam 6, Loprzolam 7, Pipradrol 8, Tetrazepam 9. At the same time, there are others like Buprenorphine 10, Amphetamine 11, Bromazepam 12, Lorazepam 13, Phenobarbital 14 and Pemoline 15 which, though specified .....

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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 NPS Rules applied to all psychotropic substances or only those specified in Schedule I to the NDPS Rules. It is, therefore, open to this Court to consider and decide this aspect .....

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S Rules. Rule 66 relates to possession etc., of psychotropic substances. Sub-Rule (1) thereof provides that no person shall possess "any psychotropic substance" for any of the purposes covered by the D and C Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under the NDPS Rules. 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 Chapt .....

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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 .....

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