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Dr. Rajinder Singla Versus State of Punjab

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

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 Act’) - 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 under the D and C Act and Rules and, though it is a psychotropic substance under .....

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n 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 the Appellant : Mr. Vikram Chaudhari, Sr. Adv. with Ms. Isha Goyal, Adv. For .....

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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 petitioner was apprehended while driving his vehicle and from the search of his v .....

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cines 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 law that Buprenorphine therapy can be given only to indoor patients and not .....

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t 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 opposes the submissions made by learned counsel for the petitioner on the ground th .....

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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 the total quantity, Buprenorphine hydrochloride found in parcles no.1, 2, 3 an .....

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octor, 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 enlarged on bail. In case, it is held that being a doctor, he cannot keep said .....

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stances 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 and the serial number of entry in the register shall be entered on the prescr .....

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or 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 C Rules. However, if the substance contained in the container is one specifie .....

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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 of drug standards recognised under the Rules. An examination of Schedule  .....

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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 one falling under Schedule 'H' can also fall within the purview of the .....

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ng 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 list of phychotropic substances. Entry Nos.92 and 110 are relevant and they read .....

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ule 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 Narcotic Drugs And Psychotropic Substances Act. The word preparation' is define .....

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orm 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 as a "preparation" of Buprenorphine. Consequently, I am left with t .....

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ical 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 same Chemical Examiner was written on 3rd of February, 2005 where he has aga .....

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n 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 under. Obviously, therefore, if any rule permits a person to possess any psy .....

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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 the Act. That section shows that no person shall possess any psychotropic su .....

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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 where any such provision, imposes any requirement by way of license, permit .....

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e 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 substance "except for medical or scientific purposes and in the manner .....

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hloride 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 or NDPS Rules. Section 9 of the NDPS Act empowers the Central Government to p .....

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se, 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. 34 being "Salts and preparations of above". It is significant to n .....

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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 in the Schedule to the NDPS Act, do not find mention in Schedule to the NDPS .....

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t 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 of the matter. Rule 65(1), inter alia, provides that the manufacture of any p .....

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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 Chapter VII of the NDPS Rules. When a psychotropic substance des not find mention .....

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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 Sched .....

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