TMI Blog2017 (3) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Crl. R.C. No. 1421 of 2016 - - - Dated:- 14-3-2017 - C.T. Selvam, J. Shri B. Kumar, Senior Counsel for R. Rajan, for the Petitioner. Shri N.P. Kumar, Special Public Prosecutor, for the Respondent. ORDER This revision challenges framing of Charge No. 4 by learned I Additional Special Judge for NDPS Act Cases, Chennai, in C.C. No. 4 of 2016 on 17-8-2016. 2. Respondent has filed a complaint alleging commission of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (herinafter referred to as Act ) against petitioners/A1 to A4 and one another, such other said to be absconding. 3. The prosecution case in brief is that A1 and A2 were intercepted when they alighted a train from New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drine Hydrochloride; 2. Report : Lab No. 815 (marked as P1S1 of Annexure-III) ZOPALET Tablet : Presence of Zolpidem tartrate, could not be detected; 3. Report : Lab No. 816 (marked as P2S1 of Annexure-III) ZOLFRESH Tablet : Answer the tests for presence of Zolpidem Tartrate; 4. Report : Lab No. 817 (marked as P3S1 of Annexure-III) ZOPALET Tablet : Presence of Zolpidem tartrate, could not be detected. That Pseudoephedrine Hydrochloride has been detected in the exhibits marked as P1S1 and P2S1 of Annexure II . Zolpidem Tartrate has been detected in the exhibits marked as P2S1 of Annexure III. It is submitted Pseudoephedrine Hydrochloride is controlled substance and Zolpidem Tartrate is Psychotropic Substances (mentioned in Sl. No. 109 of Schedule II of the NDPS Act, 1985), read with NDPS (Regulation of Controlled Substances) Order, 1993. 14. During the course of investigation according to law, on scrutiny of documents and from the statements recorded from the person concerned, it has came to light that in the month of December 2015 at Chennai, Delhi and other places the accused A-1 to A-5 have entered into a criminal conspiracy with others known to the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving 10 Zolpidem tables and 261 loose tablets and hence, committed offence u/s. 8(c) r/w 22(c) of the Act. 10. Learned senior counsel for petitioners submitted that the prosecution had preferred Crl. M.P. No. 2563 of 2016 u/s. 52A of the Act submitting that in preferring the complaint and by oversight the number of Zolfresh and Zopalet tablets mentioned as seized had been interchanged. The Chemical Analysis Report dated 9-2-2016 informed that presence of Zolpidem Tartrate was not detected in Zopalet tablets and hence, the dispute was only regards the number of Zolfresh tablets seized. Under orders dated 28-9-2016, inventory was ordered. The proceedings of the Special Judge dated 30-9-2016 made clear that the total number of Zolfresh tablets only was 18415. Therefore, the Court below fell into serious error both in erroneously informing the number of Zolfresh tablets as also including the Zopalet tablets. Such error visits the accused with very serious consequences. Each Zolfresh tablet contained only 10 mgs of Zolpidem Tartrate , a psychotropic substance and the total weight of such substance came to 184.15 gms. Item No. 238 in the table u/s. 2 (viia) and (xxiiia) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts pure drug content. Learned Special Public Prosecutor also referred to the judgment of the Division Bench of this Court in John Paul v. Union of India [W.P. No. 28715 of 2015] and relied on paragraph No. 15 thereof. The same reads thus : 15. It is fairly conceded by the learned Senior counsel for the petitioner that the esters, ethers and salts of certain drugs as well as the isomers of certain drugs within specific designation would also come within the purview of the drug itself. It is seen from the explanation to Section 3(d) of the Patents Act, 1970 that the Legislature is empowered to identify even the salt, esters, ethers, polymorphs, metablites, pure form, particle size, isomers, mixtures of isomers as part of the same substance, unless they differ significantly in properties with regard to efficacy. Therefore, to this extent, the learned Senior counsel contended that he did not find fault with the Notification. But his primary objection is that if any one of the substances indicated in Sl. Nos. 1 to 238 of the table under the Notification is possessed along with a substance that does not find a place in the list contained in the table, the weight of that substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile an offence u/s. 22(c) of the Act would suffer the rigours of Section 37 of the Act in grant of bail that under 22(b) of the Act would not. The purpose sought to be achieved by petitioners is that the case against them falls not under Section 22(c) of the Act as charged but under Section 22(b) of the Act. 17. Regards Charge No. 4, the prosecution case is that tablets under brand names Zopalet and Zolfresh were seized. The Chemical Analysis Report of 9-2-2016 rules out the presence of a psychotropic substance Zolpidem Tartrate in zopalet tablets. The report informed the presence of substance in the tablets bearing the name Zolfresh. Hence, the prosecution concern regards the actual number of Zolfresh tablets seized and the petition in Crl. M.P. No. 2563 of 2016 seeking an inventory. Pursuant to orders therein, an inventory has been taken and the total number of Zolfresh tablets have been found to be 18415. 18. This Court is inclined to allow this revision on a consideration not canvassed before it. 19. Section 2 (xx) of the Act defines preparation thus : preparation , in relation to a narcotic drug or psychotropic substance means any one or more such drugs or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of that particular drug in dosage form or (4) isomers, esters, ethers and salts or salts thereof, wherever existence of such substance (meaning isomers, esters, ethers, salts or salts thereof) is possible and not just its pure content. In other words, where a drug includes isomers, esters, ethers and salts of the drug or salts thereof, the same shall be added to the drug content for purpose of determining whether the drug/substance falls under small or commercial quantity. 22. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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