TMI Blog2020 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 21, 22 and 29 of the NDPS Act, 1985 with it having been alleged that for the entire quantity of seized narcotics and psychotropic substances, Harish Chander, proprietor of M/s Shiv Medicos and the present applicant, proprietor of M/s City Enterprises had not followed the mandated provisions of Rule 65 of the Drugs and Cosmetics Rules, 1945. 2. Notice of the petition was issued to the Central Bureau of Narcotics i.e. the respondent and both the applicant and the respondent have addressedtheir submissions qua the prayer made by the petitioner. Reply to the petition has been filed by the respondent. Written submissions on behalf of either side have also been submitted, perused and considered. 3. The allegations that have been made in the Sessions Case No.374/2018 filed by the respondent are to the effect that an information had been received that a person named Harish Chander proprietor of M/s Shiv Medicos (the co-accused presently in judicial custody) at 1706/8, First Floor, Milap Bhawan, Bhagirath Palace, Delhi-06 was selling narcotics and psychotropic medicines illegally at his shop and on search of his shop being conducted, the narcotics and psychotropic medicines were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased the narcotics and psychotropic medicines on bill from M/s Hariwin Pharma and had further sold the narcotics and psychotropic medicines without bills illegally to Sh. Harish Chander, the co-accused on a frequent basis and also stated that two coolies namely Kanhaiya and Tiwari used to come to his shop and purchased the narcotics and psychotropic medicines illegally in cash for a higher price than the market rate and that he, the present petitioner did not have the address and mobile number of Kanhaiya and Tiwari. The petitioner is also stated to have admitted that he did not have any record of sale/ purchase of the narcotics and psychotropic medicines and that he had not maintained any sale record of the narcotics and psychotropic substances. 7. The complaint however states to the effect that the sales made by M/s Hariwin Pharma were all made on the basis of the bills in terms of the provisions of Rule 65 of the Drugs and Cosmetics Rules, 1945 including to M/s City Enterprises run by the petitioner herein. 8. As per the averments made in the complaint, in as much as the petitioner had failed to produce the records of sale/ purchase of the seized medicines as mandated unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No previous involvement of the petitioner was found on verification of the criminal background record. 13. The complaint has further alleged to the effect that a letter was issued to the Bank Manager, YES Bank and ICICI Bank for providing bank details of the petitioner and from the report it was received that there was no payment ever made through any cheque or through any FD from Harish Chander into the account of the petitioner and rather the account statement of Account No. 80063700000484 showed that a heavy amount was debited into the account of Ganesh Medicos, Maharaja Traders, Marcus Laboratories and Mahadev Agencies proprietors of M/s Ganesh Medicos, M/s Marcus Laboratones, M/s Maharaja Traders and M/s Mahadev Agencies and that a sum of ₹ 1.8 Crores in cash was found deposited into the account of the petitioner in five months prior to the complaint. It was thus, contended by the CBN that this indicated that the petitioner was involved in the illegal sales of Narcotics and Psychotropic substances. 14. The complaint vide paragraph 30 thereof specifies the seizures effected of the Narcotics and Psychotropic medicines which had been sold by the petitioner herein to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v Medicos were involved in the illegal business of sale and purchase of Narcotics and Psychotropic substances. It has also been submitted through the complaint that the requisitepresumption of the commission of the offence by the petitioner has essentially to be drawn in terms of Section 54 of the NDPS Act, 1985. 16. The factum of the sale of the medicines as detailed in the complaint as adverted to elsewhere hereinabove by the petitioner of M/s City Enterprises to Harish Chander proprietor of M/s Shiv Medicos without any bills, is not refuted by the petitioner. The contentions, however, raised on behalf of the petitioner are to the effect that the petitioner has been in custody w.e.f. 30.07.2018 for more than one year and five months and no recoveries of any incriminating medicines have been effected from his commercial premises nor from his residence. 17. The petitioner has further submitted that the injections of Pentazocine, a psychotropic substance sold by the petitioner as claimed by the claimant through its reply to the bail application is only of 300 injections containing 300 gms of the psychotropic substance and as per Government notification S.O.1055 (E) dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontaining not more than100 milligrammes of the drug per dosage unit and with a concentration of notmore than 2.5 % in undivided preparations and which have been established inTherapeutic practice. 20. The petitioner has further submitted that the responses to RTIs from the Drugs Controller General India also show that the preparations containing codeine and its salts also do not fall under the provisions of the NDPS Rules, 1985 but that they fall under Schedule H of the Drugs and Cosmetics Rules, 1945 and are governed by the said rules and that sale of these drugs does not attract the provisions of the NDPS Rules, 1985 nor the Drugs and Cosmetics Rules, 1945, however, these formulations are prescription drugs and are to be dispensed on prescription for Registered Medical Practitioners only and in as much as, the petitioner in the instant case has sold the codeine cough syrups only to an authorized dealer, the penal provisions of the NDPS Act, 1985 cannot be held to have been attracted in the instant case. Inter alia it has been submitted on behalf of the petitioner that he has a wife and two daughters at the verge of a financial breakdown and that he has no previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drugs generally whereas the NDPS Act, 1985 deals with more specific class of drugs and is therefore a special law on this subject but that the provisions of the NDPS Act, 1985 operate in addition to the provisions of the 1940 Act. The observations of the Hon ble Supreme Court in paragraph 35 of the said verdict read to the effect:- 35. In view of our conclusion, the complete analysis of the implications of Section 8015 of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act. 24. The respondent has further submitted that the petitioner has accepted through his voluntary statement recorded under Section 67 of the NDPS Act, 1985 that he did not have any record of the sale/purchase of the narcotics and psychotropic medicines to Sh. Harish Chander proprietor of M/s Shiv Medicos a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars shall be entered:--- (a) the date of sale. (b) the name, address of the licensee to whom sold and his sale licence number. In case of sale to an authority purchasing on behalf of Government, or to a hospital, medical, educational or research institution or to a Registered Medical Practitioner for thepurpose of supply to his patients the name and address of the authority, institution orthe Registered Medical Practitioner as the case may be, (c) the name of the drug, the quantity and the batch number, (d) the name of the manufacturer, [(e) the signature of the competent person under whose supervision the sale was effected.] , and that thus, there had been a total violation in the instant case by the petitioner herein by sale of the capsules of Tramadol containing 205.128 kgs of a psychotropic substance and 300 injections of Pentazocine (containing 300 gram Psychotropic Substance) in violation of the provisions of Rule 65 of Drug and Cosmetic Rules and that there has thus, been a violation of the provisions of Rule 65A of NDPS Rules, 1985. 28. The respondent has further submitted that the petitioner has also purchased a huge amount of narcotics and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use. Reliance in relation thereto has been placed on behalf of the respondent on the verdict of the Hon ble Supreme Court in Mohd. Sahabuddin and Another Vs. State of Assam in CRL.A. No.1602/2012 dated 05.10.2012 to contend that where the requirement of the codeine syrup, being meant for therapeutic practices was not satisfied, in that event the entire quantity of the drug is to be calculated for the purpose of proceedings under the NDPS Act, 1985 and as a consequence thereof, the penal provisions of the NDPS Act, 1985 would prima facie apply. 30. The Central Bureau of Narcotics has contended that the petitioner had procured 406460 bottles of 100 ml each of codeine based syrup containing 40646 Kgs of Narcotic Drug i.e. codeine using his drug licence and for having sold them illegally for trafficking. 31. Reliance was placed on behalf of the petitioner on the verdict of the Hon ble High Court of Allahabad in Ashok Kumar Vs. Union of India and Ors. 2014 SCC OnLine All 16411 to contend that in that case, possession of phensedyl cough syrup containing codeine within the prescribed quantity with licence was held not sufficient to invite the penalties under the NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anship any narcotic drug or psychotropic substance, for as laid down by the Hon ble Supreme Court in Union of India and Anr. Vs. Sanjeev V.Deshpandey (2014) 13 SCC 1 that the provisions of the NDPS Act, 1985 operate in addition to the 1940 Act, i.e., the Drugs and Cosmetics Act, 1940 which deals with various operations of manufacture, sale, purchase etc. of drugs and in terms of Rule 65(5), requires the supply of a drug by wholesale to be made against a cash/ credit memo bearing the name and address of the licencee and its licence number under the Drugs and Cosmetics Act, 1940 in the manner prescribed under Rule 65(5)(i) of the said Rules, which in the instant case has prima facie admittedly not been complied with, in as much as, as laid down by the Hon ble Supreme Court in State of Punjab Vs. Rakesh Kumar in CRL.A. No.1512/2018 (arising out of SLP (CRL) No.4762 of 2018) with CRL.A. No.1514/2018 (arising out of SLP (CRL) No.4816 of 2018), CRL.A. No.1515/2018 (arising out of SLP (CRL) No.4817 of 2018), CRL.A. No.1517/2018 (arising out of SLP (CRL) No.4869 of 2018), CRL.A. No.1516/2018 (arising out of SLP (CRL) No.4818 of 2018), CRL.A. No.1513/2018 (arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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