Hon'ble Zaki Ullah Khan,J.
(Per Uma Nath Singh, J.) We have heard learned counsel for parties and perused the pleadings of writ petitions.
This order shall also dispose of Writ Petition No.21 (H/C) of 2014 as both these matters impugn somewhat identical grievance and raise similar questions of law.
Writ petition No.455 (H/C) of 2013, has been filed with prayers: (i) for issuance of a writ of habeas corpus or a writ, order or direction in the nature of habeas corpus to set the petitioner free forthwith who is illegally detained in pursuance of Arrest Memo dated 18.09.2013, as contained in Annexure No.2; (ii) for issuance of writ, order or direction of appropriate nature declaring the seizure memo and arrest as null and void with direction to release the petitioner from the custody of respondent no.5 forthwith, and (iii) for grant of any other relief, which this Court may deem just and necessary in the facts and circumstances of the case. Besides the above, the petitioner has made the prayer for allowing the writ petition with costs.
Brief facts of the case leading to filing of Writ Petition No. 455 of 2013 (H/C) are that the petitioner is working as Territory Sales Manager in the Trade Management Department under Operation Division of M/s Abott Health-care Private Limited (For short, 'the Company'). His job is only to procure orders from stockists for supply of various pharmaceutical products including PHENSEDYL COUPH SYRUP to them and forward/place the orders to Carry Forward Agents (for short, 'the CFA') of the Company. The petitioner claims to have no any further or other role, and thereafter, the duty of the CFA starts to ensure supply to each Stockist as per their orders by completing necessary formalities like raising of invoice/billing etc. of the products of the Company including the delivery to and receipt of the consignment by the Stockist and collection of cheques/demand drafts/pay orders in the name of the Company. It is also an averment on behalf of the petitioner that at the end of every month, the petitioner in the capacity of Territory Sales Manager receives closing stock and sales statement from every Stockist showing the availability of stocks with them during that month which is forwarded by him as Territory Sales Manager to an outside Agency hired by the Company. The purpose of maintaining closing stock entry is that the Company must have monthly knowledge about the primary sale made to the Stockist through their orders and thereafter the sale of products by them in the market through secondary sale. From such statement, generally, there is no information as to whom an Stockist has sold its product.
The petitioner submits that PHENSEDYL COUGH SYRUP along with other products manufactured by the Company are handed over to the CFA of the Company and the CFA of the Company sells it to various Stockists having Drug License issued by the respective Drug Authorities. The Stockists thereafter sell PHENSEDYL COUGH SYRUP along with other products in the market through sub-stockists or retailers directly and the petitioner has no role whatsoever in the transaction of sale, supply or delivery of PHENSEDYL COUGH SYRUP or other products by the Stockists to its Sub-stockists or Retailers.
In the instant case, the dispute relates to seizure of PHENSEDYL COUGH SYRUP from one M/s Simran Pharma. The drug is sold in the market under two categories i.e. 50 ml and 100 ml quantity. The label affixed on bottles display the details composition including the quantities of various ingredients for preparation of PHENSEDYL COUGH SYRUP. As per label, the SYRUP contains the ingredients, the details of which per 50 ml are as follows:-
1.Codeine Phosphate -10 mg.
2.Chlorophinarmine Maleate -04 mg.
One of the ingredients as contained in PHENSEDYL COUGH SYRUP is Codeine Phosphate which being an opiate is also used for its analgesic and anti-tussive and other medicinal properties.
Sub-clause (b) of Section 2(xi) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act of 1985') defines the ''manufactured drug' as:
"(xi) "manufactured drug" means -
(a).........
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
"35. Methyl Morphine (commonly known as Codeine) and Ethyl Morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 mg of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparation and which have been established in therapeutic practice."
From a perusal of Entry 35 of the above notification dated 14.11.1985 and the label affixed on PHENSEDYL COUGH SYRUP, it is clear that PHENSEDYL COUGH SYRUP does not fall in the category of manufactured drug within the meaning of Section 2(xi) of the NDPS Act of 1985.
As per further averments made in the writ petition the Drug Controller General (India), Directorate General of Health Services, Nirman Bhawan, New Delhi, on 26.10.2005, wrote a letter to all the State Drug Controllers under the subject 'Sale of Cough Linctus' containing Codeine Phosphate as under:-
"Sub: Sale of Cough Linctus Containing Codeine Phosphate-reg.
Sir, As you are aware that there are number of Cough preparations like Corex of M/s Pfizer Limited, Mumbai, Phensedyl of M/s. Nicholas Piramal India Limited, Mumbai, Codokuff of M/s German Remedies, Codeine Linctus of M/s.Zydus Alidac etc. moving in inter state commerce. These preparations contain among other drugs Codeine Phosphate 10mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and its salts do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule H of the Drugs & Cosmetics Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985 however these formulations are prescriptions drugs and are to be dispensed on the prescription of a registered Medical Practitioners only. Further you may be already aware that under notification number S.O. 826 (E) dated 14th Nov. 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted in respect of Codeine under entry no. 35 it is stated that Codeine and Ethyl Morphine and their salts including Dionine all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug dosages unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice.
The above brought to your notice for information and necessary action.
Yours faithfully (ASHWINI KUMAR) Drugs Controller General (India)"
Similarly, another letter was issued in the month of March, 2009 by the Drugs Controller General (India), to all the Associated Chambers of Commerce and Industry of India under the "Request for Clarification of Drug Substance Cough Linctus containing Codeine Phosphate", as follows :-
"Subject: - Request for clarification of drug substance Cough Linctus containing Codeine Phosphate- Regarding Sir, Please refer to your letter no nil dated the 13th March, 2009 seeking clarification as to whether cough preparations containing codeine phosphate 10 mg or less falls under NDPS Act and the Rules or Drugs and Cosmetics Act and the Rules thereunder.
In this connection this Directorate had already issued a circular letter vide our letter number X-11029/27/05-D dated 26/10/2005 to all State Drugs Controllers with a copy of to various associations and Narcotic Control Bureau, New Delhi (copy enclosed). The above circular inter alia stated that these preparations (Cough Linctus containing Codeine Phospahate) contains among other drugs Codeine Phosphate 10mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and its salts they do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule H of the Drugs & Cosmetics Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985, however, these formulations are prescriptions drugs and are to be dispensed on the prescription of a registered Medical Practitioners only.
Further you may be aware that under notification number S.O. 826 (E) dated 14th Nov. 1985 under the Narcotic Drugs and Psychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted. In respect of Codeine under entry no. 35, it is stated that Codeine and Ethyl Morphine and their salts including Dionine, all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug dosages unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice.
Yours faithfully (Dr. Surinder Singh) Drugs Controller General (India)"
A perusal of the notification dated 14.11.1985 issued under Section 2(xi) (b) of the Act of 1985 and the aforesaid two letters of the Drugs Controller General (India) dated 26.10.2005 and March, 2009, and the quantity of ingredients mentioned on the label of PHENSEDYL COUGH SYRUP would clearly show that the Syrup does not fall under the provisions of the NDPS Act of 1985 and the Drugs Rules framed thereunder.
On 26/27.08.2013, the Narcotics Control Bureau raided the premises of one M/s. Simran Pharma, UGF, Shop No.9, New Medicine Market, Aminabad, Lucknow and seized PHENSEDYL COUGH SYRUP and other medicines on the allegation that M/s. Simran Pharma is engaged in illegal trading of PHENSEDYL COUGH SYRUP and other medicines.
Thereafter the Narcotics Control Bureau started investigation and issued notice on 10.09.2013 under Section 67 of the NDPS Act of 1985 to Sri Adil Ali Khan, the Area Sales Manager of the Company summoning him to appear in person on 18.09.2013 at 11.00 AM before the Aasuchna Adhikari, Narcotics Control Bureau, Lucknow. Section 67 of the NDPS Act 1985 which empowers the authorities to call for information etc. reads as:
"67. Power to call for information, etc.--Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any inquiry in connection with the contravention of any provision of this Act -
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry;
(c) examine any person acquainted with the facts and circumstances of the case."
Sri Adil Ali Khan, Area Sales Manager of the Company in compliance of the above notice dated 10.09.2013 appeared before the Aasuchna Adhikari, Narcotics Control Bureau on 18.09.2013.
On 18.09.2013, Sri Adil Ali Khan, the Area Sales Manager of the Company from his Mobile No.9336696552 gave two calls to the petitioner on his Mobile No.9335117307, at about 3.00 pm and 3.13 pm asking him to come to the office of Narcotics Control Bureau at Mahanagar, Lucknow, immediately, when he was sitting there.
On receiving the calls of Sri Adil Ali Khan, the Area Sales Manager of the Company, the petitioner appeared before the Narcotics Control Bureau on 18.09.2013 at about 3.30-4.00 pm. In the office of Narcotics Control Bureau, the Aasuchna Adhikari served the copy of summon dated 18.09.2013 under Section 67 of the Act of 1985 upon the petitioner for his appearance on 18.09.2013 at 16.00 hrs. During interrogation of the petitioner in connection with the raid conducted by Narcotics Control Bureau on 26/27.08.2013 in the premises of M/s. Simran Pharma, it was alleged that the petitioner took some illegal money from M/s. Simran Pharma and the concerned Stockist to ensure supply of PHENSEDYL COUGH SYRUP to M/s. Simran Pharma without any billing or invoices. It is also submitted on behalf of the petitioner that he was forced to put signatures on the statement recorded during the investigation as procured by the Investigating Officer and he was shown to be arrested under Section 8, 21, 27-A, 29 and 80 of the Act of 1985 at 7.45 pm on 18.09.2013. As per the arrest memo, the petitioner voluntarily confessed before the Investigating Officer, Narcotics Control Bureau, that he was involved in the illegal trade sale of PHENSEDYL COUGH SYRUP and other medicines seized from the premises of M/s. Simran Pharma in the raid conducted on 26/27.08.2013. The entire case is based on the confessional statement of the petitioner recorded on 18.09.2013 which at best can be read to show that the petitioner had facilitated the supply of PHENSEDYL COUGH SYRUP from one license holder to another and in the process had made money. According to petitioner even if this statement of fact is assumed to be correct, though it is not admitted, it will not disclose the commission of offence under the NDPS Act of 1985. Even otherwise, the petitioner retracted the above statement before the learned trial court. It is also submitted that the opposite parties filed the confessional statement of the petitioner in the Criminal Misc. Case No.7486 (Bail) of 2013 before this Court. It is also a submission on behalf of the petitioner that his arrest under Section 8, 21, 27-A, 29 and 80 of the NDPS Act of 1985 in furtherance of raid conducted by Narcotics Control Bureau on 26/27.08.2013 in the premises of M/s. Simran Pharma seizing PHENSEDYL COUGH SYRUP and other medicines was pre-planned, illegal and without jurisdiction. The petitioner was called, as mentioned above, in the office of Narcotics Control Bureau at Mahanagar, Lucknow by Sri Adil Ali Khan, the Area Sales Manager of the Company. The petitioner being an innocent person and not being involved in any manner in the illegal trade of PHENSEDYL COUGH SYRUP and other medicines, as alleged in arrest memo, in the bonafide belief approached the office of Narcotics Control Bureau on 18.09.2013 at about 4.00 pm on the call of his superior officer Sri Adil Ali Khan, the Area Sales Manager of the Company.
It is pertinent to mention that PHENSEDYL COUGH SYRUP is being sold in the market for over 40 years which was earlier manufactured by a well known Pharmaceutical Company namely M/s. May & Baker. Thereafter the above business was acquired by M/s. Nicholas Piramal India Ltd. (currently known as Piramal Enterprise Limited) in the year 2000 and eventually the said business has been acquired by M/s. Abbott Health Care Pvt. Limited (the Company) which is manufacturing and selling PHENSEDYL COUGH SYRUP in the market since September 2010.
The petitioner has also submitted that several cough syrups sold under different brand names in the market like Corex, Recodex, Mits Linctus Codeine co etc. contain the same combination like that of PHENSEDYL COUGH SYRUP.
It is also submitted that subsequent to wrongful arrest and detention of the petitioner by the Respondent, this Court in another writ petition filed in respect of the same complaint and seizure memo, being Misc. Bench No.-11066 of 2013, titled Vineet Minocha vs. Union of India and others, has vide order dated November 27, 2013, ordered stay of further proceedings based on the seizure memo.
The Regional Manager of the Company Sri R.D. Mathur also filed a Writ Petition no.8953 (MB) of 2013 in which this Court was pleased to pass interim order on 08.10.2013 and 23.10.2013.
It is also pleaded in the petition that the petitioner has been illegally arrested/detained by the respondents for the alleged commission of offences under the Act of 1985 despite an inherent lack of jurisdiction to investigate the complaint.
Regarding the facts of connected Writ Petition No. 21 (H/C) of 2014 (Anil Jai Singh vs. Union of India and Others), the petitioner therein is in custody since November, 22nd, 2013 having been allegedly detained illegally by the respondents in furtherance of proceedings arising out of a raid conducted by Narcotics Control Bureau vide Crime No. 13/2013 on 02.09.2013 at the premises of one M/s Yes Traders which is in the name of Mr. Mukesh Kumar, situated at L.D.A. colony, Kanpur Road, Lucknow wherein Recovery/Seizure of drugs in question was effected vide Memo dated November 2, 2013. It is alleged that the proceedings initiated against the petitioner under Narcotics Act, 1985 are ex-facie without jurisdiction and bad in law. On account of the illegal detention of the petitioner, his right to life and liberty as enshrined under Article 21 of the Constitution of India has been violated and he continues to be deprived of his personal liberty without there being any justification or basis for the same. Taking assistance of Section 67 of the NDPS Act, which as submitted above is not at all applicable, a statement was recorded of one Vicky alias Baba. On the basis of the said statement, the petitioner was arrested in purported exercise of powers conferred under the NDPS Act, although even the said statement did not remotely implicate the petitioner. That apart the proceedings initiated under the NDPS Act being without jurisdiction, cannot be sustainable in law much less to invite the incarceration of the petitioner. It is significant to mention here that the petitioner has been falsely implicated in this case due to business rivalry and for the reason that the petitioner had refused to succumb to the illegal demands of respondent nos. 2 and 3. Besides, there is political vendetta as well on account of which maneuvering were done. The petitioner is Elected General Secretary of the Lucknow Chemist & Druggist Medicine Association of Lucknow and as such was taking care of all the members against whom the N.C.B. officers were creating problems, and as such, to teach a lesson to the petitioner, he has been put behind bars/arrested without any reason and in a grossly illegal manner by misapplying the provisions of NDPS Act.
In the averments of writ petition there is a reference to the Drugs & Cosmetics Act, 1940 (for short, ''the Act of 1940'), and the Drugs & Cosmetics Rules 1945 (for short, ''the Rules of 1945'). According to the petitioner, amongst the provisions of Act of 1940 and Rules of 1945, the ones that regulate the manufacture, distribution and sale of medicinal drugs are Rule 97 and Rule 104 etc. whereas Rule 65 prescribes the general condition for licenses in Forms 20, 20A, 20B, 20F, 20G, 21 and 21B. Moreover Section 80 of the NDPS Act of 1985 does not bar the applicability of provisions of Act of 1940, which reads as:
"The provisions of this Act or the rules made there under shall be in additional to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder."
However, it is submitted that Section 80 of the Act of 1985 would be applicable only in those cases where the products are covered under both the Acts, i.e. the Act of 1985 and the Act of 1940, but in the present case, the provisions of the Act of 1985 are not applicable at all, but it would be covered under the Act of 1940 only.
From the Scheme of the Act of 1940 and the Rules 1945, it is clear that Phensedyl is a prescription drug 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) would suggest that possibly a drug falling within the meaning of the Act of 1940 and the Rules of 1945, and particularly the one falling under Schedule 'H' can also fall within the purview of the Act of 1985. If it is so, the manufacturer is duty bound to place the symbol NRx in red on the top left corner of the label.
Section 8 of the NDPS Act of 1985 shows that no person shall possess any narcotic drug except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act of 1985 or the Rules of 1985 or orders made there under. Section 8 of the Act of 1985 reads as:
"8. Prohibition of Certain operations. - No person shall--
(a) cultivate any 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 where any such provision, imposes any requirement by way of license, permit or authorisation also in accordance with the terms and conditions of such license, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import interstate and expert interstate of 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 of the Act of 1985, which is the prohibitory provision as it deals with narcotic drugs, prohibits the manufacture, possession, sale, use etc., of any psychotropic substance "except for medical or scientific purposes and in the manner and to the extent" provided by the provisions of the Act of 1940 and the Rules of 1945 or Orders made there under. It means that while there is a general prohibition against the manufacture, possession, sale, use etc., of a psychotropic substance, if the same is a medicine and is to be used for a medical purpose, then the manner and extent of its manufacture, possession, sale, use shall be as provided in the Act of 1940 and the Rules of 1945 or Orders made there under.
Phensedyl Cough Linctus, is a Scheduled Drug within the meaning of the Act of 1940 and the Rules of 1945. Its manufacture, sale, etc. is regulated by the Act of 1940 and the Rules of 1945. The prohibition contained in Rule 37 of the NDPS Rules 1985 applies only to those narcotic drugs that are specified in the list published under Section 2 (xi)(b) of the NDPS Act of 1985. In other words, the prohibition of Rule 37 of the NDPS Rules of 1985 in not applicable to those manufactured synthetic drugs that are not listed in the said list.
The Scheme of the Act of 1940 and the Rules of 1945 makes it clear that the Phensedyl is a prescription drug 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 of the Rule of 1945 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 Act of 1940 and the Rules of 1945 and particularly the one falling under Schedule 'H' can also fall within the purview of the Act of 1985. That being so, the manufacturer is duty bound to place the symbol NRx in red on the top left corner of the label.
The manufacture, distribution, sale etc., of any drug which are not prohibited under the NDPS Act of 1985 shall be in accordance with the conditions of license granted under the Act of 1940 and the Rules of 1945.
It is asserted in the writ petition that the medicines seized in the present case come within the purview of Schedules G and H of the Rules of 1945. It is also asserted that the medicine seized does not fall within the prohibited drugs as notified under Section 2(xi)(b) of the Act of 1985 read with Rule 37 of the Rules of 1985. It does not find place also in Schedule 1 appended to the Rules of 1985. Section 8 of the Act of 1985 and the Rules of 1985 contain a prohibitory clause, violation whereof would result in to penal offences there under. If the said drugs do not find place in Schedule 1 appended to the Rules of 1985 or the notified items under Section 2(xi)(b) of the NDPS Act of 1985 then it will not be hit by prohibitions contained in Section 8 of the Act of 1985 or Rule 53 (General Prohibition)or Rule 37 manufacture of manufactured drugs or any other prohibition contained under the Act.
It is submitted that since PHENSEDYL COUGH SYRUP is a Schedule 'H' drug under the Rules of 1945, therefore, the same cannot be sold from the Chemist shop without prescription of a registered medical practitioner, because it contains a very small fraction of Codeine Phosphate but that quantity of Codeine Phosphate does not make PHENSEDYL COUGH SYRUP, a product to be brought within a purview of the NDPS Act of 1985.
It is submitted that the fundamental right guaranteed under Article 21 of the Constitution guaranteed to the petitioner are being infringed by the respondents by his wrongful detention. The respondents have no jurisdiction to proceed against the petitioner under the provisions of the NDPS Act of 1985 and the Rules framed thereunder as PHENSEDYL COUGH SYRUP is a Schedule 'H' drug covered under the provisions of the Act of 1940 and the Rules of 1945.
It is further submitted that if some Stockist sells PHENSEDYL COUGH SYRUP without any medical prescription by a registered Medical Practitioner to anybody, the petitioner cannot be deemed to be involved in illegal trade of PHENSEDYL COUGH SYRUP or have committed any offence under the provisions of the Act of 1985, and at best the offence, if any, committed by Stockist or sub-Stockist would fall only under the provisions of the Act of 1940 and the Rules of 1945. It is also submitted that the alleged violations under the Act of 1940 are non-cognizable and bailable and, therefore, the detention of the petitioner under the Act of 1985 is illegal and without jurisdiction and also in violation of the provisions of Article 21 of the Constitution.
The petitioner further submitted that from the perusal of Sections 8, 21, 27-A, 29 and 80 of the Act of 1985, it would be evident that none of the ingredients of the offences contained in these Sections can be attracted for the sale of Schedule 'H' drugs i.e. PHENSEDYL COUGH SYRUP under the provisions of the Act of 1940 and the Rules of 1945 framed thereunder.
The fundamental right guaranteed under Article 21 of the Constitution to the petitioner has been infringed by the illegal detention of petitioner under the provisions of Section 8, 21, 27-A, 29 and 80 of the Act of 1985. The provisions of the Act of 1985 or the Rules framed thereunder are not applicable in the case of PHENSEDYL COUGH SYRUP which is a Schedule 'H' drug under the provisions of the Act of 1940 and the Rules of 1945 framed thereunder.
The petitioner has also preferred the Bail Application No. 7486 (Bail) of 2013 before this Court.
The Act of 1985 was enacted with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived therefrom, or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. The same can in no manner be used to illegally detain the petitioner in the present case.
The petitioner has also submitted that filing of bail application No. 7486 (Bail) of 2013 in the High Court and its pendency does not preclude the petitioner to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution to consider the question of illegal detention of the petitioner under the Act of 1985 and the enforcement of his fundamental right guaranteed under Article 21 of the Constitution.
The petitioner also undertakes to comply with such orders or directions for his release as an interim measure on bail or otherwise which this Court may deem fit and proper in the facts and circumstances of the case.
Thus, according to petitioners, they have been illegally detained by applying the provisions of Sections 8, 21, 27-A, 29 and 80 of the NDPS Act of 1985 as also the provisions of Rules framed thereunder, because the provisions would not apply in the case of PHENSEDYL COUGH SYRUP, a Schedule ''H' drug. Schedule ''H' drugs are to be covered only under the provisions of the Act of 1940 and the Rules of 1945 framed thereunder, with particular reference to Rule 97 thereof. Recoveries of PHENSEDYL COUGH SYRUP were made from a valid licence holder under the provisions of the Act of 1940. The business transactions took place between two licence holders, therefore, no offence whatsoever under the NDPS Act of 1985 was constituted. The quantity of ingredients, particularly, Codeine Phosphate would not bring this product into the purview of the NDPS Act of 1985. A notification to that effect dated 14.11.1985 has also been issued under Section 2 (ix) (b) of the NDPS Act of 1985.
Schedule ''H' drugs under the Act of 1940, are neither a controlled substance within the meaning of Section 2(vii-d) of the NDPS Act of 1985, nor a manufactured drug within the meaning of Section 2(xi), or a narcotic drug within the meaning of Section 2 (xxiii) of the Act of 1985.
Thus, the Narcotic Bureau has no jurisdiction to proceed against the petitioners under the provisions of the NDPS Act of 1985 and the Rules framed thereunder.
Thus, detention of petitioners under the provisions of NDPS Act of 1985 is illegal being in violation of the provisions of Article 21 of the Constitution.
The caption 'Therapeutic Practice' used in Entry 35 of Notification dated 14.11.1985 under the NDPS Act of 1985 and Rules framed thereunder only relates to amount of doses per unit and not with particular reference to Codeine or Phensedyl. It is also not an allegation that the amount of doses as prescribed for Phensedyl was not in consonance with the prescription of Therapeutic Practice.
Phensedyl Cough Linctus is a Schedule Drug within the meaning of the Act of 1940 and the Rules of 1945 framed thereunder. Thus its manufacture, sale, etc. are regulated only by the said provisions. The prohibition as contained in Rule 37 of the NDPS Rules of 1985 would apply only to such narcotic drugs that are specified in the list published under Section 2 (xi)(b) of the Act of 1985. Thus the prohibition of Rule 37 of the Rules of 1985 is not applicable to those manufactured synthetic drugs that are not listed in the said list.
The medicines in question seized from the licensee fall within the purview of schedule ''G' & ''H' of the Rules of 1945. The medicines seized do not fall within the prohibited drugs. It is not mentioned in Schedule 1 appended to the Rules of 1985.
Section 8 of the NDPS Act of 1985 and Rule 53 of the NDPS Rules of 1985 contain a prohibitory clause. Violation of such clauses leads to commission of penal offences. Thus, drugs which do not find mention in Schedule 1 appended to the NDPS Rules of 1985 or notified items under Section 2 (ix)(b) of the NDPS Act of 1985, then it will not be hit by the provisions as contained in Section 8 of the NDPS Act of 1985 or Rule 53 or Rule 37 or any other prohibition contained in the Act.
There are other cough syrups like Corex, Recodex, Mits Linctus Codeine etc. also contained the same combination like PHENSEDYL COUGH SYRUP.
It is also reiterated that filing and pendency of Bail Application No. 7486 (Bail) of 2013 does not preclude the petitioners to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution questioning the illegal detention of the petitioner under the NDPS Act of 1985 and enforcement of his fundamental right guaranteed under Article 21 of the Constitution.
On the other hand, it has been submitted on behalf of Narcotics Control Bureau that Writ Petition No.21 (H/C) of 2014, is not maintainable because petitioner is lodged in judicial custody by a judicial remand order passed by a court of competent jurisdiction after his production before the court.
Vide Government Notification dated 23.05.2013, manufacture, sell and distribution of ''Dextropropoxyphene' which is used for manufacturing Spasmoproxyvan Capsules, Spasnocip Capsules, was suspended. Thereafter, on a secret information received on 26.08.2013, in the office of Zonal Director Narcotics Control Bureau, which was also reduced to writing in NCB Form-1, at about 3.30 p.m. the same day, the godown/medicines shop of M/s Simran Pharma owned by one Baljit Singh was searched. During the raid raid, as many as 10950 bottles of Phensedyl Syrup containing codeine, 108072 Spasmoproxyvan Capsules, 504000 of Spasnocip Plus Capsules along with cash of Rs.52, 49,000/- were recovered, for which no document could be shown by the owner of the shop, namely, Mr. Baljit Singh. The statement of Mr. Baljit Singh was recorded in exercise of powers conferred under Section 67 of the NDPS Act of 1985 in which he confessed his guilt. Accordingly, he was taken into custody and was produced before Additional Sessions Judge, Lucknow, along with records, which granted remand and the bail application of accused Baljit Singh was rejected by the trial court.
On 02.09.2013, another information of illegal trading of the aforesaid medicines by Vicky @ Baba and Mukesh Kumar was received in the office of Zonal Director, NCB, that was also recorded in NCB Form-1. The same day, the raid was conducted in the godown of M/s Yash Traders and recovery of 10700 bottles of Phensedyl Cough Syrup; 1070080 Spasmoproxyvan capsules and 100800 Spasnocip Plus capsules with the cash of Rs.23,550/- was made. Statement of Vicky @ Baba was recorded who failed to produce any document regarding sale and purchase of the aforesaid medicines. His involvement was found established in the crime, as such he was taken into custody and produced before the Additional Sessions Judge, Lucknow along with records where the judicial remand was granted. His bail application was also rejected. Now the matter is pending before this Court. On 20.11.2013, real maternal uncle of accused Vicky @ Baba, namely, Mukesh Kumar whose godown was used for storage of the medicines without any document, was also found involved in the crime. As such, after recording his statement, he was taken into custody and was produced before the trial judge, who granted him judicial remand. He is also in jail and his bail application was rejected by the Court of Sessions. His bail application is now pending before this Court.
On 09.10.2013, involvement of accused Anil Jai Singh came into light in the statement of Vicky @ Baba, as such, summons were issued to him requiring his appearance in the office of Narcotics Control Bureau on 22.10.2013 for the purposes of recording statement in which he failed to appear.
On 31.10.2013, again another notice was issued to Anil Jai Singh for his appearance on 07.11.2013. However, he appeared earlier i.e. on 05.11.2013. His statement was recorded in which he promised to produce the documents relating to transactions and business of Phensedyl Syrup by 12.11.2013. He appeared on 12.11.2013, but failed to supply any document and promised again to produce it on 16.11.2013 but on that date he did not appear. As such, on 22.11.2013, his statement was recorded at his residence but he again failed to supply any document relating to sell, purchase, possession and business of Phensedyl Syrup. Therefore, he was arrested on the same day and supplied the grounds of arrest. The information relating to his arrest was given to his wife Smt. Kiran Singh on the same day which was received by her. He was also produced before the Additional Sessions Judge, Lucknow, along with all the documents and has been granted judicial remand, His bail application was also rejected. His confessional statement regarding involvement in the crime is also on record.
The basic provisions which empower the Narcotics Bureau to conduct the raid is said to be the Notification dated 23.05.2013 which says that any medicine containing Dextropropoxyphene is offence under N.D.P.S. Act 1985, which the petitioners have been found to have committed. Rules of 1945 deals with the licence relating to Schedule-H and Schedule-X drugs. Rule 66 (a), Rule 10 and Rule 11 of 1945 Rules deal with conditions for licence of drugs specified in Schedule H and Schedule X medicines. Rule 65 (9)(a) provides as:
Rule 65 (9)(a) - Substances in Schedule H or Schedule X shall not be sold by retail except on and in accordance with the prescription of a Registered Medical Practitioner and in the case of substances specified in Schedule X, the prescriptions shall be in duplicate, one copy of which shall be retained by the licensee or a period of two years.
(a) The supply of drugs specified in Schedule H or Schedule X to Registered Medical Practitioners, Hospitals, Dispensaries and Nursing Homes shall be made only against the signed order in which shall be preserved by the licensee or a period of two years.
(10) For the purpose of clause (9), prescription shall:
(a) be in writing and be signed by the person giving it with his usual signature and be dated by him;
(b) specify the name and address of the person for whose treatment it is given, or the name and address of the owner of the animal, if the drug is meant for veterinary use;
(c) indicate the total amount of the medicine to be supplied and the dose to be taken.
(11) The person dispensing a prescription containing a drug specified in Schedule H shall comply with the following requirements in addition to other requirements of these Rules-
(a) the prescription must not be dispensed more than once unless the prescriber has stated thereon that It may be dispensed more than once;
(b) if the prescription contains a direction that it may be dispensed a stated number of times or as stated intervals it must not be dispensed otherwise than in accordance with the directions;
(c) at the time of dispensing there must be noted on the prescription above the signature of the prescriber, the name and address of the seller and the date on which the prescription is dispensed.
Rule 97 (b) and (c) of the Rules of 1945 only deal with storage of medicines by a licensee specified in Schedule H, which read as:
Rule 97(b) - if it contains a substance specified in Schedule H be labeled with the Symbol Rx and conspicuously displayed on the left top corner of the label and be also labeled with the following words:
"Schedule H drug - Warning: To be sold by retail on the prescription of a Registered Medical Practitioner only."
(c) if it contains a substance specified in Schedule H and comes within the purview of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) be labeled with the symbol NRx which shall be in red and conspicuously displayed on the left top corner of the label, and be also labeled with the following words:
"Schedule H drug - Warning: To be sold by retail on the prescription of a Registered Medical Practitioner only."
Schedule H requires compliance of Rules 65 and 97 of the Rules of 1945 in so far as they being "prescription drugs" are mentioned at Serial Nos. 132 and 146 respectively, as Codeine and Dextropropoxyphene.
According to Narcotics Bureau, there may be medicines for the business for which the licence may be granted, but those medicines also fall within the ambit of NDPS Act of 1985. Any person, who is found to be unlawfully dealing with these medicines in violation of the licence granted to him, is liable to be punished under the NDPS Act of 1985.
Section 8 of Chapter III of the NDPS Act of 1985 deals with prohibition, control and regulation.
Prohibition of certain operations as contained in Section 8, reads as- "No person shall
(a)....
(b)....
(c) Produce, manufacture, possess, sell, purchase, transport, wherehouse, use, consume, import inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientfic purposes and in the manner and to the extent provided by the provisions of this Act or the rules made thereunder and in case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization."
The punishment for offence is provided under Section 21 of the NDPS Act of 1985. Moreover, the question as to whether offence has been committed in respect of small quantity, medium quantity or commercial quantity, can be looked into during the course of trial. Moreover, Section 80 of NDPS Act of 1985 also provides that the provisions of this Act or Rules made thereunder shall be in addition to and not in derogation of the Drugs and Cosmetics Act, 1940 or the Rules framed thereunder.
On due consideration of rival submissions, it appears that petitioner Ashok Kumar was arrested on the allegation that he accepted money to supply PHENSEDYL COUPH SYRUP to the pharmacist company, namely, M/s Simran Pharma, a licensee, without billing or invoice, which was not within the ambit of his duties as Territory Sales Manager. The plea taken on his behalf is that even if he accepted money for supply then it was a supply from one licence holder to another, therefore, it does not constitute an offence. On the other hand, the Narcotics Control Bureau has taken the plea that the said drug was banned by the Notification published in the Gazette of India on 14.11.1985 in exercise of powers under Sub-clause (b) of Clause (xi) of Section 2 of the NDPS Act of 1985. Regarding the other Writ Petitioner Anil Jai Singh, his name is said to have appeared in the confessional statement of main accused Vicky alias Baba.
If we go to the applicability of the provisions of NDPS Act of 1985, with particular reference to Section 80 thereof, prior to enactment of the NDPS Act, 1985 and its enforcement on 14.11.1985, certain operations, such as manufacture, distribution, purchase, sale etc. in respect of psychotropic substances, were regulated under the Drugs and Cosmetics Act, 1940 and the rules made thereunder. The control measures exercised on the aforesaid operations under that Act were from the quality angle only. The punishments for violations of the provisions of the Drugs and Cosmetics Act were mild. Since the NDPS Act of 1985 was intended to make stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances and to implement the provisions/resolutions of the International Conventions, especially that of the 1971 Convention on Psychotropic Substances, it was considered necessary to provide the same regime of control for the psychotropic substances as provided for the narcotic drugs. The Drugs and Cosmetics Act, 1940 only regulated some of the operations in respect of about 24 psychotropic substances covered under that Act, therefore, a recourse to go in for a referential legislation was made by adding certain provisions in the rules which were not available in the Act of 1940 and the Rules of 1945 made thereunder. The schemes of penalty and other procedures relating to import, export and transshipment of narcotic drugs and psychotropic substances are almost the same. Moreover, the directions contained in Section 80 of the NDPS Act, 1985 envisage that the provisions of this Act or the Rules made thereunder shall be in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 or the rules made thereunder. None of the provisions relating to the psychotropic substances is repugnant in any manner to Drugs and Cosmetics Act, 1940. In respect of about 50 psychotropic substances which are not manufactured, traded or used as medicines or drugs under the Drugs and Cosmetics Act, 1940 in India, a general prohibition on their manufacture, possession, transportation, import inter-State, export inter-State, sale, purchase, consumption or use, has been imposed.
The import and export of psychotropic substances appearing in Schedule-I of the NDPS rules have also been prohibited. Necessary control on possession etc. of such substances for which no provision is available in the Drugs and Cosmetics Act, 1940 has been incorporated in the NDPS rules.
The difference between Drugs and Cosmetics Act, 1940 and NDPS Act, 1985 seems to be that the provisions of the Drugs and Cosmetics Act deal with medicinal and therapeutic use. They regulate licensing and quality operation whereas the NDPS Act, 1985 deal with Drug Trafficking and also the impermissible quantity of Psychotropic and Narcotic substance in the consignments of medicines of suspicious nature which may become illegal under the provisions of NDPS Act, 1985 in absence of requisite explanation and documents to support even if it is claimed to be a scheduled drug under Schedule ''G' and ''H' as referred and discussed hereinabove. There is imposition of complete ban on dealing in Narcotic Drugs and Psychotropic Substances by all persons except a licensed Dealer or a licensed chemist. However, the licensed dealer/ chemist can also come within the regime of control under the provisions of NDPS Act, 1985 and the Rules made thereunder if they failed to produce requisite permission and explanation to justify the possession of excess quantity of Narcotic Drugs and Psychotropic Substances.
Regarding the meaning of Drugs Trafficking, the NDPS Act of 1985 vide Section 2 sub-section (viiia) has only defined ''illicit traffic' in relation to Narcotic Drugs and Psychotropic Substances as:
"(i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant;
(iii)engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter State, export inter-State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances;"
We have also tried to find out parallel provisions in the Law of other countries regarding meaning of drugs trafficking/ traffickers. The one that can be said to have wider meaning of the drugs trafficking/ traffickers than what is contained in the NDPS Act, 1985, is the Law of the Republic of Nicaragua called Narcotic Drugs and Psychotropic Substances and other Controlled Substances Act of the Republic of NICARAGUA.
CHAPTER VII of the Act deals with OFFENCES AND PENALTIES and some of such provisions being relevant, though not exactly, can be extracted as:
Article 50.
Any persons who store narcotic drugs, psychotropic substances or other controlled substances without lawful authorization shall be liable to ordinary imprisonment from three to twelve years and a fine of between five thousand and fifty thousand córdobas.
Article 52.
Any persons who aid or abet the consumption or sale of narcotic drugs, psychotropic substances or other controlled substances or who induce others to do so shall be liable to ordinary imprisonment from one to five years.
Article 53.
Any person who without authorization from the Ministry of Health prescribes, supplies, dispenses or administers substances forming the subject of the present Law shall be liable to rigorous imprisonment from three to ten years and specific disqualification for the period of the sentence, according to the severity of the unlawful act committed.
Article 55.
The penalty shall be increased up to twice its amount but without exceeding the maximum penalty:
(a) .....
(b) .....
(c) .....
(ch) .....
(d) .....
(e) .....
(f .....
(g) If senior officials of the State authorities or municipalities, autonomous regional councils or police or military authorities are involved in the commission of such offences;
Article 57.
A civil servant, public employee or official responsible for the investigation, trial or custody of persons involved in serious or minor offences under the present Law who arranges for the offender to evade punishment, or for the concealment, alteration or removal of items or substances seized, or facilitates the escape of an arrested, detained or sentenced person, or alters or causes the alteration of the corpus delictishall be liable to ordinary imprisonment from three to twelve years and specific disqualification for the period of the sentence.
Article 61.
Any person who without authorization manufactures, transports, stores or holds in his possession precursors, chemicals, solvents or other substances for the purpose of using them in the processing of narcotic drugs, psychotropic substances or controlled substances shall be liable to ordinary imprisonment from one to five years.
Article 63.
Any persons who without authorization acquire, transfer on whatsoever basis, distribute, sell, barter, dispense, or in any other way market narcotic drugs, psychotropic substances, controlled substances, or seeds or plants from which such substances are extracted or produced, shall be liable to rigorous imprisonment from five to twenty years and a fine of between twenty thousand and five hundred thousand córdobas.
Article 64.
Any persons who with full knowledge of the facts supply property of any kind for the purposes of storing, producing, manufacturing or processing narcotic drugs, psychotropic substances or controlled substances or supply means for their transport shall be liable to ordinary imprisonment from three to twelve years, a fine of between five thousand and fifty thousand córdobas and, if applicable, confiscation of the movable property employed.
Any persons who with full knowledge of the facts provide premises of any kind for the purpose of consumption therein of narcotic drugs, psychotropic substances or controlled substances shall be liable to ordinary imprisonment from one to three years, without prejudice to any penalties applicable in respect of other, concurrent offences. In the case of a commercial establishment, such premises shall be immediately closed if it is established that they are habitually used for the aforementioned unlawful purposes.
Almost all such statutes have their origins only in the resolutions and /or covenants of International Conventions convened to set up stricter regime of control over illegal trafficking in Narcotic Drugs and Psychotropic Substances. It is also relevant to refer to the observations made in judgment of Hon'ble the Apex Court rendered in Criminal Appeal No. 1602 of 2012 (Sahabuddin & Anr vs. State of Assam) dated 5.10.2012. Paras 11, 12, 13 and 16 of the judgment, having bearing on the issues, read as:
Para 11- It is not in dispute that each 100 ml. bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg. of codeine phosphate and the each 100 ml. bottle of Recodex cough syrup contained 182.73 mg. of codeine phosphate. When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.
Para 12- The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml. bottle if related to the permissible dosage, namely, 5 ml. would only result in less than 10 mg. of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14.11.1985 and 29.1.1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per does unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means ''contributing to cure of disease'. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent.
"Para-13. As pointed out by us earlier, since the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule ''H' drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml. content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the N.D.P.S.Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the above referred to notifications, the application of the exemption provided under the said notifications in order to consider the appellants' application for bail by the Courts below does not arise.
Para 16- When we refer to the decisions relied upon by the learned counsel for the appellants, we find that none of the facts relating to those decisions are paralled to the facts of the present case. Those are all cases which were related to the persons who had valid licences and in the course of their regular business transaction when they were dealing with the pharmaceutical products which contained the prescribed permitted content of narcotic substance and when they were proceeded against for violations, the relief came to be granted in their case. We do not, therefore, find any scope to apply any of the ratios of those decisions to the facts of this case."
In the above judgment under reference, in absence of valid documents, the requirements of Drugs and Cosmetics Act, 1940 or that of provisions of NDPS Act, 1985, as the case may be, were not found to be fulfilled. The appellants therein were not in position to explain as to, for whom the supply was meant: whether it was for distribution or for licensed dealer dealing in pharmaceutical products. Thus, for failure to provide valid explanation for effecting the transportation of a huge quantity, beyond the prescribed limit, of the Cough Syrup which contained the Narcotic Substance of codeine phosphate, the court was pleased to repel and reject the arguments for grant of bail. The contents of narcotic substance should satisfy the tripod conditions, namely, that it is not more than 100 mg. codeine per dose unit, that it has a concentration of not more than 2.5% in undivided preparation, and that it should be used only for a therapeutic practice. Dictionary meaning of ''Therapeutic practice', as noticed in the judgment of Hon'ble the Apex Court, is like: ''contributing to cure of disease'. In other words, the assessment of codeine content on dosage basis can be made only when the Cough Syrup is definitely kept or transported exclusively for its usage to cure a disease as an action of remedial agent.
Besides, as per the Narcotic Drugs and Psychotropic Substances Control Laws of other countries the ''Therapeutic dose' also means;
"The quantity of a drug or medicinal product prescribed by a physician in accordance with the clinical needs of his patient."
In view of the fact that there was no satisfactory explanation as regards the possession of Phensedyl Cough Syrup, Spasmoproxyvan capsules and Spasnocip Plus capsules in huge quantity; that there is allegation of illegal earning against petitioner Ashok Kumar without raising bills or invoice for payment against supply of the alleged contraband medicines; that petitioner Anil Jai Singh is said to have been connected with offence in terms of the confessional statement of co-accused; that the veracity of confessional statements taken by Narcotic Control Bureau, in the obtaining facts and circumstances of the case can be tested only in criminal proceedings/trial, and that the drugs in question, said to be scheduled drugs, if recovered from the licence holders in excess quantity, can prima facie constitute the offences charged with, the proceedings of Habeas Corpus may not be warranted.
Thus, for the foregoing discussions, it cannot be said that a prima facie case of illegal detention is made out so as to call for issuance of a writ of Habeas Corpus. Moreover, when both parties have raised disputed questions of facts and law, this Court is not supposed to go into the merit of case in exercise of powers of writ jurisdiction. We have also been informed by learned counsel for Narcotics Control Bureau (Smt. Shikha Sinha) in writing that the Bureau has put up charge sheets against the accused persons. Besides, the scope of Drugs and Cosmetics Act, 1940 and the Rules made thereunder is limited, whereas that of NDPS Act, 1985, and the NDPS Rules is wider. The provisions of NDPS Act, 1985 are in addition to, and not in derogation of the provisions of Drugs and Cosmetics Act, 1940. The control measures exercised under the Drugs and Cosmetics Act, 1940 were from the quality angle only, whereas provisions of NDPS Act, 1985 incorporated for the control and regulation of operations relating to narcotic drugs and psychotropic substances are stricter and have been designed to implement the provisions of International Conventions, specially the Convention of Psychotropic Substances, 1971.
In addition thereto, it is an admitted fact that the petitioners have filed applications for regular bail before this Court. Thus, instead of pursuing these writ petitions, with prayers for issuance of writ of Habeas Corpus, and release of petitioners on bail with undertaking to comply all the conditions which this Court or trial court may deem fit and proper to impose, it would be appropriate for the petitioners to raise all these arguments in regular criminal proceedings, be that a trial, or application for quashment of impugned proceedings under Section 482 Cr.P.C., or application for regular bail, or revision against the framing of charges.
Thus, we are not inclined to entertain the petitions. Hence, both these writ petitions [Writ Petition No. 455 (H/C) of 2013 and Writ Petition No. 21 (H/C) of 2014] are hereby dismissed. However, we may clarify that the observations made hereinabove, shall not be treated as observations of this Court on merit, lest it may cause prejudice to case of either of the parties. Moreover, the original records of the case said to have been summoned from the lower court, be returned forthwith. (Zaki Ullah Khan, J.) (Uma Nath Singh, J.) Order Date :- 01.07.2014 anb/Irfan/A. Katiyar/Rizvi Judgment pronounced under Chapter VII Rule 1 sub rule 2 of High Court Rules today. (Zaki Ullah Khan, J.) 01.07.2014