1.This petition filed under Section 482 of the Code of Criminal Procedure prays for quashing proceedings in Complaint Case No.20 of 2014 under Sections 8, 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act') and also order dated 10th of March, 2014 (Annexure-2) passed by VIIIth Additional District and Sessions Judge, Lucknow, by means of which charges under Sections 8, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 have been framed. The petition also prays for stay of further proceedings in the said complaint case.
2.Sri Sanjeev Puri, learned Senior Advocate, assisted by Sri Vikas Singh, Advocate, in brief, has argued that Phensedyl, a drug under the Drugs and Cosmetics Act, 1940, was recovered from the premises of a licenced stockist, namely M/s Simran Pharma, owned by Baljit Singh, co-accused. Allegation against the petitioner, who is a Territory Sales Manager for Manufacturer of the Drug, Abbott Healthcare Pvt. Ltd., is that he entered into a conspiracy for supply of the said drug.
3.Learned counsel at the first instance has argued that Phensedyl is not a narcotic substance, as defined under N.D.P.S. Act 1985. So as to support the said contention, learned counsel has referred to Annexure-6 (Page 113 of the paper book), which has been issued by Health and Welfare Department, Baddi, Himanchal Pradesh, and depicts list of products to be manufactured by the manufacturer, namely Abbott Healthcare Pvt. Ltd. At serial No.13 of the list, Phensedyl New Cough Linctus, has been shown, of which composition is as under:
"Each 5 ml contains:
Codeine Phosphate IP 10 mg Chlorpheniramine Maleate IP 4 mg In a flavoured syrupy base Colour: Caramel IP"
It has been pointed out in this context that a dosage of 5 ml would contain Codeine Phosphate IP 10 mg and another substance 4 mg.
4.Learned counsel has further referred to Central Notification issued under Section 2 of the N.D.P.S. Act (page 104, 107 of the paperbook, Annexure-5), which provides the list of narcotic substances and preparations. At serial No.35 of the list the following has been provided:
"(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 milligrams of the drug per dosage unit and with a concentration not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice." (Emphasis supplied by me.)
5.Learned counsel has argued that in description of the substance, various clarificatory circulars have been issued by Durgs Controller General (India), Directorate of General Health Services addressed to State Drug Controller. Annexure-7 dated 26.10.2005 specifically states that a number of cough preparations contain, among other drugs, Codeine Phosphate 10 mg. 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 N.D.P.S. Act and Rules of 1985, but they fall under Schedule 'H' of the Drugs and Cosmetics Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of N.D.P.S. Act and Rules 1985, however, these formulations are prescription drugs and are to be dispensed on the prescription of a Registered Medical Practitioner only. In the said order, reliance has been placed on Entry 35 under N.D.P.S. Act, referred to above. The said documents dated 26.10.2005 and March 2009 have been placed on record as Annexure-7 & 8 (pages 114 and 117 respectively).
6.Learned counsel has also referred to Annexure-3 (collectively) which are licences issued to M/s Simran Pharma, Proprietor Baljit Singh, co-accused, to sell, stock or exhibit or offer for sale or distribute by wholesale, drugs other than those, specified in Schedule 'C' 'C(1)' and 'X'. (Refer Page 82 to 86 of the petition).
7.In the contention of the learned counsel, it appears that the premises of Simran Pharma, the stockist were raided. At the licenced premises, heavy stock of 10950 bottles of Phensedyl was recovered. The impugned complaint further indicates that the petitioner is alleged to have conspired in supply of the said drug.
8.Allegedly, the petitioner gave statement to the officer from Narcotic Bureau conducting raid, admitting the said fact. In the contention of Sri Puri, the statement was retracted soon thereafter and, therefore, is not admissible.
9.Be that as it may, Sri Puri, Learned Senior Advocate, has argued that Phensedyl is a substance covered under the Drugs and Cosmetics Act, as is evident from documents (Annexures 6, 7 and 8), referred to above. It is not a narcotic substance, as would be evident from document (Annexure-5), also referred to above, and therefore no prosecution can be initiated for possession of Phensedyl.
10.It has been argued that in this specific case, bottles of Phensedyl were found in the possession of a licenced stockist in licenced premises of the co-accused, who allegedly could not show any document to corroborate purchase of Phensedyl with available stock in his premises. The petitioner is neither stockist nor any such substance has been found in his possession and, therefore, sofar as the petitioner is concerned, the case is different from the case of the co-accused.
11.Supplementary affidavit has been filed in Court today, which is taken on record. Annexure 4 appended with the supplementary affidavit is an order passed in a case under Section 482 of the Code of Criminal Procedure bearing Case No.2107 of 2014 entitled 'Baljit Singh (co-accused) v. Union of India (N.C.B.)', wherein notice has been issued to the respondent and further proceedings in this case as against the co-accused have been stayed.
12.In the contention of learned counsel, the case of the petitioner is on better footing and, therefore, the petitioner is also entitled to the same relief.
13.Learned counsel appearing for the respondent Ms. Shikha Sinha has pointed out that copy of the supplementary affidavit was given to respondent-State yesterday. She has vehemently argued that the issues raised by the petitioner, as hereinabove reflected, were raised at the instance of the petitioner in a habeas corpus petition bearing Writ Petition No.455(H/C) of 2013, Ashok Kumar v. Union of India. The contentions have been considered and rejected. No order favourable to the petitioner was passed by the Division Bench. The findings would also be binding to the case of the petitioner in this petition.
14.Sri Puri has responded to the arguments by referring to concluding portion of the judgment rendered by the Division Bench dated 1.7.2014 (Annexure-15), wherein it has been specifically said that instead of pursuing the writ petition, it would be appropriate for the petitioner to raise all these arguments in regular criminal proceedings including proceedings for quashment of the impugned proceedings under Section 482 of the Code of Criminal Procedure. The Division Bench has further held that observations made in the order shall not be treated as observations of the court on merit, lest it may cause prejudice to the case of either of the parties. In such circumstances, Sri Puri contends that the contentions made by the petitioner need to be heard, considered and adjudicated afresh.
15.Having considered the facts and circumstances of the case, the respondents are directed to file counter affidavit.
16.List on 13.8.2014 alongwith Criminal Misc. Case (under Section 482 Cr.P.C.) No.2107 of 2014, titled Baljit Singh v. Union of India (NCB).
17.In the meantime, interim direction given by this court in order dated 13.5.2014 passed in Case under Section 482 of the Code of Criminal Procedure bearing No.2107 of 2014, Baljit Singh v. Union of India & ors. (N.C.B.) would operate in the case of the petitioner also.
18.It is made clear that counter affidavit be filed within two weeks from today.
19.Rejoinder affidavit, if any, be filed within one week thereof.