2014 (1) TMI 1972 - HC - Indian Laws

Bulk quantities of Dextropropoxyphene and Diphenoxylate constitute manufactured drugs under NDPS Act Section 2(xi) despite therapeutic exceptions

Inderjeet Singh @ Laddi; Ravinder Singh @ Rinku; Rani; Mohd. Shamshad Versus State of Punjab

Punjab and Haryana HC addressed bail applications involving recovery of Dextropropoxyphene and Diphenoxylate, determining whether these constitute ... Seeking grant of bail - recovery of Dextropropoxyphene and Diphenoxylate - manufactured drugs as defined in Section 2 (xi) of the NDPS Act or not - trial for an offence under the NDPS Act, in possession of 'manufactured drugs' which fall in the definition of 'manufactured drug' in terms of Section 2 (xi) of the NDPS Act and has been notified as such by notifications dated 14.11.1985 and 29.1.1993 as 'manufactured drugs', but contain an exception as regards the percentage of dosage in the drug - overlap between the NDPS Act and the D&C Act regarding the prosecution of drug-related offenses - HELD THAT:- State and the quantity of such substance required for reasonable inventory to be held by a manufacturer, shall specify, by order, the limit of the quantity of such substance which may be manufactured by the manufacturer in the State. In terms of Rule 65A of the NDPS Rules, no person is to sell, purchase, consume or use of psychotropic substance except in accordance with the 1945 Rules. Schedule I of the NDPS Rules referred to in Rule 64 provides for various narcotic drugs and psychotropic substances. The provisions of the NDPS Act and the NDPS Rules as also the D&C Act and the 1945 Rules show that there is overlapping of drugs of various types. The drug Dextropropoxyphene Hcl was found in the case of Ravinder Singh alias Rinku v. State of Punjab (CRM No. M-1379 of 2013). At serial No.87 of the notification dated 14.11.1985, the drug (+)-4-dimethylamino-1, 2-diphenyl-3-methyl-2-butanon propionate (the international non-proprietary name of which is Dextropropoxyphene), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except preparations for oral use containing not more than 135 milligrammes of Dextropropoxyphene base per dosage unit or with a concentration of not more than 2.5 per cent in undivided preparations, provided that such preparations do not contain any substances controlled under the Convention of Psychotropic Substances, 1971. Therefore, in terms of notification dated 14.11.1985, Dextropropoxyphene is a drug, which has been notified as a manufactured drug though with a certain exception in terms of Section 2 (xi) (b) of the NDPS Act and is also a drug in Schedule 'H' of the 1945 Rules. The manufactured drugs of which there has been a contravention in the present cases have been sold, purchased, distributed, stored, transported, carried etc. in a bulk form and mostly these are without proper licences or authorizations. In respect of such drugs which are carried in bulk form, the notification dated 18.11.2009 would apply and the question that these drugs contain an exception would not be applicable as the exceptions would apply when the drugs are for medicinal or therapeutic use - the question of exceptions being provided in respect of drugs at serial No.16, 35, 36, 37, 48, 58, 70, 76, 83 and 87 of the notification dated 14.11.1985 is inconsequential when these drugs are carried in a bulk form and the entire quantity of the bulk is to be taken into consideration and not per dosage specially when these are carried in violation of the D&C Act and the 1945 Rules that is to say are sold, purchased, distributed, stored, transported, carried etc. without a valid licence or kept without a valid authorization. The procedure provided for trial and prosecution of offences under the NDPS Act would not in any manner be hit by Article 14 of the Constitution; besides, even if it covers only a class of cases which are mentioned in the NDPS it would not be bad and the fact that in such cases the prosecution chooses as to which cases are to be tried under the special procedure would not affect the validity of the NDPS Act and the mere availability of two procedure does not vitiate one of them that is the special procedure under the NDPS Act. Besides, it is for the State to decide as to in which of the two enactments that is, the NDPS Act or the D&C Act is the prosecution to be launched. It may also appropriately be noticed that the provisions of Section 80 of the NDPS Act envisage that application of the D&C Act is not barred. In terms of the above Rule 26, it is on the prescription of a Medical Practitioner that a person may possess such quantity of manufactured drugs which may be sold by a licensed chemist for medicinal purposes, as have been at one time supplied for use in accordance with the provisions of the Punjab NDPS Rules 2012. The said Punjab NDPS Rules, 2012 further provide for grant of licence to a chemist and a dealer in terms of Rule 27, sale of manufactured drugs by a licensed chemist in terms of Rule 28, sale of manufactured drugs by a licensed dealer in terms of Rule 29, grant of licence to a manufacturer in terms of Rule 30 - The alarming aspect is the misuse of manufactured drugs by drug addicts and drug traffickers which evidently is not for medicinal or therapeutic purposes. Therefore, to curb this menace it is obligatory to enforce the stringent provisions of the NDPS Act for violation of the NDPS Act and NDPS Rules. Conclusion - The individuals found in possession of bulk quantities of manufactured drugs, intended for non-therapeutic use, can be prosecuted under the NDPS Act. The cases shall be sent back to the learned Single Judge for disposal. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment include:Whether substances classified as 'manufactured drugs' under the NDPS Act can be prosecuted under this Act, or if they should only be dealt with under the D&C Act.The interpretation of 'manufactured drugs' and the applicability of exceptions provided in notifications under the NDPS Act.The overlap between the NDPS Act and the D&C Act regarding the prosecution of drug-related offenses.The criteria for determining whether a drug falls within the purview of the NDPS Act based on its quantity and intended use.The procedural requirements for handling manufactured drugs and the implications of possessing such drugs without proper authorization.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Applicability of the NDPS Act vs. D&C ActThe legal framework involves the NDPS Act, which regulates narcotic drugs and psychotropic substances, and the D&C Act, which governs the manufacture and sale of drugs. The court examined whether drugs classified as 'manufactured drugs' under Section 2(xi) of the NDPS Act should be prosecuted under this Act or the D&C Act. The court noted that the NDPS Act provides stringent measures for controlling drug trafficking, while the D&C Act focuses on regulatory aspects.Key evidence included notifications dated 14.11.1985 and 29.1.1993, which declared certain drugs as 'manufactured drugs' under the NDPS Act. The court concluded that the mere overlap of drugs under both Acts does not preclude prosecution under the NDPS Act if the drugs are used for non-therapeutic purposes.Issue 2: Interpretation of 'Manufactured Drugs'The court analyzed the definition of 'manufactured drugs' under Section 2(xi) of the NDPS Act, which includes drugs declared by the Central Government. The court examined exceptions provided in the notifications, which exempt certain drugs from being classified as 'manufactured drugs' if they fall within specified dosage limits.The court reasoned that exceptions apply only when drugs are used for medicinal purposes. When drugs are possessed in bulk without authorization, they fall under the NDPS Act, irrespective of the exceptions.Issue 3: Overlap Between NDPS Act and D&C ActThe court addressed the contention that offenders should only be prosecuted under the D&C Act due to overlapping provisions. It held that the NDPS Act's stringent provisions are applicable when there is a contravention involving narcotic drugs or psychotropic substances, regardless of overlap with the D&C Act.The court emphasized that the NDPS Act's provisions are in addition to those of the D&C Act, not in derogation of them, as per Section 80 of the NDPS Act.Issue 4: Criteria for Determining Applicability of NDPS ActThe court considered whether the drugs in question were intended for therapeutic use or misuse. It noted that possession of drugs in bulk without proper authorization indicates non-therapeutic intent, warranting prosecution under the NDPS Act.The court applied the principle that the entire quantity of drugs should be considered, not just the dosage per unit, when determining whether they fall within the exceptions.Issue 5: Procedural Requirements and AuthorizationThe court outlined the procedural requirements for handling manufactured drugs, emphasizing the need for proper licenses and authorization. It highlighted the Punjab NDPS Rules 2012, which regulate the possession, transport, and sale of manufactured drugs.The court concluded that failure to adhere to these procedures results in contravention of the NDPS Act, subjecting offenders to its penalties.3. SIGNIFICANT HOLDINGSThe court established several core principles:Manufactured drugs, as defined and notified under the NDPS Act, are subject to its provisions when possessed without proper authorization, even if they overlap with the D&C Act.Exceptions to the classification of manufactured drugs apply only when drugs are used for medicinal purposes, not when possessed in bulk for non-therapeutic use.The NDPS Act's provisions are supplementary to the D&C Act, allowing for prosecution under both Acts if applicable.The entire quantity of drugs, rather than individual dosages, is considered when determining applicability of exceptions under the NDPS Act.Proper authorization and adherence to procedural requirements are mandatory for handling manufactured drugs, with violations leading to prosecution under the NDPS Act.The court concluded that individuals found in possession of bulk quantities of manufactured drugs, intended for non-therapeutic use, can be prosecuted under the NDPS Act. The cases were remanded to the learned Single Judge for further proceedings based on these principles.