TaxTMI 
TaxTMI 
2017 (12) TMI 641
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....registered at Police Station, Sangaria, District Hanumangarh pertain to the offences under Section 8/21 of the NDPS Act and Section 18C/27B of the Drugs Act. 3. In S.B.Criminal Misc. Bail Application No.3790/2017, on 18.02.2017, when petitioner-Gavranjeet Singh @ Gavrana was caught in the nakabandi, 199 bottles of Wincerex Cough Syrup were recovered. The bail application of the petitioner was rejected by the learned court below on 25.04.2017 on the ground that the Wincerex Cough Syrup fell under the provisions of Sections 8/21 & 25 of the NDPS Act and Section 18 C/27 B of the Drug and Cosmetics Act, and was thus, a serious offence. 4. In S.B.Criminal Misc. Bail Application No.4979/2017, on 08.05.2017, when petitioner-Kanwar Pal Singh was caught in the nakabandi, 34 bottles of Codeine Phosphate Triprolidine Hydrochloride Syrup Raxee 100 ml were recovered. The bail application of the petitioner was rejected by the learned court below on 16.05.2017. 5. In S.B.Criminal Misc. Bail Application No.5055/2017, on 19.03.2017, when petitioner-Mahendra Singh was caught in the nakabandi, 250 bottles of Wincerex and 298 strips of Carisoma tablets were recovered. The bail application of ....
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....of Codeine Phosphate and Triprolidine Hydrochloride was only 44.77 grams; and in the case of recovery of 34 bottles, the said quantity was 340 mg i.e.10 mg per bottle; and the third case relates to the recovery of 250 bottles of Wincerex and 298 strips of Carisoma Tablets. 11. Learned counsels for the petitioners have argued that certain precedent laws against the petitioners carried commercial quantity of Codeine Phosphate, which is not there in the present cases, and therefore, the case of the present petitioners was clearly distinguishable from the one in the said precedent laws, where the commercial quantity of Codeine Phosphate was found to be the sufficient ground for denying the bail to the accused. 12. Learned counsels for the petitioners have also shown to this Court the Schedule of appended to the Drugs and Cosmetics Rules, 1945, which includes Codeine, its salts and derivatives as prescription drugs in Schedule-H and Triprolidine in Schedule-G. Thus, as per learned counsels for the petitioners the violation, on the face of it, could have been of the Drugs and Cosmetics Rules, 1945. 13. Learned counsels for the petitioners have relied upon the precedent law laid ....
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....tter (Annexure P-10) regarding sale of cough linctus containing Codeine Phosphate, which clearly clarifies that by virtue of the fact that cough syrups preparation contain Codeine and other salts, they do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule "H" of the Drugs and Cosmetics Rules and are governed by the said Rules. It has further been clarified in the said letter that though stocking and sales of these drugs do not attract the provisions of NDPS Act and Rules 1985, however, these formulation are prescriptions drugs and are to be dispensed on the prescription of a registered practitioner(s) only. It has further been clarified that such a drug containing Codeine comes within the purview of entry No. 35 and, as such, not covered under the provisions of NDPS Act. 10. Rexcof is a drug of Cipla Limited, Mumbai. It has also clarified to all its Super Distributors vide (Annexure P-11) that Rexcof syrup (Codeine Phosphate 10mg+CPM 4mg/5ml) is exempted from the provisions of NDPS Act and Rules there under. In this regard reference has been given to the government notification No.SO-826(E), dated 14.11.1985. 11. It would also....
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....r is a holder of the licence and has purchased the medicines through valid bill. 13. In the light of what has been discussed above, the petition is allowed. Consequently, FIR No.254, dated 22.11.2012, under Sections 22 of the NDPS Act along with all consequential proceedings, which have been arisen therefrom stand quashed." 14. Learned counsels for the petitioners further relied upon the judgment in the case of Ashok Kumar Thru (Brother) Rakesh Kumar Pawar Vs. Union of India Thru Ministry of Home New Delhi & Ors., (Case U/s 482/378/407 No.2976/2014 decided on 15.10.2014), relevant paras of which read as under:- "47. Central Notification Dated 14.11.1985 and published in Gazette of India has been issued under Section 2(xi) (b) of N.D.P.S.Act wherein "Manufactured Drugs" have been mentioned. Relevant portion of notification, Annexure-5, issued under N.D.P.S.Act reads as under: "S.O.826 (E), dated 14th November, 1985.-- In exercise of the powers conferred by sub-clause (b) of clause (xi) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declare the following narcotic substance and preparat....
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....umbai, 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 it 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 already aware that under notification number S.O.826 (E) dated 14th Nov, 1985 under the Narcotic Drugs and Phychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcoti 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 ar....
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....half, no person shall himself or by any other person on his behalf- (a) x x x x x x x x x x x (b) x x x x x x x x x x x (c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter." (emphasis supplied by me) 65. Section 28-A and 28-B of the D & C Act provide for penalty for not keeping documents etc. Provisions of Section 28-A and 28-B of the Act read as under : "Section 28-A. Penalty for not keeping documents, etc., and for non-disclosure of information.-- Whoever without reasonable cause or excuse, contravenes the provisions of section 18- B shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. Section 28-B. Penalty for manufacture, etc., of drugs or cosmetics in contravention of section 26-A.-- Whoever himself or by any other person on his behalf manufactures or sells or distributes any drug or cosmetic in contravention of the provisi....
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....e. 92. Taking a cue from the above extracted portion of the judgment in context of the present case, it is observed that the drug/substance at issue is not included under Schedule I appended to the N.D.P.S. Rules and, therefore, provisions of Section 8 of the N.D.P.S.Act would have no application. When the above noted observations of the Hon'ble Supreme Court are considered in context of Phensedyl Syrup containing codeine, opinion of this Court is reenforced because extent of codeine used in Phensedyl Syrup is well within the prescribed limit, prescribed under Notification dated 14.11.1985 (Annexure 5), issued under Section 2(xi)(b) of the N.D.P.S.Act. 94. This Court is of the opinion that the Hon'ble Supreme Court of India has distinguished the Punjab and Haryana High Court judgments in Md.Sahab Uddin's case (supra). The judgments rendered by the Punjab and Haryana High Court are in consideration of similar, rather identical facts as the present case. The Hon'ble Supreme Court of India, therefore, by implication has not negated the law laid down by the Punjab and Haryana High Court in the case of Deep Kumar (supra) and Rajeev Kumar (supra). ....
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....ith the judgments cited by learned counsel for the petitioner. 18. The order passed by the coordinate Bench of this Hon'ble High Court in Devilal Vs. State of Rajasthan (supra) reads as under:- " The instant second application for bail has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in connection with F.I.R. No.38/2016, Police Station Sangariya, District Hanumangarh, for the offences under Sections 8/21, 22 of the N.D.P.S. Act and Sections 8C/27B(2) of the Drugs and Cosmetics Act. The first bail application submitted on behalf of the petitioner was rejected by this Court on 24.2.2016 while investigation was still pending. Now post filing of chargesheet, this second bail application has been moved. Learned counsel for the petitioner urged that medicinal preparations were recovered from the possession of the petitioner and thus, he can only be prosecuted under the provisions of Drugs and Cosmetics Act. He relied upon the order dated 16.9.2015 passed by the Hon'ble Single Bench of this Court in a bunch of bail applications led by S.B. Criminal Misc. Bail Application No.7976/2015 (Mahesh. vs. State of Rajasthan) wher....
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.... whereas upto 100 grams is quantified as non-commercial quantity for the salt Alprazolam. The gross weight of the Alprazolam tablets recovered from the petitioner's possession is 172.50 grams. Therefore, definitely the gross weight of the drug recovered from the petitioner was well above the commercial quantity. The Hon'ble Supreme Court, in the case of Union of India vs. Sanjeev V. Deshpande reported in 2014 Cr.L.R. (SC) 896 considered the controversy as to whether the content of psychotropic salt in the tablet could be separately counted for calculating the weight/volume of psychotropic substance in a medicinal preparation. The Honourable Supreme Court repelled the contention and held that the gross weight of the drug is to be counted and not merely the net percentage/ content of the salt in the medicinal preparation for finding out the actual weight of the drugs in reference to the Schedule under the N.D.P.S. Act. The Single Bench order dated 16.9.2015 in the case of Mahesh (supra) was passed by this Court relying on various orders of Punjab & Haryana Court in the cases of (1) Ashwani Kumar. vs. State of Punjab reported in 2014(1) RCR (Criminal) 715 (P&H) and (2) Ja....
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....the Appellants that the seized pharmaceutical products were meant for supply to any dealer or shop to be sold by way of medicine under the prescription of approved medical practitioner and having regard to total quantity content of the prohibited substance, the plea of the Appellants that provisions of the N.D.P.S. Act are not attracted, cannot be accepted. According to Learned Counsel for the State, the submission based on the number of days spent by the Appellants in the prison was not raised before the High Court and, therefore, the same cannot be a ground for consideration in this appeal. 7. Having heard respective counsels and having perused the order of the Sessions Court as well as the High Court, at the very outset, we feel that to appreciate the gravity of the offence alleged against the Appellants, it is worthwhile to refer to the nature of materials seized, the total quantity and the extent of codeine phosphate contained therein which has been noted by the High Court in paragraph 34 of its order which can be usefully extracted hereunder: 8. The contentions of the Appellants were fourfold. In the first place, it was contended that the cough syrup Phensed....
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....p 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. 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 dose unit and with a concentration of not more than 2.5% in undivided preparation a....
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....ted 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. 17. We do not find any merit in this appeal. The appeal fails and the same is dismissed. We, however, make it clear that whatever stated in this order is only for the purpose of dealing with the Appellants' application for grant of bail and we have not stated anything on the merits of the allegations levelled against the Appellants." Considered in light of the above Supreme Court judgment, this Court has no hesitation in holding that the coordinate Bench of this Court in Mahesh (supra) appears to have passed the order without considering the above two Supreme Court judgments, particularly, the judgment in the case of Union of India. vs. Sanjeev V. Deshpande, which was delivered by a Larger Bench overruling the earlier judgment in Rajes....