Syed Alam Vs. the State of Assam. - Court Judgment

Excerpt:
1. a sub-inspector of police, criminal investigation department (for short, 'cid'), assam, lodged, on 01. 12 . 2009, a first information report with the officer-in-charge, cid police station, assam, alleging, inter alia, thus: acting on a secret information, the informant, along with his team of officials, on 30. 11 . 2009, at 2. 40 p. m. , conducted search of a night super bus parked at lalong gaon, lokhra, near national highway 37, in presence of its driver, lairenlakpam thoiba singh, its handyman, azmeer hussain, and some witnesses. on the search, so conducted, 31,298 (thirty-one thousand two hundred and ninety-eight) numbers of spasmo proxyvon capsules were found kept concealed in two secret chambers specially made inside the bus. the said capsules were accordingly seized and, on a.....

Judgment:
1. A sub-Inspector of police, Criminal Investigation Department (for short, 'CID'), Assam, lodged, on 01. 12 . 2009, a First Information Report with the Officer-in-Charge, CID Police Station, Assam, alleging, inter alia, thus: Acting on a secret information, the informant, along with his team of officials, on 30. 11 . 2009, at 2. 40 p. m. , conducted search of a night super bus parked at Lalong Gaon, Lokhra, near National Highway 37, in presence of its driver, Lairenlakpam Thoiba Singh, its handyman, Azmeer Hussain, and some witnesses. On the search, so conducted, 31,298 (thirty-one thousand two hundred and ninety-eight) numbers of Spasmo Proxyvon capsules were found kept concealed in two secret chambers specially made inside the bus. The said capsules were accordingly seized and, on a query made by the informant, the driver and handyman failed to produce any document authorizing them to carry the said capsules.

2. Based on the information, so lodged, CID Police Station Case No. 31/2009 under Sections 380/411 IPC read with Section 22(c)/29 of the Narcotic Drugs and Psychotropic substances Act (in short, 'the NDPS Act') was registered. The samples were sent to Forensic Science Laboratory (for short, 'the FSL'), which reported that the chemical examination of the samples gave positive test for pro-poxyphene and the amount of pro-poxyphene was found to be 497. 50 m. g. and 479. 91 m. g. respectively. On completion of investigation, charge-sheet was laid and the case has come to be registered as Sessions (Special) Case No. 375/2009. By order, dated 05. 05. 2010, learned Additional Sessions Judge, Kamrup, has fixed the case for consideration of charge.

3. Challenging the legality and maintainability of the registration of the case under the provisions of the NDPS Act by the prosecution, the present application, under Section 482 CrPC, has been made for quashing of the penal provisions of the NDPS Act, whereunder the case has been registered, on the ground that possession of spasmo proxyvon capsule or transportation thereof can, at best, be an offence under the Drugs and Cosmetics Act, 1940, but cannot be an offence under the NDPS Act.

4. I have heard Mr. M. I. Sharma, learned counsel for the petitioner, and Mr. Z. Kamar, learned Public Prosecutor, Assam. I have also heard Mr. A. M. Bora, learned counsel, who has appeared as amicus curiae.

5. Appearing on behalf of the petitioner, it has been contended by Mr. Sharma that the prosecution of the accused, under Section 22(c) of the NDPS Act, is bad in law inasmuch as Section 22 prescribes punishment if the contravention of the provisions of the NDPS Act or Rules or Orders made or conditions of license(sic), granted thereunder, is in respect of any psychotropic substance. In order to be a psychotropic substance, contends Mr. Sharma, the substance, in the light of the definition of psychotropic substance, as contained in Section 2(xxiii), must be included in the list of psychotropic substances, specified in the schedule to the NDPS Act.

6. In the case at hand, the prosecution alleges, points out Mr. Sharma, that the seized capsules, which bear the trade name of Spasmo Proxyvon, contain propoxyphene. It is also pointed out by Mr. Sharma that since prosecution against the petitioner has been launched under Section 22(c) of the NDPS Act, it implies that propoxyphene, according to the prosecution, is a psychotropic substance or else, the prosecution of the accused could not have been sought for under Section 22. However, the fact remains, submits Mr. Sharma, that propoxyphene does not find place in the list of psychotropic substances specified in the schedule to the NDPS Act. Consequently, the seized capsules, points out Mr. Sharma, cannot be said to contain any psychotropic substance. The prosecution of the accused above-named, therefore, is, contends Mr. Sharma, not sustainable in law and may be quashed by invoking this Court's power under Section 482 CrPC.

7. It is also submitted by Mr. Sharma that since the allegation against the accused above-named is regarding possession of psychotropic substance of commercial quantity and yet, when he is not shown to have ever been in possession of any psychotropic substance, as indicted hereinbefore, the question of prosecuting the accused for abetment of criminal conspiracy of an offence under the NDPS Act, as perceived by Section 29, does not arise at all. Viewed from this angle, submits Mr. Sharma, the prosecution of the accused above-named, even under Section 29 of the NDPS Act, is bad in law and may, therefore, be interfered with.

8. Spasmo proxivon, further submits Mr. Sharma, is a medicine, it is used for medicinal purposes and Section 8 of the NDPS Act does not prohibit possession of any narcotic drug or psychotropic substance if such possession is for medicinal purpose. Even if the accused above-named, according to Mr. Sharma, is alleged to have been found in possession of Spasmo Proxyvon, which is used for medicinal purpose, such possession, if it is without any authority or license(sic), would, at best, expose the accused above-named to the prosecution for an offence committed under the Drugs and Cosmetics Act, 1940, and not under the penal provisions of the NDPS Act. Considered from this angle too, submits Mr. Sharma, the prosecution of the accused above-named, for the alleged offences under the NDPS Act, is bad in law and may, therefore, be not sustained by this Court.

9. Support for his submission, that if a person is found in possession of psychotropic substance, which is used for medicinal purpose, no offence can be said to have been committed by such a person under the NDPS Act, Mr. Sharma refers to, and relies upon, the case of State of Uttaranchal v. Rajesh Kumar Gupta, reported in (2007) 1 SCC 355.

10. In support of his submission, that the prosecution of the accused, under any of the provisions of the NDPS Act, is bad in law, Mr. Sharma has also referred to Rule 53 and Rule 64 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (in short, the NDPS Rules), to contend that since Schedule 1, which Rule 53 and 64 refer to, does not contain propoxyphene, the prosecution of the accused is impermissible in law under Section 22(c) or Section 29 or any other penal provisions of the NDPS Act.

11. Referring to the table of the Notification, dated 19 . 10. 2001, published by the Central Government in exercise of its powers under Clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, which specifies small quantity and commercial quantity of various narcotic drugs and psychotropic substances, Mr. Sharma contends that propoxyphene, which the seized capsules allegedly contain , has not been mentioned in the table of Notification, dated 19. 10. 2001, aforementioned and, hence, the provisions of Section 22(c), which punishes a person if he is found to be in possession of psychotropic substance of commercial quantity, are not attracted to the facts of the case at hand. Inasmuch as the name propoxyphene does not find place in the said table, the prosecution of the accused above-named, reiterates Mr. Sharma, is bad in law and may, therefore, be set aside and quashed.

12. Resisting this criminal petition, Mr. Z. Kamar, learned Public Prosecutor, has submitted that the facts, as alleged in the FIR, and the report of the investigation, which has been carried out, reveal that the driver and handyman, who had been found to have been carrying the capsules, were not innocent carriers of capsules inasmuch as these capsules were being carried in secret chambers specially designed and made, in the bus, for carrying such contrabands.

13. Turning to the question of prosecution of the accused above-named for offences under Section 22(c) and Section 29 of the NDPS Act, the learned Public Prosecutor has referred to the report of the FSL and submitted that this report indicates that the seized materials gave positive test for propoxyphene and the amount of propoxyphene were found to be 479. 50 mg and 479. 51 mg. The fact that the seized capsules gave positive test for propoxyphene is, points out Mr. Sharma, not in dispute at this stage. The question, therefore, is, submits the learned Public Prosecutor, whether the accused, having been found in possession of propoxyphene, can be prosecuted under Section 22(c) of the NDPS Act or whether he can and shall be prosecuted under some other penal provisions of the NDPS Act.

14. Responding to Mr. Sharma's contention that the table of Notification dated 19. 10. 2001, specifying small quantity and commercial quantity of the narcotic drugs and psychotropic substances does not mention propoxyphene , the learned Public Prosecutor points out that at Serial No. 33 of the said table, dextropropoxyphene has been mentioned and the terms, 'propoxyphene and dextropropoxyphene', are, according to learned Public Prosecutor, synonymous and their components are same and identical. The question, therefore, is, according to the learned Public Prosecutor, whether propoxyphene is a narcotic drug or psychotropic substance? If propoxyphene is not a psychotropic substance, but it is a narcotic drug, then, the prosecution of the accused, under Section 22(c), may not be maintainable inasmuch as Section 22(c) relates to possession of commercial quantity of psychotropic substance if such possession is in contravention of any provision of the NDPS Act or any rule or order made or condition of license(sic) granted thereunder, but he would, contends the learned Public Prosecutor, be liable, nevertheless, for prosecution for possessing, without any valid license(sic), commercial quantity of narcotic drug if propoxyphene can be shown by the prosecution to be a narcotic drug within the meaning of the term narcotic drug as defined in Section 2(xiv) of the NDPS Act.

15. With regard to the question, as to whether propoxyphene is a narcotic drug or psychotropic substance, or neither of these two, it is pointed out by the learned Public Prosecutor that the expert has furnished a report describing all materials pertaining to the substance and, as per this report, propoxyphene and dextro-propoxyphene are synonymous, which means that the components are same and identical. The learned Public Prosecutor further submits that the opinion of the expert is based on the authority of a Chemical Literature, namely, Clarke's Isolation and Identification of Drugs. A careful reading of the said text would show, points out the learned Public Prosecutor, that dextropropoxyphene and propoxyphene are synonymous inasmuch as both contain C22H22NO2. Spasmo Proxyvon contains, points out learned Public Prosecutor, as follows:

(a)Dicyclomine Dydrochloride IP - 10 mg.

(b)Propoxyphene Napsylate-100 mg.

(c) Acetaminophen-400 mg.

16. According to the learned Public Prosecutor, dextropropoxyphene or propoxyphene, as it is commonly known, is commercially available as the hydrochloride or napsylate salt. It is also submitted by the learned Public Prosecutor that as per chemical literature, dextropropoxyphene and propoxyphene are isomers and the word isomer has been incorporated in Note 1 of the Foot-Note of the Table specifying small quantity and commercial quantity under the NDPS Act. The Oxford Dictionary defines, points out the learned Public Prosecutor, the word, isomer, as a part or share, a substance isomeric with another, anyone of a number of isomeric compounds. Learned Public Prosecutor further points out that isomeric is composed of same element in the same proportion and, ordinarily, having the same molecular weight, but forming different substances with different properties. Support for this submission is sought to be derived by the learned Public Prosecutor from the 'Review of Propoxyphene Products For Inclusion within Alberta's Triplicate Prescription Program' published on 29. 08. 2003.

17. It is further contended by the learned Public Prosecutor that dextropropoxyphene is a synthetic opiate , which is a mild analgesic structurally related to methadone. It is, according to the learned Public Prosecutor, an opium derivative and, being an opium derivative, it is, in the light of the provisions of Section 2(xiv), a narcotic drug inasmuch as Section 2(xiv) defines a narcotic drug to include all manufactured drugs and manufactured drug, under Section 2(xi), means, inter alia, opium derivatives.

18. Referring to the case of Amarsingh Ramjibhai Barot -vs- State of Gujrat, reported in 2005 CRI. L. J. 4521(SC), learned Public Prosecutor has pointed out that in this case, it has been clearly held that 'opium derivatives' fall within the expression 'manufactured drug' as defined in Section 2(xi) of the NDPS Act, and, hence, there can be no escape from the conclusion that Spasmo Proxyvon capsules, which were seized, in the present case, from the possession of the accused, containing opium derivatives, amounted to manufactured drug and the same, being a manufactured drug, was a narcotic drug and since the possession of the said narcotic drug was more than 500 grams, the possession of the said narcotic drug by the accused must be treated to be of commercial quantity and the accused are, therefore, liable for prosecution under Section 21 of the NDPS Act. In this regard, learned Public Prosecutor has pointed out that the Notification dated 19. 10. 2001, aforementioned, which places dextropropoxyphene at Serial No. 33, shows that possession of 500 gms of dextropropoxyphene is possession of commercial quantity of dextropropoxyphene.

19. In substance, what transpires from the submissions of the learned Public Prosecutor is that propoxyphene, according to the learned Public Prosecutor, is a narcotic drug and, hence, when the accused has been found in possession of commercial quantity of propoxyphene, which is contended by the prosecution to be a narcotic drug, the accused can be proceeded, if not under Section 22(c), under Section 21(c) of the NDPS Act, which relates to possession of narcotic drug of commercial quantity in contravention of the provisions of the NDPS Act or the NDPS Rules or order made thereunder or the conditions of license(sic) granted thereunder.

20. What, thus, emerges from the submissions of the learned Public Prosecutor is that the prosecution does not insist that accused was found to be in possession of psychotropic substance; rather, what the prosecution contends, now, is that the accused had been found in possession of narcotic drug. Admittedly, therefore, prosecution of the accused, according to what the prosecution, now, contends, is not possible under

Section 22(c) of the NDPS Act, but he can still be prosecuted, contends prosecution, for committing an offence under Section 21(c) of the NDPS Act.

21. In the facts and circumstances of the present case, therefore, the question is: whether the accused were found in possession of narcotic drug and whether their prosecution, under the penal provisions of Section 21(c) of the NDPS Act, is permissible?

22. Mr. A. M. Bora, learned amicus curiae, has painstakingly taken this Court extensively through various provisions of the NDPS Act and the NDPS Rules and pointed out that Section 2(xi) has defined manufactured drug to mean all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, and narcotic drug, which stands defined in Section 2(xiv) of the NDPS Act, means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. Mr. Bora has also pointed out that Section 8 of the NDPS Act prohibits, amongst others, possession of narcotic drug as well as psychotropic substance except for medicinal or scientific purposes and in the manner and to the extent as provided by the provisions of the NDPS Act or the Rules or Order made thereunder or the conditions of licence granted thereunder. Mr. Bora further points out that if a person is found to possess narcotic drug in contravention of the provisions of the NDPS Act or the Rules or Order made thereunder or the conditions of license(sic) granted thereunder, such a person is liable to be prosecuted under Section 21 of the NDPS Act and if an accused is found to be in possession of commercial quantity of narcotic drug, he will be liable to be prosecuted under Section 21(c) of the NDPS Act.

23. Mr. Bora submits that the term 'drug' has not been defined in the NDPS Act. The definition of the term 'drug', which appears in Section 3(b) of the Drugs and Cosmetic Act, 1940, would, therefore, according to Mr. Bora, govern the interpretation of the term 'drug', wherever the term 'drug' appears in the NDPS Act.

24. In the case at hand, points out Mr. Bora, the materials on record clearly reveal that Spasmo Proxyvon is merely the trade name of a drug. What is, however, important to note, according to Mr. Bora, is the fact that according to the authorities cited by the learned Public Prosecutor, propoxyphene and dextro- propoxyphene are synonyms of each other and that both are derivatives of opium. Thus, spasmo proxyvon capsules, which, admittedly, contain propoxyphene, is, in reality, points out Mr. Bora, nothing but dextro-propoxyphene, which is a narcotic drug and when dextro-propoxyphene stands mentioned in the notification, dated 19. 10. 2001, aforementioned, there can be no escape from the conclusion that a spasmo proxyvon capsule is a narcotic drug and the possession thereof would be an offence under Section 21 of the NDPS Act if such possession is in contravention of the provisions of the NDPS Act or the Rules or order made thereunder or the conditions of licence granted thereunder. Otherwise, also, points out Mr. Bora, propoxyphene, being an opium derivative, falls within the definition of manufactured drug and a manufactured drug is, in the light of the definition of narcotic drug, as given in Section 2(xiv) of the NDPS Act , becomes a narcotic drug.

25. Referring to the notification bearing No. S. O. 826 (E), dated 14-11-1995, Mr. Bora has pointed out that Section 2(xi) of the NDPS Act, while defining manufactured drug, lays down, vide clause (b) thereof, that the Central Government, by means of a notification in the Official Gazette, declare any other narcotic substance or preparation to be a manufactured drug if the Central Government, having regard to available information as to its nature or pursuant to any decision under any international convention so decides. In fact, as has been rightly pointed out by Mr. Bora, learned amicus curiae, that the Central Government, by a notification, bearing No. S. O. 826 (E), dated 14-11-1995, has, in exercise of its powers under Sub-Clause (b) of Clause (ii) of Section 2 of the NDPS Act, declared certain narcotic substances and preparations to be manufactured drug inasmuch as clause (b) (xi) of the notification, dated 14. 11. 95, mentions, Dimetylamino-1, 2-dipheny1-2methyli-2 butanol, ropionate (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 milligrams of Dextro-propoxyphene 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.

26. Referring to the case of D. Ramakrishnan -vs- Intelligence Officer, Narcotic Control Bureau, reported in (2009) 14 SCC 603, Mr. Bora has pointed out that the Supreme Court has noted, at Para 14 of the said decision, that Section 80 of the NDPS Act provides that the provisions of the NDPS Act or the Rules made thereunder are in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940, or the Rules made thereunder. The mere fact, therefore, contends Mr. Bora, that a substance falls within the term 'drug', as defined under the Drugs and Cosmetics Act, 1940, would not necessarily exclude the substance from being treated as a 'narcotic drug' or 'psychotropic substance' if the composition thereof satisfy, otherwise, the definition of the term, 'narcotic drug' or 'psychotropic substance', provided, of course, concedes Mr. Bora, that the possession of the narcotic drug or psychotropic substance is in contravention of the provisions of the NDPS Act, or the Rules, or the Order or the conditions of license(sic) granted thereunder.

27. Referring to the case of State of Uttaranchal v. Rajesh Kumar Gupta, reported in (2007) 1 SCC 355, Mr. Bora has pointed out that in Rajesh Kumar Gupta (supra), it was contended that since the drug, in question, was being used for medicinal purposes, Section 8 of the NDPS Act is not applicable. The issue, however, as to whether a person, if found in possession of a drug, within the meaning of the Drugs and Cosmetics Act, 1940, would or would not be liable for prosecution under the NDPS Act and, if so, under what circumstances, such a prosecution is permissible, has not been dealt with and decided finally by the Supreme Court in Rajesh Kumar Gupta (supra).

28. Hence, according to Mr. Bora, the case of Rajesh Kumar Gupta (supra) is not of much assistance, in the present case, in deciding the issue, which has been raised, namely, as to whether Spasmo Proxyvon capsule, which has propoxyphene as an opium derivative, is or is not a narcotic drug and whether its possession exposes a person to punishment under Section 21 of the NDPS Act?

29. Mr. Bora points out that the Drugs and Cosmetics Act, 1940, does not deal with exports of narcotic drug or psychotropic substance; rather, the provisions of the Customs Act, 1962, deal with the exports of substances, which may fall within the definition of 'drug' under the Drugs and Cosmetics Act, 1940, and licenses(sic) are, therefore, required to be obtained to export a substance defined, under the Drugs and Cosmetics Act, 1940, as a drug and if anyone exports or imports, or attempts to export or import, a drug, which, otherwise, satisfies the definition of narcotic drug, without having license(sic) for such export or import, would be liable for punishment under the NDPS Act. In this regard, the Supreme Court has also pointed out, submits Mr. Bora, that the appellant, in D. Ramakrishnan (supra), had neither applied for, nor granted, any authority to export the substance, which fell within the meaning of the term, 'drug' as defined under the Drugs and Cosmetics Act, 1940, and, in the absence of any such a license(sic), export of the substance, though drug, is an offence under the NDPS Act. Hence, merely because of the fact that Spasmo Proxyvon is a drug within the meaning of Drugs and Cosmetic Act, 1940, it would not mean, contends Mr. Bora, that if even the ingredients thereof are found to fall within the definition of 'narcotic drug', as given by Clause 2(xiv) of Section 2 of the NDPS Act, it would not be regarded as an offence under the NDPS Act.

30. Repelling the submissions, made by the learned Public Prosecutor and the learned amicus curiae, Mr. Sharma does not insist that the accused above-named cannot be prosecuted under Section 21 of the NDPS Act if the seized capsules were found to contain narcotic drug and not psychotropic substance. Mr. Sharma, however, contends that the seized capsules neither contain psychotropic substance nor did the capsules contain narcotic drug. In no way, therefore, according to Mr. Sharma, prosecution of the accused, in the present case, for offence, allegedly committed under the NDPS Act, is sustainable.

31. Referring to the Notification, bearing No. S. O. 826(E), dated 14. 11. 1995, which Mr. Bora, learned amicus curiae, has relied upon, Mr. Sharma has submitted that even this Notification clearly shows that in order to be a manufactured drug, the controlled substance, in question, must be covered by the convention of the Psychotropic Substances Act, 1971; whereas, in the case at hand, propoxyphene is not covered by the convention of the Psychotropic Substances Act, 1971.

32. In the light of the rival submissions made before me, let me, now, analyze the scheme of the NDPS Act relevant for the purpose of the present case and determine if the prosecution of the accused above-named needs interference by this Court in exercise of its powers under Section 482 CrPC.

33. While considering this criminal petition, it needs to be borne in mind that prosecution of a person, under the NDPS Act, is not possible unless the substance, which he is found to be in possession of, is either a narcotic drug or a psychotropic substance. Determination of the meaning, therefore, of the expressions, narcotic drug and psychotropic substance, is imperative and, for this purpose, not only the definitions of the expressions, narcotic drug and psychotropic substance, but also of some other expressions, used in the NDPS Act, being relevant, are necessary to be examined.

34. It may, now, be noted that the expression, narcotic drug, as defined in Section 2(xiv), means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods. In the present case, neither it has been alleged by the prosecution that the accused has been found in possession of opium or poppy straw nor is it the case of the prosecution that the accused has been found in possession of coca leaf or cannabis (hemp). One has to determine, therefore, as to whether the accused can be said to have been found in possession of manufactured drug, for, the expression, narcotic drug, includes all manufactured drugs.

35. The quest for the meaning of the term, manufactured drug, takes one to Section 2(xi) of the NDPS Act, which defines manufactured drug to mean (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation, which the Central Government may, having regard to the available information as 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.

36. It can be clearly seen, from the definition of the term, manufactured drug, that opium derivatives are manufactured drugs. This apart, the Central Government may, as rightly pointed out by the learned amicus curiae, declare any other narcotic substance or preparation to be a manufactured drug if, having regard to the available information as to its nature or pursuant to any international convention, the Central Government decides to make such a declaration.

37. Thus, when manufactured drug includes opium derivatives, it logically follows that narcotic drug, which includes all manufactured drugs, would also include opium derivatives. Hence, in other words, opium derivatives would be manufactured drug. This apart, the Central Government may, having regard to the available information as to its nature, declare, by notification in the Official Gazette, any 'narcotic substance' or preparation, to be a manufactured drug. On such a declaration having been made, the narcotic substance or preparation, as the case may be, shall be treated as a manufactured drug. In fact, and as already indicated above, the Central Government has already, with the help of the Notification No. S. O. 826(E), dated 14. 11. 1995, declared dextropropoxyphene as a manufactured drug.

38. Opium derivatives, as defined under Section 2(xvi), means -

(a)medicinal opium, that is, opium, which has undergone the processes, necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;

(b)prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c)phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;

(d)diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and

(e)all preparations containing more than 0. 2 per cent of morphine or containing any diacetylmorphine.

39. A careful perusal of sub-Clause (a), (b), (c), (d) and (e) of Clause (xvi) of Section 2 shows that opium derivatives really mean opium, which has undergone a process, necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; phenanthrene alkaloids, namely, morphine, codeine , thebaine and their salts; diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and all preparations containing more than 0. 2 per cent of morphine or containing any diacetylmorphine.

40. What emerges from the above discussion is that the expression 'manufactured drug' has been defined in Section 2(xi) and the definition of manufactured drug shows that opium derivatives, as defined in Section 2(xvi), are manufactured drugs. As far as the expression 'narcotic drug' is concerned, its definition, as contained in Section 2(xiv), shows that apart from coca leaf, cannabis (hemp), opium, poppy straw, a manufactured drug is a narcotic drug.

41. As against the above definition of the expression, narcotic drug, which includes manufactured drug8 the expression, psychotropic substance, as defined in Section 2(xxiii), means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.

42. From a bare reading of the definition of narcotic drug, as contained in Section 2(xiv) vis-`-vis the definition of psychotropic substance, as contained in Section 2(xxiii), shows that a psychotropic substance is required to be specified in the Schedule to the NDPS Act in order to attract the provisions of the NDPS Act. There is, it may be instantly noted, only one Schedule to the NDPS Act. Unless, therefore, a substance, natural or synthetic, falls within the Schedule to the NDPS Act, it cannot be treated as a psychotropic substance. In other words, independent of the list of the psychotropic substances, given in the Schedule to the NDPS Act, there cannot be psychotropic substance, which would attract the penal provisions of the NDPS Act; whereas, a substance would be a narcotic drug if the same satisfies the definition of narcotic drug as given in Section 2(xiv).

43. Coupled with the above, the Review of Propoxyphene Products For Inclusion within Alberta's Triplicate Prescription Program, which the learned Public Prosecutor has relied upon, reads as under:

Dextropropoxyphene is a synthetic opiate, mild, analgesic, structurally related to methadone. Unlike levo propoxyphene, which possesses only antitussive properties, dextropropoxyphene possesses only analgesic activity. Dextropropoxyphene, like other opiates, mimics the effects of endorphins by binding to opioid receptors in the central nervous system. Dextropropoxyphene, or propoxyphene, as it is commonly known, is commercially available as the hydrochloride or napsylate sale. Propoxyphene hydrochloride 65 mg is equivalent to propoxyphene napsylate 100 mg. Approximately, 25% of propoxyphene is metabolized to norpropoxyphene, which possesses less CNS depressant activity but a greater local anesthetic effect.

Clarke's Isolation and Identification of Drugs:

Dextro propoxyphene

Synonym: Propoxyphene

(+) - (1S, 2R) - 1 Benzyl - 3- Dimethtylamino-2 methyl-1-phenyl-1propylpropionate C22H29NO2 = 339. 5

CAS - 469-62-5

Dextro propoxyphene Hydrochloride

Synonym: Propoxyphene Hydrochloride

Proprietary Names: Alghphan, Agodex, Antalvic, Daraphen, Darvon, Depronal, Depronal SA, Develin, Donene, Dolocap, Erantin, Mardon, Novopropoxyn, Pro-65, Proxagesic, SK-65, 642 Tablets. It is an ingredient of Cosalgesic and Distalgesic.

The Merck Index:

Propoxyphene (469-62-5) (a-S) - a

[1R]-2-(Dimethylamino)-1-methylethyl - a phenyl benzeneethanol propanoate (ester), a-d-4-dimethylamino-3-methyl-1, 2-dipheny 2 - 82. Coupled with the above, the proviso to Rule 65(1) clearly shows that the relaxation granted for the manufacturing of a psychotropic substance is only in respect of some of the items enlisted in Schedule I, and that too, under a license(sic) to be issued by the Government for the purpose of export only and those psychotropic substances, which can be exported, have been mentioned in Schedule III to the NDPS Rules.

83. To put it a little differently, so long as an item remains in Schedule I, the general ban, imposed by Rule 64, will remain and no manufacture, possession, use, transport, consumption, inter-State import or inter-State export is permissible. To enable export of items listed in Schedule I, the particular item will have to be shifted from Schedule I to Schedule III subject, however, to Schedule II. A bare look into Schedule-III to the NDPS Rules would show that Schedule-III contains psychotropic substances, which can be manufactured, but such manufacture can be only for the purpose of export and not for internal consumption, use, possession etc. Schedule-II to the NDPS Rules, on other hand, contains a list of those psychotropic substances, whose exports stand prohibited to certain countries. In fact, it is under Rule 53A, there is prohibition on export of narcotic drugs and psychotropic substances except to the countries or to the region specified in Schedule-II. Thus, in respect of psychotropic substances, enlisted in Schedule-II, there is complete prohibition on export and Schedule-III contains the list of psychotropic substances, which can be manufactured only for the purpose of export to countries permitted under the NDPS Rules.

84. Let us take, for instance, a psychotropic substance, such as, amfepramone. Amfepramone was earlier a substance listed in Schedule I to the NDPS Rules and, therefore, its manufacture, be it for sale in India or for the purpose of export, was absolutely banned. Over the years, the ban, on the manufacture of amfepramone for the purpose of export, has been lifted and, consequently, one can notice today that amfepramone finds mentioned in Schedule III to the NDPS Rules and not in Schedule I.

85. It may also be noted that 'amfepramone' cannot be exported to Pakistan, Oman and Turkey, because of the ban imposed by Rule 53-A (Schedule II) subject, however, to sub Rule (2) of Rule 53A, which allows export of a narcotic drug or psychotropic substance under special license(sic). Therefore, if amfepramone were to be exported to any country, other than Pakistan, Oman and Turkey, it had to be removed from Schedule I to the NDPS Rules and shifted to Schedule III thereof. If the Government deletes a substance from Schedule I and takes the substance to Schedule III, the general prohibition for use, in India, will still remain, but the prohibition for export will be lifted. Therefore, the ban will be lifted only for manufacture for the purpose of export. This is precisely what has been done in the case of amfepramone.

86. Alprazolam is an item, which found mention in Schedule I in the year 2002, but now it has been de-regulated and, therefore, does not find mention even in Schedule III to the NDPS Rules. This would mean that its manufacture is permitted for sale in India.

87. The other illustration can be of those items, which do not find mention in any of the Schedules, viz, I, II, and III to the NDPS Rules, but have been mentioned in the lone Schedule to the NDPS Act. For a psychotropic substance, which falls in the Schedule to the NDPS Act, but has not been specified in any of the three Schedules to the NDPS Rules, the manufacture and sale of such a psychotropic substance shall still stand prohibited by the NDPS Act except when a license(sic) is obtained for the manufacture and sale thereof, in India, under the Drugs and Cosmetics Rules, 1950 (in short 'D & C Rules').

88. Psychotropic substances have several medicinal uses; but they are also open to abuse. Hence, manufacture of psychotropic substances has to be regulated and, as a matter of fact, do stand regulated by the NDPS Act. No wonder, therefore, that the lone Schedule to the NDPS Act contains a comprehensive list of psychotropic substances. Thus, psychotropic substances can be categorized as indicated below :

Psychotropic substances, whose manufacture is completely prohibited:

These substances are listed in Schedule I to the NDPS Rules. Thus, this is a sub-set of the List of psychotropic substances given in the Schedule to the NDPS Act.

Psychotropic substances, whose manufacture is permitted but only for export:

These substances are listed in Schedule III of the NDPS Rules. This is also a sub-set of the List of psychotropic substances given in the Schedule to the NDPS Act. These are substances, which are not medically used in India, but they are so used in some other countries. Hence, any person, interested in manufacturing these psychotropic substances, can do so but only for export and that too, with a license(sic) issued by appropriate authority.

Psychotropic substances, which can be manufactured for sale in India or for export:

Any psychotropic substance, which is not listed in Schedule I and Schedule III to the NDPS Rules, can be manufactured (for sale in India or for export) after obtaining a license(sic) from the State Drugs Controller under the D & C Act and D & C Rules. Thus, if anyone manufactures a psychotropic substance, covered by the Schedule to the NDPS Act, without a license(sic) from the State Drugs Controller, he, too, shall be liable to punishment under the NDPS Act, for, the NDPS Rules require that a license(sic) shall be obtained in respect of any psychotropic substance, which is mentioned in the Schedule to the NDPS Act.

89. The reason for the above-mentioned regulations can be gathered from the Preamble to the NDPS Act, which states that the NDPS Act is for control and regulations of operations relating to narcotic drugs and psychotropic substances for illicit traffic, trade, manufacture and consumption. This would also mean that psychotropic substances may be deregulated for humanitarian use like those mentioned in Rule 66(2), (3) and Chapter VII-A of the NDPS Rules, of course, by prescribing the dosage.

REASONS FOR SCHEDULES IN THE NDPS ACT & SCHEDULES IN THE NDPS RULES

So far as the Schedule to the NDPS Act is concerned, it will be seen that it contains parent list of psychotropic substances in keeping with international protocol. This concept needs to be further understood from the perspective of Section 8(a),(b),(c), Section 9(1)(a), Section 9 (b), Section 76(2)(a) and Section 76(2)(e). The NDPS Act is the substantive legislations; whereas the rules are the delegated legislation. It is only for this reason that the Schedule to the NDPS Act contains more numbers of psychotropic substances than those in Schedule I to the NDPS Rules. Depending upon the necessity of control and regulation, the executive has been empowered to frame rules so as to effectively control and regulate the manufacture, possession, use and consumption, etc. , of psychotropic substance [Section 9(a)(vi) of the NDPS Act. ] Therefore, if circumstances permit, the authorities concerned can deregulate an item listed in Schedule I to the NDPS Rules and bring the same under the purview of Rule 65(2) or for the purpose of 1st proviso to Rule 65 (export). Such an intention becomes abundantly clear, when one takes note of the expression 'permit and regulate' used by Section 9(a) of NDPS Act.

90. What, therefore, follows is that for those psychotropic substances for which there is absolute ban, as prescribed in Schedule I, mere possession, unless brought under the exception to Chapter VII-A, would amount to an offence under Section 22 of the NDPS Act. At the same time, offence under Section 22 will also be made out if the psychotropic substance is a deregulated substance, but has been manufactured and possessed without license(sic).

91. Now, in respect of those psychotropic substances, which are allowed to be manufactured and consumed, it is necessary that Schedule I to the NDPS Rules exclude those psychotropic substances, which are covered by the Schedule I or III to the NDPS Rules. Again, the manufacture of psychotropic substances, if allowed, has to be by virtue of a license(sic) granted under the D&C; Act. If the manufacture is not by virtue of a license(sic) granted under D&C; Act, it will still attract the penalty under the NDPS Act, because it is only the NDPS Act, which regulates and deregulates psychotropic substances. In other words, a license(sic) to manufacture a psychotropic substance can be permitted for only those psychotropic substances, which have been deregulated under the NDPS Act. If the manufacture is with a licence, but is substandard, the offence will fall under the D&C; Act, because the D&C; Act essentially deals in quality control and ensures that drugs are not misbranded, spuriated and/or adulterated.

92. In the ultimate analysis, it will be seen that NDPS Act is, now, the parent enactment in the sense that the NDPS Act controls use, possession, sale, export, import, manufacture, etc. , of narcotic drugs and psychotropic substances. The decontrolled substances, under the NDPS Act, can be manufactured, sold, consumed, transported, etc. , in accordance the license(sic) granted by the D&C; Act (See Rule 65(1) of the NDPS Rules) and with the quality standards prescribed under the D&C; Act. It also needs to be mentioned that manufacturing, in the present context, carries two meanings; firstly, manufacturing without license(sic) and, secondly, manufacturing with license(sic) but not of standard quality. If the psychotropic substance is manufactured without license(sic), it's a contravention of the NDPS Act. If a drug is manufactured with license(sic), but is misbranded, adulterated or spurious, it will be a contravention of the D&C; Act.

93. The case of Rajinder Gupta (supra), referred to by Mr . Sharma, needs to be understood in the light of the attending facts. In the case of Rajinder Gupta (supra), the accusations against accused Rajinder Gupta was that he had been found in possession of 2,61,000 ampoules of Buprenorphine Hydrochloride Injections. There was accusation of contravention of Rules 66 & 67 of the NDPS Rules. The Court was satisfied that the accused had a license(sic) to deal in such drugs and, hence, granted bail. The following conclusion arrived at in the decision needs to be noted:

Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule H drug would fall within the rigors(sic) of the D and C Act and Rules.

94. From what have been noted above, it become abundantly clear that the Court based its conclusion, in Rajinder Gupta (supra), on two basic findings:

First, that Buprenorphine Hydrochloride is a schedule H drug defined in the D & C Rules, 1945;

Second, that Buprenorphine Hydrochloride is not listed in Schedule I to the NDPS Rules; hence, there is no general prohibition for its manufacture, possession, etc.

95. It will be noticed that the findings were based keeping in mind whether Buprenorphine Hydrochloride is a drug listed in Schedule I to NDPS Rules or not. Thereafter, the only thing, which the Court had to look into was whether the accused had valid documents to deal with Buprenorphine Hydrochloride. The Court, on going through the documents, found them to be valid and issued under proper authority. The Court, therefore, held that no offence under NDPS Act has been made out.

96. As against the case of Rajinder Gupta (supra), the case, at hand, is one, where there are certain distinguishing features, namely, (i) the substance, which was found in possession of Rajinder Gupta, was a psychotropic substance, whereas in the present case, it is a manufactured drug meaning thereby that it is a narcotic drug, (ii) the discussions and reasoning, in the case of Rajinder Gupta (supra), were undertaken with a specific orientation as to whether the substance, found in the possession of Rajinder Gupta, was covered by Schedule I to the NDPS Rules or not. The Court posed questions unto itself and came to the conclusion that Butrenorphine Hydrochloride is a psychotropic substance, but does not fall in Schedule I; hence, its possession is permissible provided a license(sic) is obtained under D & C Rules, 1945. The accused Rajinder Gupta had claimed that he was in possession of a license(sic); hence, it was held that penal provisions contained the NDPS Rules were not attracted.

97. In the present case, it has not been contended that the accused had any valid documents to possess or use the medicines, which were allegedly found in his possession. The quantity of the medicines, as alleged, is also commercial in nature. Thus, on facts, the case of Rajinder Gupta (supra) is quite distinguishable from the one at hand. Otherwise also, Rajinder Gupta (supra) was a case of merely granting or not granting of bail; whereas the case at hand is a case, where the accused are seeking quashing of the entire criminal prosecution.

98. Because of what have been discussed above, I do not find any substance in this Criminal Petition. This Criminal Petition, therefore, fails and the same shall accordingly stand dismissed.