Criminal Writ Petition No.913 of 2013

25th March, 2014

Petitioner Counsel: Mr. V.D. SAPKAL, with Mr. GANESH V. MOHEKAR
Respondent Counsel: Mr. ALOK SHARMA

Cases Cited:
State of Uttaranchal Vs. Rajesh Kumar Gupta, 2007 ALL SCR 145=2006 DGLS (Soft) 780 : 2007(1) SCC 355 [Para 8,15]
Rajesh Sharma Vs. Union of India, 159 (2009) DLT 559 [Para 8]
Pradeep Dhond Vs. Intelligence Officer, Narcotics Control Bureau, Bellard Estate and Anr., Cri. Appl./6787/2005, Dt.7/2/2006 [Para 8]
D.Ramakrishnan Vs. Intelligence Officer, Narcotic Control Bureau, 2009 ALL SCR 2789=2009-EQ(SC)-0-1102 [Para 9]
Union of India Vs. Jagdish Singh and another, 2012 ALL MR (Cri) 482=2011-EQ(Bom)-0-283 [Para 9]
Sujal Vijaybhai Patel Vs. State of Gujarat, [Para 9]
Collector of Customs, New Delhi Vs. Ahmadalieva Nodira, (2004) 3 SCC 549 [Para 9]

JUDGMENT

K.U. CHNDIWAL, J. :- Heard. Rule, made returnable forthwith. Heard finally by consent of the parties.

2. Writ petitioner questions legality of notification dated 10th Feb., 2011, issued by respondent no.3 for inclusion of ketamine as psychotropic substance listed in Schedule of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "N.D.P.S. Act"), at Sr.No.110-A as unconstitutional, arbitrary and illegal, and so also, as it was not placed before each of the Houses of Parliament within 30 days in view of Section 77 of the N.D.P.S.Act.

3. Mr. Sapkal, learned Counsel, with Mr. Mohekar, does not press afore referred relief, however, he has confined to the prayer clauses B-1 to B-4, which read as under:

"B-1. By issuing writ of certiorari or any other appropriate writ, order or direction like in the nature, this Hon'ble Court may kindly pleased to quash and set aside the Charge Sheet No. _/2013 and prosecution in N.D.P.S. Special Case No.2/2013 pending before the Hon'ble Ld. Special Judge for N.D.P.S. cases at Aurangabad holding that the detention of the petitioner is violative of Article 21 of the Constitution of India.

B-2) It may kindly be hold and declare that, there is no amendment to the Schedule1 of N.D.P.S. Rules, 1985, showing the psychotropic substance i.e. Ketamine as a prohibited substance in view of the settled position of law.

B-3) It may kindly be hold and declare that, the arrest and detention of the petitioner is illegal and is contrary to and violative of Article 21 of the Constitution of India.

B-4) Pending hearing and final disposal of present criminal writ petition, enlarge the petitioner on Regular Bail on such terms and conditions as this Hon'ble Court may deem fit and proper in pursuance of the Crime bearing C.R.No.NCB/BZU-CR-08/12 registered with Respondent Narcotic Control Bureau, Mumbai for offence punishable U/s. 8(c), 22(c), 29 of the N.D.P.S.Act, 1985, and for that purpose issue necessary orders.

4. FACTS:

a) On 27.8.2012, on receiving secret information, Narcotic Control Bureau (for short "N.C.B.") officials of Mumbai conducted raid on factory premises of M/s Vyankatesh Remedies, Plot No.M-119, MIDC Waluj, Aurangabad. They seized 84.430 kgs of Ketamine, a psychotropic substance, under panchnama drawn on 27.8.2012. According to the prosecution, seized contraband was manufactured at the premises of accused no.1 Devendra Deshmukh and accused no.2 Dhananjay, without any licence / authority. During the process, statements under Section 67 of the N.D.P.S.Act were recorded. Nagesh, original accused no.3, is before this Court for offense under Section 8(c) read with 22 and 29 of N.D.P.S.Act. He was arrested on 30th August, 2012. Bail Application No.1500/2012 moved before the learned Special Judge was rejected by order dated 6/11/2012. Bail application in Special Case No.228/2013 was also rejected by passing order below Exh. 7 & 8 on 27.5.2013. The bail application moved before this Court of the accused / applicant was withdrawn as not pressed. However, another application being Application No.395/2014 is pending before learned Single Judge of this Court.

5. Pre-dominant submission of Mr. Sapkal, learned Counsel for accused / applicant is, Ketamine, a psychotropic substance is not covered under Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short "Rules of 1985"), and consequently, inclusion of Ketamine at Sr. No.110-A by virtue of amendment / insertion dated 10th Feb., 2011, in N.D.P.S. Act, in its schedule, will not bring the case of the accused / applicant in its ambit, and to face its rigours and, therefore, the accused / applicant is entitled to seek quashing the prosecution being Special Case No.2/2013.

6. It is clear, as of today, the applicant / accused has not preferred any discharge application before the learned Special Judge at Aurangabad.

7. Mr. Sapkal, learned Counsel, has pointed that Government notification dated 21st June, 2011, provides for a small quantity of Ketamine to be 500 gms and, apparently, the seizure is of commercial quantity. Mr. Sharma says, he has to verify whether 500 gms Ketamine could be small quantity.

8. Mr. V.D.Sapkal, learned Counsel, in order to stress his point, has placed reliance to the judgment of the Hon'ble Supreme Court in the matter of State of Uttaranchal Vs. Rajesh Kumar Gupta (2006 DGLS (Soft) 780 : 2007(1) SCC 355) : [2007 ALL SCR 145] and also to the judgment of the Division Bench of High Court of Delhi in Rajesh Sharma Vs. Union of India reported in 159 (2009) DLT 559) decided on May 6th, 2009. He has also placed reliance to the order of learned Single Judge of this Court in Criminal Application No.6787/2005 dated 7th Feb., 2006 (Pradeep Dhond vs. Intelligence Officer, Narcotics Control Bureau, Bellard Estate and Anr.) wherein said Pradeep was directed to be released on bail in terms of Section 37 of N.D.P.S.Act.

9. Mr. Alok Sharma appearing for respondent N.C.B., has placed reliance to (1) the judgment of Hon'ble Supreme Court in the matter of D.Ramakrishnan Vs. Intelligence Officer, Narcotic Control Bureau (2009-EQ(SC)-0-1102) : [2009 ALL SCR 2789], (2) to the judgment of learned Single Judge of this Court in the matter of Union of India vs. Jagdish Singh and another (2011-EQ(Bom)-0-283) : [2012 ALL MR (Cri) 482], (3) to the judgment of learned Single Judge of Gujrath High Court in the matter of Sujal Vijaybhai Patel vs. State of Gujarat, (4) to the judgment of Hon'ble Supreme Court (three Judges Bench, in matter of Collector of Customs, New Delhi vs. Ahmadalieva Nodira ((2004) 3 SCC 549).

10. After hearing both the learned Counsel extensively and reading the judgments, as indicated by them, few facts are to be reproduced as not in controversy. Ketamine found with the accused was without any valid licence to possess, transport, export, import or to deal with in any categories. The applicant does not carry / possess any license under the Drugs and Cosmetics Act, 1940. The rigour of Section 29 of N.D.P.S. Act is made applicable qua the applicant.

11. Section 2 sub-section (23) deals with "Psychotropic substance" which 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;

Section 8(c) N.D.P.S.Act conceive as under:

"(c) Produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State,export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance,

.. .."

12. Sections 9 and 78 of N.D.P.S.Act, are reproduced here-in-below,

"9. Power of Central Government to permit, control and regulate.

(1) Subject to the provisions of Section 8, the Central Government may, by rules-

(a) Permit and regulate-

(i) ... ... ...

(ii) ... ... ...

(iii) ... ... ...

(iv) ... ... ...

(v) The manufacture of manufactured drugs (other than prepared opium,) but not including manufacture of medicinal opium or any preparation containing any manufactured drug from materials which the maker is lawfully entitled to possess;

(vi). The manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption or use of psychotropic substances;

(vii) The import into India and export from India and transhipment of narcotic drugs and psychotropic substances;

(b) Prescribe any other matter requisite to render effective the control of the Central Government over any of the matters specified in clause (a).

(2) In particular and without prejudice to the generality of the foregoing power, such rules may-

(a) ... ... ...

(b) ... ... ...

(c) ... ... ...

(d) ... ... ...

(e) ... ... ...

(f) ... ... ...

(g) ... ... ...

(h) ... ... ...

(i) ... ... ...

(j) ... ... ....

9A. Power to control and regulate controlled substances

(1) If the Central Government is of the opinion that having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the power conferred by subsection (1), and order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import interstate, export interstate sale, purchase, consumption, use, storage distribution, disposal or acquisition of any controlled substance.]

78. Power of State Government to make rules.

(1) Subject to the other provisions of this Act, the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) The conditions and the manner in which narcotic drugs and psychotropic substances shall be supplied for medical necessity to the addicts registered with the State Government and other under sub-section (1) of Section 71;

(b) The establishment, appointment, maintenance, management, superintendence of centres established under sub-section (1) of section 71 and appointment, training, powers and duties of persons employed in such centres;

(c) Any other matter which is to be, or may be prescribed.

(3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the Legislature of that State."

Thus, it is clear that the Rules the Central Government has framed, to permit or regulate the operations, are subject to provisions of Section 8. Section 8 prohibits any operation in respect of Narcotic Drugs or Psychotropic substances; except for medicinal or scientific purposes. Thus, under Section 9, the Government may frame Rules to permit and regulate such operations as per exceptions to Section 8, and not in contravention of the same. The Hon'ble Supreme Court has already indicated effect and implications of Section 8 in paragraph no.20. Reading the same in juxtaposition with the Rules, it is vivid, for want of any statutory license either under the N.D.P.S.Act or under the Drugs and Cosmetics Act, 1940, the applicant could not possess or abet commission of offense punishable under Section 8(c), 22 read with Section 29 of the N.D.P.S.Act.

Section 22 provides punishment for contravention in relation to psychotropic substances. Section 22 (c) contemplates,

"Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

..."

Section 29 of the N.D.P.S. Act contemplates Punishment for abetment and criminal conspiracy:

"(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence."

13. Section 35 of N.D.P.S. Act provides presumption of culpable mental state in any prosecution for offense under the Act which requires culpable mental state of the accused. The court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation provides "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

Section 3 of the Indian Evidence Act, 1872 deals with "Fact" which means and includes-

(1) any thing, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious.

14. Mr. Sapkal says, under N.D.P.S. Rules, 1985, there are only 45 prohibited items which do not include Ketamine and, consequently, it will not invite rigour as contemplated under Sections 8(c), 22, 29 or 37 of N.D.P.S.Act. In the beginning, he was asked whether his clients possess license to procure psychotropic substances, either under any of the Statute or under Drugs and Cosmetics Act, 1940. He, candidly, accepted, his client does not possess such license to carry, transport, acquire, manufacture any psychotropic substances or its possession or user for medicinal purposes as indicated under the Drugs and Cosmetics Act, 1940. At this effect primarily parameters indicated in Sections 8(c) or 35 of NDPS Act cannot be skipped.

15. Hon'ble Supreme Court has, in the matter of State of Uttaranchal Vs. Rajesh Kumar Gupta, [2007 ALL SCR 145] in paragraph no.20, dealt with general provisions contained in both Rules 53 and 64 which refer only to the drugs and psychotropic substances specified in Schedule-I. It was also observed, it is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule-I of the Rules prescribes only 35 drugs and psychotropic substances (at the relevant time). In the said case medicines were seized from clinics which were within the purview of Schedule G and H of the Drugs and Cosmetics Act, 1940. The said applicant Rajesh Kumar Gupta and their firm had license under the Drugs and Cosmetics Act, 1940.

In the case of Rajesh Kumar Gupta, the accused was Ayurvedacharya, and allegation against him was that in medicines supplied he was using unlabelled tablets containing psychotropic substances and thereby making the unsuspecting patients addicted to the drugs. His clinic and premises were raided and 70 kgs. pure phenobarbitone were recovered. The accused therein was allegedly dispatching said drugs by post. Hon'ble Supreme Court analyzed various provisions of N.D.P.S.Act and Rules, including Sections 8, 22 of the N.D.P.S.Act, and Rule 53 of the Rules. While construing the prohibition contained in Section 8 of the N.D.P.S.Act, the Hon'ble Supreme Court observed as under:

"The said provision contains an exception which takes within its fold all the classes of cases preceding thereto. Use of the contraband for medical or scientific purposes is, therefore, excluded from the purview of the operation thereof. However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder."

16. In the matter of Rajesh Kumar Gupta, the Hon'ble Supreme Court has observed as under:

"It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Act. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlorodiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in the Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder."

17. It is more than clear, as stated earlier that, the applicant cannot bank upon recourse and impetus of Rule 53 or Rule 58 and 68 of N.D.P.S.Rules, 1985 because-

(a) Firstly, the applicant does not possess any license as is required under the Drugs and Cosmetics Act, 1940, and;

(b) Secondly, effect of N.D.P.S. Rules, 1985, will not turn statutory provisions contained in Section 2(23) of the N.D.P.S.Act, coupled with Sections 8, 22 and 29, otiose. There will not be supremacy of the Rules to the statutory arrangement. This legal position has been indicated in the pronouncement of the Apex Court in the judgment of three Judges in the matter of Collector of Customs, New Delhi vs. Ahmadalieva Nodira ((2004) 3 SCC 549).

18. Section 80 of the N.D.P.S.Act provides 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.

19. Section 76 of the N.D.P.S. Act conceive power of Central Government to make Rules which provides, subject to the other provisions of this Act, the Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. The very opening line indicates, that powers of making Rules contained in Section 76 will not have overriding effect to the statutory indications of N.D.P.S. Act 1985. The Schedule I to the N.D.P.S.Act shall have prevailence to the statutory arrangement or otherwise in N.D.P.S. Rules, 1985. It is explicit, Rules will not eclipse the NDPS Act or Schedule showing catamine as a psychotropic substance.

20. The challenge to the prosecution by the applicant, in the situation referred to above, is not maintainable. The legal procedure, primarily, has been adhered to by the authorities. The applicant, it appears, having failed in his attempt to seek bail in terms of Section 37 of N.D.P.S. Act has, by an escape to Section 37, questioned the proceedings before this Court.

Writ Petition lacks merit, dismissed. Rule discharged. The observations are to be restricted to the point raised by the applicant.

Petition dismissed.