Mehinder Singh Sullar, J.@mdashThe contour of the facts & material, culminating in the commencement, relevant for disposal of instant petition and emanating from the record, is that, on 16.6.2011 at about 11.30 A.M., as soon as, the police party headed by Sarabjit Singh ASI of CIA Staff, Hoshiarpur reached at the spot near Ravi Dass Nagar, in the meantime, a white coloured vehicle was seen coming from the side of village Shergarh. On the basis of suspicion, the driver was signaled to stop the vehicle, but he made an attempt to run away. However, the vehicle was apprehended by the police party. On enquiry, the driver disclosed his name as Santokh Singh son of Chain Singh, caste Jat, Resident of village Jandoli, Police Station Chabbewal (petitioner). The effort was made to associate independent witness from the public, but every person expressed his inability and compulsion to join the investigation. The prosecution claimed that thereafter, the ASI told the accused that he has suspicion that some intoxicated substance was lying in the vehicle and he (accused) has a legal right of search of vehicle before some Gazetted Officer or Magistrate, but the accused reposed faith and confidence in the police party, his statement was recorded and he signed the consent memo in this respect. In the wake of search, one blue coloured bag, containing 500 capsules of Proxyvon, 25 bottles intoxicant make Rextas, 9 bottles make Wincerex and 90 bottles of Rexcof was recovered from the rear seat of the vehicle of the petitioner. Having completed all the codal formalities, the samples from the indicated drugs were taken and sealed in separate parcels. The remaining intoxicated drugs were separately sealed.
2. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that on 16.6.2011, the pointed commercial quantity of NDPS drugs was recovered from the possession of the petitioner-accused. In the background of these allegations and in pursuance of the ruqqa sent by ASI Sarabjit Singh, the present case was registered against the petitioner-accused, vide FIR No. 76 dated 16.6.2011 (Annexure P4), on accusation of having committed an offence punishable u/s 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred to as "the NDPS Act") by the police of Police Station Sadar Hoshiarpur.
3. Instead of submitting to the jurisdiction of trial Court, the petitioner-accused straightway jumped to file the instant petition to quash the impugned FIR (Annexure P4) and all other consequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC.
4. The case set up by the petitioner, in brief in so far as relevant, was that he was running a Chemist shop in the name & style of M/s. Bassan Medical Store Islamabad, District Hoshiarpur, by virtue of chemist licence (Annexure P1), issued by the State Drugs Controller-cum-Licensing Authority, Punjab. The petitioner was stated to have purchased the recovered medicines, vide bills dated 14.6.2011 (Annexure P2) and 15.6.2011 (Annexure P3) from Suman Pharmaceuticals & Mahavir Medical Agencies, Wholesale Pharmaceutical, Hoshiarpur respectively. It was claimed that the indicated recovered drugs are not covered under the Schedule/provisions of the NDPS Act. On the strength of aforesaid grounds, the petitioner sought to quash the impugned FIR (Annexure P4) and all other subsequent proceedings arising thereto, in the manner depicted herein-above.
5. The respondent-State refuted the prayer of the petitioner and filed the reply, inter-alia pleading certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. The prosecution claimed that the aforesaid narcotic drugs were recovered from the possession of the petitioner, who did not show any permit or licence to keep them in his possession. Instead of reproducing the entire contents of the reply and in order to avoid repetition, suffice it to say that the respondent has reiterated the allegations contained in the FIR (Annexure P4). However, it will not be out of place to mention here that the State has stoutly denied all other allegations contained in the main petition and prayed for its dismissal.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present petition in this context.
7. Ex facie, the argument of learned counsel that the State Drugs Controller, Punjab issued a chemist licence (Annexure P1) to M/s. Bassan Medical Store and since the manufactured drugs were recovered from the possession of petitioner, so, no offence punishable u/s 22 of the NDPS Act is made out against him, is not only devoid of merit but misplaced as well.
8. As is evident from the record that the pointed commercial quantity of Narcotic Drugs were recovered from the possession of petitioner without any permit or licence issued under the provisions of the NDPS Act.
9. Above being the position on record, now the short & significant question, though important, that arises for determination in this petition is, as to whether the possession of such drugs are exempted from the purview of NDPS Act or not?
10. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative as the provisions of NDPS Act are fully attracted to the case of petitioner. This matter is no more res integra and is now well settled.
11. What cannot possibly be disputed here is that the following two questions came to be decided by a Coordinate Bench of this Court (Paramjeet Singh, J.) in 2013 (1) R.C.R. (Criminal) 428 : CRM No. M-9327 of 2012 titled as "Vinod Kumar v. State of Punjab" and bunch of connected petitions, by means of order dated 1.6.2012:-
(i) Whether exact quantity (total mass) of the contraband recovered from offender or percentage of Narcotic drugs/Psychotropic Substances seized is to be taken into consideration in relation to manufactured drugs and preparations? If so its effect.
(ii) Whether Manufacturers, Chemists, Wholesale license holders under the Drugs and Cosmetics Act, 1940 possessing controlled substances and manufactured drugs/prescription drugs are also required to comply with the statutory provisions of the NDPS Act, Rules and Order 1993 for their possession? If so its effect.
12. After considering the relevant provisions, rules framed under the NDPS Act, the Drugs & Cosmetics Act, 1940 and various judgments, it was ruled as under:-
Re: Question No. (i)
i) As the contraband seized is either a mixture or a preparation with or without a neutral material, of any Narcotic Drug or Psychotropic Substance falling within the scope of entry No. 239 of the notification dated 19.10.2001 issued in S.O. No. 1055(E) of the Central Government. It is absolutely necessary to conduct Pure Content Test to ascertain the exact quantity of the Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation. In the absence of Pure Content Test, the whole contraband seized shall not be considered as such. However, in all the cases registered on or after 17.11.2009, there is no necessity to conduct pure content test to ascertain the exact quantity of Narcotic Drugs, Psychotropic Substances and Manufactured Drugs. The whole contraband seized shall be considered as such even if it comes within the definition of Entry No. 239.
ii) In the case of a contraband, which is neither a mixture nor a preparation falling within the sweep of entry No. 239 and if the contraband is a Narcotic Drug/Psychotropic Substance simplicitor, there is no need for Purity Test and in such cases, the entire quantity of Narcotic Drug/Psychotropic Substance shall be taken into consideration for deciding as to whether the same is a small quantity or a commercial quantity or an intermediate quantity for the purpose of conviction and sentence will be imposed accordingly.
As regards the question No. 2 is concerned, it was held that the manufacturers of manufactured drugs or prescription drugs, chemists, wholesale license holders under the Drugs and Cosmetics Act are required to comply with the provisions of NDPS Act, Rules and Order, 1993 for the possession of narcotic drugs, psychotropic and controlled substances.
13. Therefore, the above depicted observations "mutatis mutandis" are applicable to the facts of the present case and are the complete answer to the problem in hand, which negate the contentions, now sought to be urged on behalf of the petitioner in the instant case.
14. Not only that, there is yet another aspect of the matter, which can be viewed from entirely a different angle. The alleged chemist licence (Annexure P1) issued in the name of firm M/s. Bassan Medical Store, wherein one Pardeep Kumar, registration Ph. No. 016186 was only authorized/competent person to sell the non-biological/biological (narcotic drugs) and not the petitioner, who has only been shown as constituent of the firm. Therefore, even the chemist licence (Annexure P1) and bills (Annexures P2 & P3) will not come to the rescue of the petitioner in any manner, particularly when the genuineness and validity of these documents are yet to be proved.
15. Moreover, the Hon''ble Supreme Court has authoritatively held, in a celebrated judgment in case
(i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
16. Not only that, again the Hon''ble Apex Court in case
16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court u/s 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.
17. Therefore, the Bench mark set out in the aforesaid judgments and essential ingredients for quashing the impugned FIR (Annexure P4) at this initial stage are totally lacking in the present case. Hence, the contrary arguments of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed in the obtaining circumstances of the case. Needless to say that nothing observed, herein-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant direction.
