# Hemant Kumar Saini v. U.O.I. & Ors

- **Citation:** (2021) 7 ILRA 589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Misc. Bench No. 11190 of 2021
- **Bench:** Ramesh Sinha, Narendra Kumar Jauhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-saini-v-u-o-i-ors-47231
- **Pages:** 19

## Headnote

Law
-
Narcotic
Drugs
&
Psychotropic
Substances
Act,
1985
-
Section 65 - Power to call for information,
-
notice
is
merely
for
enquiry/interrogation - Constitution of
India, Article 226 - Writ of Certiorari - to
quash notice/summon issued u/s 67 - writ
petition against such a kind of notice
should not ordinarily be entertained - It is
pre-mature in nature because notice by
itself does not give rise to cause of action,
as no adverse order has yet been passed -
in the event of adverse decision, it will
certainly be opened to accused persons to
assail
the
same
in
appropriate
proceedings under the law - Undoubtedly
in certain conditions, when there is a
question of infringement of fundamental
right or on the point of lack of jurisdiction,
such notice/summon can be challenged
(Para 50)

Case of petitioners is at the stage of
investigation & the notice/summon u/s 67 has
been issued to petitioners only for the
satisfaction of investigating officer that whether
there has been any contravention of the
provisions of the N.D.P.S. Act,1985 or not - It is
quite possible that in the enquiry if the evidence
comes before the Investigating Officer that the
Firm of petitioners has not violated N.D.P.S. Act,
1985 as well as Drugs and Cosmetics Act, 1940,
the enquiry/Investigating Officer of NCB may
submit its report accordingly and the petitioners
may be exonerated from prosecution (Para 50)

Dismissed.(E-4)
590 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

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7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
589
and does not call for interference in the
same except in rarest of rare cases.

(24) Keeping in view the aforesaid
law and considering the submissions raised
by learned counsel for the petitioner, we are
of the considered view that the submissions
advanced by the learned Counsel for the
petitioner
call
for
determination
on
questions of fact which may be adequately
discerned
either
through
proper
investigation or which may be adjudicated
upon only by the trial court and even the
submissions made on points of law can also
be more appropriately gone into only by the
trial Court in case a charge sheet is
submitted in this case. The perusal of the
record makes out, prima facie, offences at
this stage and there appears to be sufficient
ground for investigation in the case.

(25) In view of the aforesaid,
considering the allegations made in the FIR
and material brought on record, it cannot be
said that no prima facie case is made out
against the petitioner, rather there appears
to be sufficient ground for investigation in
the matter. Accordingly, we do not find any
justification to quash the impugned F.I.R.

(26) The petition lacks substance and
is, accordingly, dismissed.
----------
(2021)07ILR A589
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE NARENDRA KUMAR
JAUHARI, J.

Misc. Bench No. 11190 of 2021
&
Misc. Bench No. 11396 of 2021

Hemant Kumar Saini ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Ayodhya Prasad Mishra, Rituraj Mishra

Counsel for the Respondents:
G.A., Akhilesh Awasthi

Criminal
Law
-
Narcotic
Drugs
&
Psychotropic
Substances
Act,
1985
-
Section 65 - Power to call for information,
-
notice
is
merely
for
enquiry/interrogation - Constitution of
India, Article 226 - Writ of Certiorari - to
quash notice/summon issued u/s 67 - writ
petition against such a kind of notice
should not ordinarily be entertained - It is
pre-mature in nature because notice by
itself does not give rise to cause of action,
as no adverse order has yet been passed -
in the event of adverse decision, it will
certainly be opened to accused persons to
assail
the
same
in
appropriate
proceedings under the law - Undoubtedly
in certain conditions, when there is a
question of infringement of fundamental
right or on the point of lack of jurisdiction,
such notice/summon can be challenged
(Para 50)

Case of petitioners is at the stage of
investigation & the notice/summon u/s 67 has
been issued to petitioners only for the
satisfaction of investigating officer that whether
there has been any contravention of the
provisions of the N.D.P.S. Act,1985 or not - It is
quite possible that in the enquiry if the evidence
comes before the Investigating Officer that the
Firm of petitioners has not violated N.D.P.S. Act,
1985 as well as Drugs and Cosmetics Act, 1940,
the enquiry/Investigating Officer of NCB may
submit its report accordingly and the petitioners
may be exonerated from prosecution (Para 50)

Dismissed.(E-4)
590 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Ashok Kumar Vs U.O.I., Cri. Misc. Case
No.2976 of 2014 dt 15.10.2014

2. Ram Dayal Mathur Vs U.O.I. W.P. No.8953 of
2013 (MB)

3. St.of Punjab Vs Rakesh Kumar (2019) 2 SCC
466

4. Ram Dayal Mathur Vs U.O.I. MB No. 8953 of
2013 dt 03.04.2015

5. St. of Uttaranchal Vs Rajesh Kumar Gupta
2007 (1) SCC 355

6.
U.O.I.
Vs
Sanjeev
V.
Despande,
MANU/SC/0688/2014

7.
Niharika
Furniture
Vs
St.
of
Mah.,
MANU/SC/0272/2021

(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Narendra Kumar Johari, J.)

(The judgment is pronounced in
terms of Chapter VII Sub-rule (2) of
Rule (1) of the Allahabad High Court
Rules, 1952 by Hon'ble Ramesh Sinha,
J.)

1. Writ Petition (Misc. Bench)
No.11190 of 2021 has been filed by the
petitioner, Hemant Kumar Saini, one of the
partners of the Firm M/s Preksha Trading
Company, with the following main reliefs :-

(i) Issue a writ, order or direction
in the nature of Certiorari for quashment of
the notice/summon issued under section 67
of
Narcotic
Drugs
&
Psychotropic
Substances Act, 1985 dated 13.05.2021 by
the Narcotics Control Bureau Lucknow
relating crime no.16/2021 registered at
Police Station - Kotwali District - Varanasi
on 05.04.2021 under section 8/21/29 of
N.D.P.S. Act and similarly subsequent
summon if any issued by investigating
officer/opposite party no.3 contained as
Annexure No.1 alongwith the present Writ
Petition.

(ii) Issue a writ order or direction
in the nature of Mandamus Commanding
and
directing
the
opposite
parties
particularly opposite party no.2 to 4 not to
arrest and harass the petitioner
in
pursuance of the impugned notice/summon
issued under section 67 of NDPS Act dated
13.05.2021 by the N.C.B. Lucknow relating
crime no.16/2021 registered at Police
Station - Kotwali, District - Varanasi on
05.04.2021 under section 8/21/29 of
N.D.P.S. Act during the pendency of the
present writ petition, in the interest of
justice."

2. After amendment in the prayer
clause
(Crl.
Misc.
Application
No.76529/2021), following prayer has been
added by learned counsel for the petitioner
:-

"(v) It is also prayed that this
Hon'ble Court may kindly be pleased to
issue a writ in the nature of certiorari for
quashing of FIR as recorded under section
42 of NDPS Act and entire investigation
which is being carried in pursuance thereof
conducted by the investigating officer of the
department of Narcotics Control Bureau,
Lucknow, in the interest of Justice."

3. Almost on the same grounds,
another
Writ
Petition
(Misc.
Bench)
No.11396 of 2021 has been filed by
petitioner Yogita Nand Yadav, the another
partner of the Firm M/s Preksha Trading
Company, with the following main reliefs :-

(i) Issue a writ, order or direction
in the nature of Certiorari to quash the
investigation
of
NCB
case
crime
7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
591
no.16/2021 under section 8/21/29 of NDPS
Act registered on 03.04.2021 in the office of
Narcotics Control Bureau, Lucknow under
section 42 of NDPS Act through Form
NCB-1 and notice/summons issued under
section
67
of
Narcotics
Drugs
&
Psychotropic Substances Act, 1985 dated
13.05.2021 by the Narcotics Control
Bureau, Lucknow and subsequent recovery
effected on 05.04.2021 at Varanasi and
similarly subsequent summon if any issued
by investigating officer/opposite party no.3
so far as against the petitioner is concern
contained as Annexure No.1 along with
the present Writ Petition.

(ii) It is further prayed that the
petitioner is ready to appear again before
investigating officer as already appeared on
12.04.2021 and this Hon'ble Court may
kindly be pleased to direct the investigating
officer to not arrest the petitioner after
recording his statement if any and the
investigating officer first consider about the
question of jurisdiction for making search,
seizure and investigation in the interest of
justice.

(iii) Issue a writ order or direction
in the nature of Mandamus Commanding
and
directing
the
opposite
parties
particularly opposite party no.2 to 4 not to
arrest and harass the petitioner in pursuance
of the impugned notice/summon issued under
section 67 of NDPS Act dated 13.05.2021 by
the
N.C.B.
Lucknow
relating
crime
no.16/2021 registered at Police Station -
Kotwali, District - Varanasi on 05.04.2021
under section 8/21/29 of N.D.P.S. Act during
the pendency of the present writ petition, in
the interest of justice.

4. Since both the writ petitions have
been filed by the petitioners on almost similar
facts and grounds, therefore, both the writ
petitions have been heard together and are
being decided with a common judgment.

5. The brief facts which have emerged
from the case of prosecution need to be
noted at the very outset.

6. A specific information provided to
Narcotics Control Bureau authority by an
informer that huge quantity of codiene
based syrup have illegally been stored in
the shop/godown No.09 and Shop No.31 of
Gyan Mondal Plaza @ Imam Mondal Plaza
@ Aaj Press Building, Sant Kabir Marg
near Maidagin Chauraha, Police Station
Kotwali, Varanasi, by one Sunil Jaiswal.
The information was reduced in writing by
the authorities of the Narcotics Control
Bureau (hereinafter referred to as "the
N.C.B.") in NCB-I format and submitted to
superior
officer,
i.e.
Superintendent,
N.C.B., Lucknow on 03.04.2021. A team
was constituted consisting of Shri Raj
Kumar Shaw, Intelligence Officer, Shri
Kumar, Sepoy and Shri Manjeet, Driver,
for further action as per provisions of
Narcotic Drugs & Psychotropic Substance
Act, 1985 (hereinafter referred to as "the
N.D.P.S. Act,1985). The aforesaid team
reached Varanasi along with necessary
articles and meet the S.H.O., Kotwali
Varanasi and shared the information to
procure police party. The information was
also communicated to Drug Inspector,
Varanasi. The N.C.B. team along with
police personnel and Drug Inspector,
Varanasi reached at the suspected shops on
05.04.2021. The shops in question, i.e.
Shop Nos. 09 and 31 were found locked.
The team tried to contact to Sunil Jaiswal
but after repeated calls and long waiting,
said Sunil Jaiswal did not appear before the
team to open the shops. The team inquired
592 INDIAN LAW REPORTS ALLAHABAD SERIES
about Sunil Kumar Jaiswal through his
brother's shop also but Sunil Jaiswal could
not be contacted. Then the team arranged a
local key maker, Abhishek Jaiswal, who
opened the lock of both the premises in
presence of independent witnesses. The
Shop No.09 was found fully packed with
medicines.

7. The following medicines (Codeine
based syrups) were recovered from Shop
No.09 :-

Serial
No.
Name
of
Medicine
Quantity
1.
Onerex Cs
30240 Bottles
2.
Onerex Cs
42600 Bottles
3.
Welcyre
4200 Bottles
4.
Plencyre
6480 Bottles
5.
CC Kuffs + 24624 Bottles
6.
CC-Kuffs + 3888 Bottles

Total
112032 Bottles

From Shop No.31, following
drugs were recovered :-

Serial
No.
Name
of
Drug
Quantity
1.
Onerex CC
cough syrup
2520 Bottles
2.
Welcyrex
720 Bottles

Total
3240 Bottles

8. Certain documents, like registration
certificate, copies of bank pass-book, PAN
Card, AADHAR Card, GST Certificate,
appointment receipt of passport and ITR
were also recovered from the Shop No.31.
The Drug Inspector took four bottles of
each batch of Codeine based syrup as
sample, rest of the recovered medicines
were seized and sealed by the N.C.B. Brass
seal. After completion of search and seizure
of
both
the
shops
in
presence
of
independent witnesses and joint team of
N.C.B., Police and Drug Inspector, searchcum-seizure memo was prepared on the
spot. All the legal formalities were
completed by the team without causing any
damage to any person or property. Both the
shops were locked by the new locks
purchased by the N.C.B. team.

9. Learned counsel for the petitioners
submitted that petitioners are running a
medical shop for sale and purchase of
medicines under the valid license granted
by
the
competent
authority
under
partnership with other person, namely,
Sunil Kumar Jaiswal under the name and
style of M/s New Preksha Trading
Company, having its godown in House
No.62/16, Saptsagar, Medicine Market,
Maidagin,
Post
Visheswarganj,
Police
Station - Kotwali, District Varanasi. The
licence was effective from 19.07.2018 for
sale, purchase and stocking of medicines.
The petitioners have no criminal history in
their credit and they are ready to co-operate
with the investigation, but well established
apprehension is that whenever they will
appear before the Investigating Officer,
without fair and proper investigation, by
making pressure and threat, just to get
undue advantage being in custody, the
petitioners may be arrested and send to jail.
The
authorities
of
N.C.B.
have
no
jurisdiction to make search and seizure and
also to issue notice under Section 67 of
N.D.P.S. Act, 1985.

10.

Learned
counsel
for
the
petitioners further submitted that on the
basis of seizure memo dated 05.04.2021,
7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
593
the N.C.B. officials registered a case vide
Crime No.16/2021, on 05.04.2021, under
Section 8/21/29 of N.D.P.S. Act,1985,
against the accused Sunil Kumar Jaiswal.
The authorities of N.C.B. also issued notice
to petitioners under Section 67 of N.D.P.S.
Act,1985, which is without jurisdiction and
against the mandates of N.D.P.S. Act, 1985
as well as Drugs and Cosmetics Act, 1940.
The officers of N.C.B. broken the locks and
seized the shop illegally and without any
jurisdiction. The medicines were kept in
godown under the valid licence granted by
the concerned authorities. The cough syrup
Onerex, CC cough syrup, Welcyrex,
Plencyrex cough syrup, Plencyrex and RCKUFFS (Plus) are medicines of schedule H
(1) of the Drugs & Cosmetics Act with the
leveling of Rx. The cough syrups were
purchased
by
the
Wind
Biotech
[manufactured Onerex and RC-KUFFS
(Plus)] and so far as Welcyrex and
Plencyrex are concerned, the same were
manufactured by the Similax Health Care
Pvt. Ltd., Baddi, Himanchal Pradesh. Both
firms are reputed and having valid license
for manufacturing medicines. The said
cough syrups were purchased from the
firms which are registered, namely, Sri
Radha Medical Agency and M/s A.R.
Pharma and S.K. Drug Agency, situated at
Varanasi. All the three firms are also
running under the valid licence granted by
the Drugs and Cosmetics Authority. The
partnership firm of petitioners M/s Preksha
Ayurvedics is having valid licence to carry
the business of sale and purchase. If the
entire prosecution story is taken as it is,
even the provisions of N.D.P.S. Act, 1985
are not attracted at all. It may be the case of
petitioners falling under the provisions of
Drugs and Cosmetics Act, 1940. The
petitioners have been sent a notice which is
cryptic in nature and on the printed
proforma without recording any ground
of enquiry or fact which is necessitated to
send in the name of petitioners.

11. It has further been submitted by
learned counsel that the petitioners have
been granted licence for carrying out the
medical store business for sale, stock,
exhibit for sale or distribute by whole sale
drugs specified in Schedule C and C (1) of
the Schedule of Drugs and Cosmetics Act,
1940.

12.

Learned
counsel
for
the
petitioners has further submitted that the
co-accused (one of the partners, namely,
Sunil Jaiswal) was arrested when he
appeared to record statement and to
cooperate in the investigation and inquiry,
on 15.05.2021, which is illegal. The
petitioners also apprehend that they may be
arrested by Investigating Officer on his
appearance. No illegal act has been done by
the petitioners because the alleged codeine
syrup is medicine of Schedule 'H', for
which they have been granted license for its
stock, sale, purchase, etc.

13. Learned counsel for petitioners
submitted that the cases of petitioners are
squarely covered by the judgment of this
Court passed in the case of Ashok Kumar
through (Brother) Rakesh Kumar Pawar
Vs. Union of India, under Section 482
Cr.P.C. No.2976 of 2014, decided on
15.10.2014, as well as Writ Petition
No.8953 of 2013 (MB) Ram Dayal Mathur
Vs. Union of India, in which the Court has
quashed the notice under Section 67 of
N.D.P.S. Act, 1985.

14.

Learned
counsel
for
the
petitioners has further submitted that
594 INDIAN LAW REPORTS ALLAHABAD SERIES
notification issued on 26.10.2005, by the
Directorate General of Health Service and
again issued in March, 2009, by which it
has been clarified by the highest authority
under the Drug and Cosmetics Act, 1940
that number of cough syrup preparations
contained codeine only by virtue of the fact
that these preparation contains codeine and
its salts, did not fall under the provisions of
N.D.P.S. Act, 1985 and Narcotic Drugs and
Psychotropic Substances Rules, 1985. They
fall under Schedule 'H' of the Drugs and
Cosmetics Rules, 1945 and such drugs are
governed by the said rules. The recovered
cough syrup contains less than the
permitted quantity of codeine per does unit
and it will not fall within the definition of
Section 2 (xi) (b) of the N.D.P.S. Act, 1985.
The present case is covered by the Rules of
Drugs and Cosmetics Act, 1940. Learned
counsel for the petitioners further submitted
that the provisions of Drugs and Cosmetics
Act, 1940 provides punishment for the
defined offences and only complaint can be
filed against the wrong doer under the
Drugs and Cosmetics Act, 1940 by the
authorities authorized under the Drugs and
Cosmetics Act, 1940, not by the authorities
under the provisions of N.D.P.S. Act, 1985.
The alleged cough syrup have been
purchased by the petitioner firm through
proper receipts. The alleged cough syrup is
a schedule 'H' drug which includes
"Codeine" as one of the ingredients which
is required for the therapeutic purposes.
The "Codeine" contained in the recovered
syrup is within the prescribed limit and
percentage
and
the
same
has
been
purchased by the firm authorized legally
for sale and supply of the medicines by the
petitioner. The petitioner has already
submitted his reply to the notice issued
under Section 67 of the N.D.P.S. Act,1985
through registered post. The provisions of
N.D.P.S. Act,1985 itself speaks that the
N.D.P.S. Act,1985 would not be applicable
if the drug in question has been stored for
sale and purchase for medical and scientific
purposes, and according to the terms and
conditions of the licence granted under the
Drugs and Cosmetics Act, 1940. In the
present case, petitioners are running the
medical shop business under the licence
granted by the authority authorized under
the Drugs and Cosmetics Act, 1940 for
medical purposes, therefore, the provisions
of N.D.P.S. Act,1985 would not be
applicable at all.

15. Per contra, the learned counsel
for the Narcotics Control Bureau has
submitted that on a reliable information the
team of N.C.B. searched and seized the
codeine based cough syrup and prepared its
search and seizure memo dated 05.04.2021,
which is in accordance with law. The
investigation of the offence is continuing. It
has been mentioned in the petition that the
Firm of petitioners had purchased the
codeine based cough syrup by M/s A.R.
Pharma, Varanasi through proper bills but
during the course of investigation, when
N.C.B. team along with Drug Inspector,
Varanasi visited the premises of M/s A.R.
Pharma on 04.06.2021, it has been found
that the said firm did not exist on the
ground. On that premises a Chamber of one
Advocate was found. The said observations
were noted by the Drug Inspector, Varanasi
for their own inquiry too. Since the firm
M/s A.R. Pharma does not exist on the
ground, thus, all codeine phosphate cough
syrup bottles claimed to be supplied by the
firm M/s A.R. Pharma are illegal.

16. Learned counsel for N.C.B.
further submitted that on further
enquiry,
the
concerned
courier
company SPOTON LOGISTICS PVT.
LTD. VARANASI, has supplied the
7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
595
information that the consignment of
medicines
never
reached
at
the
premises on M/s A.R. Pharma. It was
not received by the owner of the M/s
A.R. Pharma. The said consignment
was directly delivered to one Deepak,
at
Shop
No.09,
Second
Floor,
Gyanmandal
Plaza,
SaptaSagar,
Varanasi. This premises belongs to
New Preksha Trading Company. Thus
the firm M/s A.R. Pharma illicitly
diverted the said consignment from
transport
courier
agency
to
New
Preksha
Trading,
without
proper
receiving, stock taking and checking
the physical veracity of the said
consignment. Thus, a physically nonexisting company is getting deliveries
of Codeine based cough syrup bottles
and directly diverting it to new
wholesaler without proper receiving,
stock taking and without checking
physical veracity of consignment. It is
clear illegal act of diversion of
codeine
containing
cough
syrup
bottles done by M/s A.R. Pharma and
New Preksha Trading Company. The
receipt and further sale of all codeine
phosphate consignments of M/s A.R.
Pharma are under investigation. In his
statement under Section 67 of NDPS
Act, 1985 the proprietor of M/s A.R.
Pharma failed to provide all sale,
purchase documents of codeine based
cough syrup which is supplied to New
Preksha
Trading
Company
and
Preksha Ayurvedics. He also admitted
that he has illegally diverted the
consignment of codeine based cough
syrup
directly
to
his
customers
without checking the veracity of
consignment.
The
codeine
based
cough syrups were sold for other
purposes
than
the
therapeutic
purposes.

17. Learned counsel for the
Narcotics Control Bureau has further
submitted
that
during
course
of
investigation the team of Narcotics
Control
Bureau
along
with
Drug
Inspector, Varanasi also visited to the
given address of M/s S.K. Drug
Agency on 04.06.2021. The said firm
also did not exist on the ground. On
that
premises,
one
cosmetic/bridal
make up shop is being run. Since the
said firm does not physically exist on
ground, thus, all codeine phosphate
cough syrup bottles claimed to be
supplied by it to New Preksha Trading
Company and Prechcha Ayurvedic are
illegal.

18.

Learned
counsel
further
contended that no licence has been
issued in the name of the present
petitioners. The licence issued by the
competent
authority
is
for
the
therapeutic and medical use only and
not for the use of intoxication or for
getting a stimulant effect. Possession,
sale and purchase of codeine based
cough syrup for non therapeutic and
non medical usage is illegal and hence
provisions of N.D.P.S. Act,1985 shall
be attracted. The petitioner Hemant
Kumar Saini till now has not appeared
before the Investigating Officer and
has not shown or submitted any
document to Investigating Officer in
support of his claim and petitioner
Yogita Nand Yadav is avoiding to
appear after once appearing before
enquiry officer and after assurance to
appear
again,
despite
repeated
596 INDIAN LAW REPORTS ALLAHABAD SERIES
summons and is not co-operating with
the
on
going
investigation.
The
investigation of the case is going on
and the Investigating Officer is still in
the process of collecting the criminal
case
history,
if
any,
against
the
petitioners.

19. Learned counsel has further argued
that the Narcotics Control Bureau has
bonafide jurisdiction of search, seizure,
inquiry and investigation under the provisions
of N.D.P.S. Act, 1985 which is a special Act
enacted by the Parliament with the objective
to control and regulate the illicit trafficking
relating to Narcotic Drug and Psychotropic
Substance. The Drug and Cosmetics Act,
1940 deals with drugs which are intended to
be used for therapeutic or medical usage, on
the other hand, the N.D.P.S. Act, 1985 intend
to curb and penalize the usage of drugs which
are used for intoxication or for getting a
stimulant effect. Any diversion and illegal
sale, purchase, possession of drugs intended
for therapeutic or medical usage must attract
provisions of N.D.P.S. Act, 1985. Under the
provisions of Section 67 of N.D.P.S. Act,1985
the
authorized
officers
may
call
for
information from any person to satisfy
himself
whether
there
has
been
any
contravention of the provision of the N.D.P.S.
Act, 1985. The investigation of the case is
being conducted with fair and proper manner
and and with clean hands. The provisions of
Section 80 of N.D.P.S. Act, 1985 and Section
2 of Drugs and Cosmetics Act give power to
proceed and investigate the case under the
N.D.P.S. Act,1985 also. Thus, the provisions
of N.D.P.S. Act,1985 can be applied along
with the provisions of Drugs and Cosmetics
Act, 1940.

20. Learned counsel has further
submitted that N.C.B. Case No.16 of 2021,
under Section 8/21/29 of N.D.P.S. Act,1985
has not been registered in Police Station
Kotwali, District Varanasi, as mentioned by
the petitioners. The police team had joined
N.C.B. raiding team during course of
search for assistance only. The N.C.B. has
jurisdiction and power under the provisions
of N.D.P.S. Act, 1985 to make search and
seizure, investigate and during enquiry may
call for information from any person to
satisfy whether there has been any
contravention of provisions of N.D.P.S.
Act, 1985. The petitioners are not cooperating in the investigation. Summons
under Section 67 of N.D.P.S. Act, 1985 had
been issued on 07.04.2021, 20.04.2021,
13.05.2021 and on 02.06.2021 to provide
opportunity to the petitioners to show their
claim over seized items. On each occasion,
petitioners
deliberately
avoided
investigation.
The
petitioners
should
disclose all the sale and purchase record
which has yet not been disclosed by them
as they are not co-operating in the
investigation and enquiry. The petitioners
have not come with clean hands before the
Court.

21. Learned counsel has also
submitted that the GST return filing
statement was checked and it was found
that the said Firm had filed last GST return
on 23.04.2021 but the petitioners and
partner have not shown full record of
corresponding sale and purchase shown by
the
Firm,
particularly,
regarding
the
recovered 1,15,244 bottles of codeine based
cough syrup seized under seizure memo
dated 05.04.2021. Learned counsel has
further mentioned that one of the partner of
Firm Preksha Ayurvedic Mr. Yogitanand
Yadav [the petitioner in Writ Petition
No.11396 (MB) of 2021] appeared before
the N.C.B. team under the compliance of
Section 67 of NDPS Act, 1985 on
12.04.2021 but N.C.B. officials did not
7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
597
arrest him, although further he did not
appear before the Investigating Officer.
Hence, it is wrong to say that petitioners
have every apprehension that when they
will appear before the Investigating Officer,
in compliance of notice issued against him
under Section 67 of N.D.P.S. Act,1985 they
will be arrested.

22. Learned counsel has further
submitted that the judgment passed by this
Court in Ashok Kumar Vs. Union of India,
Crl. Misc. Case No.2976 of 2014 is under
challenge in Hon'ble Apex Court in Criminal
Appeal No. 000115/2018 (Union of India
Vs. Ashok Kumar) which is pending before
the Hon'ble Supreme Court and the judgment
is awaited.

23. Learned counsel has further
submitted that the writ petitions filed by the
petitioners are misconceived and against the
provisions of law. Mere notice under Section
67 of N.D.P.S. Act, 1985, cannot be
challenged under writ jurisdiction of the
Court, as this is the process of investigation,
hence the present writ petitions are liable to
be dismissed.

24. We have heard arguments advanced
by learned counsel for the petitioners, Shri
A.P. Mishra, and Shri Akhilesh Awasthi,
learned counsel for Narcotics Control Bureau
and perused the material brought on record.

25. Learned counsel for the petitioners
has argued that in the present case the
provisions of N.D.P.S. Act, 1985 are not
attracted, rather this may be a case falling
under the Drugs and Cosmetics Act, 1940.

26. So far as the applicability of the
Drugs
and
Cosmetics Act,
1940
is
concerned, this Act has been enacted by
the Parliament to regulate the import,
manufacture, distribution and sales of drugs
and cosmetic, whereas the N.D.P.S. Act,
1985 has been enacted with a view to make
stringent provision for the control and
regulation of operations relating to Narcotic
drugs and psychotropic substances. In this
context, it has been held by Hon'ble
Supreme Court in the case of State of
Punjab Vs. Rakesh Kumar, (2019) 2 SCC
466 in paragraph 7 that : -

"7. At the outset it is essential to
note the objectives of the two legislations
before us i.e. the Drugs and Cosmetics Act,
1940 and the NDPS Act. The Drugs and
Cosmetics Act, 1940 was enacted to
specifically prevent substandard drugs and to
maintain
high
standards
of
medical
treatment. (Chimanlal Jagjivan Das Sheth v.
State of Maharashtra, AIR 1963 SC 665) :
(1963) 1 Cri LJ 621). The Drugs and
Cosmetics Act,1940 was mainly intended to
curtail the menace of adulteration of drugs
and
also
of
production,
manufacture,
distribution and sale of spurious and
substandard drugs. On the other hand, the
NDPS Act is a special law enacted by the
Parliament with an object to control and
regulate the operations relating to narcotic
drugs and psychotropic substances. After
analyzing the objectives of both the Acts, we
can safely conclude that while the Drugs and
Cosmetics Act deals with drugs which are
intended to be used for therapeutic or
medicinal usage, on the other hand, the
NDPS Act intends to curb and penalize the
usage of drugs which are used for
intoxication or for getting a stimulant effect."

27. Subject matter of the case is the
recovery of medicines in the form of syrup,
598 INDIAN LAW REPORTS ALLAHABAD SERIES
namely, Onerex Cs, Welcyre, Plencyre and
CC KUFFs, which contain codeine as one
of its ingredients. The Codeine is derived
from
opium
and
comes
under
the
provisions of N.D.P.S. Act, 1985.

28. For its operations, Section 2 of
N.D.P.S. Act, 1985 essentially provides for
three kinds of offending substance, i.e.
"Manufactured Drug", "Narcotic Drug" and
"Psychotropic Substance".

"2(xi)
"Manufactured
Drug"
means:-

"(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, but does not include
any narcotic substance or preparation which
the Central Government may, having regard
to the available information as to a decision,
if any, under any International Convention,
by notification in the Official Gazette, declare
not to be a manufactured drug;"

2(xiv) "Narcotic drug means coca
leaf, cannabis (hemp), opium, poppy straw
and includes all manufactured goods.

2(xxiii) "Psychotropic Substance"
means :-

"Psychotropic substance 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."

29. Reference also needs to be made
to Section 2(xvi)(c), which defines 'Opium
Derivative', which reads as under :-

2 (xvi) : "Opium derivative"
means-

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

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

(c)
"Phenanthrene
alkaloids,
namely, morphine, codeine, thebaine

and their salts"

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

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

30. From the above wording of
definitions, it is apparent that medicine
syrup which contains codeine as its
ingredient, that codeine is an opium
derivative and opium comes under the
definition of Narcotic Drug. In this regard
Section 8 of N.D.P.S. Act, 1985 make
provision and certain restrictions, which
reads as under :-

"8.
Prohibition
of
certain
operations.-No person shall-

(a) cultivate any coca plant or
gather any portion of coca plant; or

(b) cultivate the opium poppy or
any cannabis plant; or

(c)
produce,
manufacture,
possess,
sell,
purchase,
transport,
warehouse, use, consume, import interState, export inter-State, import into India,
export from India or tranship any narcotic
drug or psychotropic substance, except for
medical or scientific purposes and in the
manner and to the extent provided by the
provisions of this Act or the rules or
orders made thereunder and in a case
where any such provision, imposes any
requirement by way of licence, permit or
authorisation also in accordance with the
terms and conditions of such licence,
permit or authorisation:
7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
599

Provided that, and subject to the
other provisions of this Act and the rules
made thereunder, the prohibition against
the cultivation of the cannabis plant for the
production of ganja or the production,
possession, use, consumption, purchase,
sale, transport, warehousing, import interState and export inter-State of ganja for
any purpose other than medical and
scientific purpose shall take effect only
from
the
date
which
the
Central
Government may, by notification in the
Official Gazette, specify in this behalf:

Provided further that nothing in
this section shall apply to the export of
poppy straw for decorative purposes."

31. Learned counsel for the Narcotic
Control Bureau has vehemently argued that
from the shop/godown of petitioners
manufactured drug has been seized in bulk
which was kept there without any valid
authorization, which amounts to clear
violation of Section 8 of N.D.P.S. Act,
1985. Section 8 of NDPS Act, 1985, clearly
prohibits possession of narcotic substance,
except for medical or scientific purposes
and that too, in accordance with relevant
provisions of law. In support of his
contention learned counsel for the Narcotic
Control Bureau has placed reliance in the
dictum of Hon'ble Supreme Court in the
case of Union of India Vs. Sanjeev V.
Despande,
MANU/SC/0688/2014.
The
Hon'ble Supreme Court has held as under :-

"25. In other words, DEALING
IN
narcotic
drugs
and
psychotropic
substances is permissible only when such
DEALING is for medical purposes or
scientific purposes. Further, the mere fact
that the DEALING IN narcotic drugs and
psychotropic substances is for a medical or
scientific purpose does not by itself lift
the embargo created under section 8(c).
Such a dealing must be in the manner and
extent provided by the provisions of the Act,
Rules or Orders made thereunder. Sections
9[9] and 10[10] enable the Central and the
State Governments respectively to make
rules permitting and regulating various
aspects (contemplated under Section 8(c),
of DEALING IN narcotic drugs and
psychotropic substances."

32. In case in hand, the proceedings
against the petitioners are at the stage of
enquiry/investigation.
It
has
to
be
ascertained by the Investigating Officer that
whether the Rules of 1945 (Drugs and
Cosmetics Rules, 1945) has been followed
by the petitioners/firm or not. It is also in
embryo that the recovered medicines which
were kept by petitioners' firm in his
shop/godown, are for the purpose of
medicines and therapeutic use or not and
whether they followed the provisions of
Drugs and Cosmetics Act, 1940 and Rules
of 1945 and in the transaction of drugs the
proper accounts and records are being
maintained or not, as it is mandatory by the
provisions Section 18-B of Drugs and
Cosmetics Act, 1940, which reads as under
:-

"[18-B. Maintenance of records
and furnishing of information. Every
person holding a license under clause (c) of
section 18 shall keep and maintain such
records, registers and other documents as
may be prescribed and shall furnish to any
officer or authority exercising any power or
discharging any function under this Act
such information as is required by such
officer or authority for carrying out the
purposes of this Act.]"
600 INDIAN LAW REPORTS ALLAHABAD SERIES

33. The provisions of Rule 65 of
Rules of 1945 makes provisions regarding
conditions of licence. Learned counsel for
the N.C.B. has argued that during the
search no register, record/entries were
found which may validate the stock.

34.

Therefore,
whether
the
petitioners-firm is holding a valid licence
or not and whether conditions for licence
are being followed by the petitioners-firm
or not; whether the necessary records are
being maintained by the petitioners-firm or
not, all these points are the subject matter
of
enquiry/investigation,
which
is
continuing. Therefore, any conclusion, in
this regard can be drawn only after
finalization of inquiry/investigation.

35. In the present facts of the case
according to provision of Section 80 of
N.D.P.S. Act, 1985 and Section 2 of Drugs
and Cosmetics Act, 1940, the proceedings
can be initiated and inquiry can be made
under the provisions of N.D.P.S. Act, 1985
as well as under the Drugs and Cosmetics
Act, 1940. Section 80 of N.D.P.S. Act,
1985, reads as under :-

"80. Application of the Drugs
and Cosmetics Act, 1940 not barred.-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 (23 of 1940) or the rules made
thereunder."

Section
2
of
Drugs
and
Cosmetics Act, 1940, makes following
provision :-

"2.Application of other laws
not barred.- The provisions of this Act
shall be in addition to and not in derogation
of, the Dangerous Drugs Act, 1930 (2 of
1930), and any other law for the time being
in force.

36. The above provisions clearly
indicates that provisions of Drugs and
Cosmetics Act, 1940 and Rules of 1945
have co-relation with the provisions of
N.D.P.S. Act, 1985 and Rules. They cannot
stand in isolation. Therefore, at this stage of
proceedings, it cannot be said that the case
of petitioners is covered by the provisions
of Drugs and Cosmetics Act, 1940 only and
action taken by prosecution (N.C.B.) under
the provisions of N.D.P.S. Act, 1985 is
illegal and without jurisdiction.

37.

Learned
counsel
for
the
petitioners has argued also on the point that
the recovered syrups fall under Schedule
''H' and H1 of the Drugs and Cosmetics
Rules, 1945, hence in the case the
provisions of the Drugs and Cosmetics Act,
1940 are applicable.

38. In this regard, whether the
provisions of the Drugs and Cosmetics Act,
1940 as well as provisions of Rule 97 (c),
(d), (e) and (f) of 1945 Rules, are being
followed or not, this is also the matter of
enquiry/investigation. Rule 97 (c), (d), (e)
and (f) of Rules of 1945 reads as under :-

"97. Labelling of medicines.- (1)
The container of a medicine for internal
use shall-

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

(b) if it contains a drug substance
specified in Schedule H, be labeled with the
symbol Rx and conspicuously displayed on
the left top corner of the label and bealso
labeled with the following words in legible
black coloured font size in completely red
rectangular box:

 SCHEDULE H PRESCRIPTION
7 All. Hemant Kumar Saini Vs. U.O.I. & Ors.
601
DRUG-CAUTION

Not to be sold by retail without the
prescription of a Registered Medical
Practitioner.

(c) if it contains a substance
specified in Schedule H and comes within
the purview of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of
1985) be labeled with the symbol NRx,
which shall be in red and conspicuously
displayed on the left top corner of the label,
and be also labeled with the following
words in legible black coloured font size in
completely red rectangular box :

 SCHEDULE H PRESCRIPTION
DRUG-WARNING
To be sold by retail on the prescription of
a Registered Medical Practitioner only.

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

(e) if it contains a drug substance
specified in Schedule H1, be labeled with
symbol Rx, which shall be in red
conspicuously displayed on the left top
corner of the label and shall also be
labeled with the following words in legible
black coloured font size in completely red
rectangular box :

 SCHEDULE H1 PRESCRIPTION
DRUG - CAUTION
-It is dangerous to take this preparation
except in accordance with the medical
advice.
 Not to be sold by retail without the
prescription of a Registered Medical
Practitioner

-