# Tribhuwan Singh & Anr v. Union Of India

- **Citation:** (2016) 5 ILRA 1394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-27
- **Bench:** Ashwani Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tribhuwan-singh-anr-v-union-of-india-43759
- **Pages:** 10

## Text

1394 INDIAN LAW REPORTS ALLAHABAD SERIES
irrespective of the fact that from where such letter has been received, as, the Rules which have been
made under the proviso to Article 309 of the Constitution of India are binding upon the
government. In fact the State Government Secretariat ought to have informed the higher echelons
about the prohibitions contained in Rule 27-A or it could have rejected the same in view of the said
Rule.

10. The petitioner does not have any indefeasible right to remain in the borrowing
department at his will and no such writ for extension of his deputation for five years can be issued.

11. Let this order be placed before the Chief Secretary, U.P., as also the Principal Secretary
(Home), U.P., to ensure that in future U.P. Government Servant Conduct Rules, 1956 are complied
to the hilt.

12. For the reasons aforesaid this writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR SINGH, J.

U/S 482/378/407 No.- 922 Of 2007
&
Connected With Other Cases

Tribhuwan Singh & Anr. ...Applicants
Versus
Union Of India ...Opposite Party

Counsel for Applicants:
A.P. Misra

Counsel for Opposite Party:
I.B. Singh, Ms. Shikha Sinha

CRIMINAL LAW - NDPS Act - Psychotropic Substance - Schedule 'H' Drugs - NDPS Rules -
Section 482 Cr.P.C. - Quashing of Proceedings

Psychotropic substance - Schedule I, NDPS Rules - Applicability
Buprenorphine Hydrochloride (Bunogesic Injection), though a psychotropic substance within the meaning of
the NDPS Act, not being included in Schedule I of the NDPS Rules, is not governed by the prohibitions
contained in Rules 64 to 67 of the NDPS Rules.

Drugs and Cosmetics Act - Prevailing field
5 All. Tribhuwan Singh & Anr. Vs Union Of India

1395
Manufacture, possession, sale and transport of Buprenorphine Hydrochloride, being a Schedule 'H' drug, are
regulated by the Drugs and Cosmetics Act, 1940 and Rules, 1945, and not by the NDPS Act or NDPS Rules.

Rule 67, NDPS Rules - Inapplicability
Rule 67 relating to transport of psychotropic substances applies only to substances specified in Schedule I of
the NDPS Rules; alleged absence of Form-6 consignment note does not constitute an offence where the drug
is not covered by Schedule I.

Section 8/22, NDPS Act - No offence made out
Possession, sale or transport of a Schedule 'H' drug under a valid licence, not prohibited by NDPS Rules, does
not amount to contravention of Section 8, and consequently punishment under Section 22 of the NDPS Act is
not attracted.

Inherent jurisdiction - Abuse of process
Continuation of criminal proceedings under Section 8/22 NDPS Act in such circumstances amounts to abuse of
process of court and is liable to be quashed under Section 482 Cr.P.C.

Held:
Complaints and consequential proceedings under Section 8/22 NDPS Act read with Rule 67 NDPS Rules
quashed.

Petitions allowed.

Case listed
Raj Narain Vs. Smt. Indira Nehru Gandhi, reported in AIR 1972 SC 1302
Union of India Vs. Gopal Chandra Misra and others, reported in AIR 1978 SC 694
Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, AIR 1986 SC 1571
Balram Gupta Vs. Union of India and another, reported in AIR 1987 SC 2354
Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, reported in 1997 (4) SCC 280
Shambhu Murari Sinha Vs. Project and Development India and another 2000 (86) FLR 206
In Managing Director, Orissa State Handloom Weavers' Cooperative Society Ltd. Vs.
Satyanarayan Pattnaik and another, 2014 (3) SCC 218

 (Delivered by Hon'ble Ashwani Kumar Singh, J.)

1. Since allegations against all the petitioners and legal propositions, which are involved in
the above five petitions are identical, they have been heard together and disposed of by this
common judgment and order.

2. By means of these petitions filed under Section 482 Cr.P.C., the petitioners have prayed
for quashing the respective complaints and consequent proceedings before the court below.

3. Heard learned counsel for the parties and perused the relevant papers filed in support of
these petitions.

4. Briefly stated, the complainant is an Intelligence Officer of N.C.B. Zonal unit Varanasi.
Secret information was received vide Fax No. NCB/AZU/INV-1/2004 dated 28.10.2004 of NCB,
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
Ahmedabad zonal Unit that M/s Rushan Healthcare(P) Ltd, Mumbai had sold vials of
Bunogesic(Buprenorphine) injection to M/s C.N. Trading, Lucknow and they requested to
investigate the further distribution of the said injection at these locations as it was suspected that
these injections were diverted for use as psychotropic substance. After obtaining instructions from
the Superior Officer, the Intelligence Officer of N.C.B., Varanasi started investigation into the
matter and called for details from M/s C.N. Trading, Lucknow regarding sale of vials of
Bunogesic(Buprenorphine) injections reported to have been received from Rushan Healthcare(P)
Ltd., Mumbai.

5. After completion of the investigation, the complainant filed different complaints against
different accused persons as follows :-

1. In Crl. Misc. Case No. 922(482Cr.P.C.) of 2007, complaint was filed against
Tribhuwan Singh son of Madho Singh and M/s Life Care. The allegation in the complaint against
both the above named person is that :-

i. That on inquiry, it has been found that purchaser(above-named parties) sold drug
in question to non-existent parties and the drug in question could not be traced to have been used
for medical purposes.

ii. That from the facts and circumstances, statements, documents and evidence which
have come forward in the investigation it is clear that the accused sold, distributed and transported
the above-mentioned Bunogesic injections in violation of Rule 67 of N.D.P.S. Rules and drug in
question could not be traced to have been used for medical purposes and thus contravened the
provisions of Section 8 of N.D.P.S. Act and committed offence punishable under Section 22 of
N.D.P.S. Act 1985.

iii. That from the facts and circumstances and evidence it is clear that the accused
had violated Rule 67 of N.D.P.S. Rules and committed offence punishable under Section 8/22
N.D.P.S. Act

2. In Crl. Misc. Case No. 850(482Cr.P.C.) of 2007, complaint was filed against
petitioners namely Vijai Kumar Agrawal son of Sri Gopi Krishna Agrawal and M/s G.R.
Enterprises. The allegation in the complaint against both the above named is that :-

i. That from the facts and circumstances, statements, documents and evidence which
have come forward in investigation it is clear that the accused supplied 47 thousand ampules of
Bunogesic injection without any consignment note in Form-6 as prescribed in Rule 67 of N.D.P.S.
Rules read with N.D.P.S. Act 1985 for transportation of physchotropic substance. The accused has
distributed the said drug without any consignment note in Form-6 in clear violation of Rule 67 of
N.D.P.S. Rules 1985 and distributed to a non existent party which clearly shows that the drug in
question has been diverted to non-medical use.
5 All. Tribhuwan Singh & Anr. Vs Union Of India

1397

ii. From the facts, circumstances and evidence it is clear that the accused has
violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 N.D.P.S.
Act

3. In Crl. Misc. Case No. 851(482Cr.P.C.) of 2007, complaint was filed against
petitioners namely Vijai Kumar Agrawal son of Sri Gopi Krishna Agrawal and M/s G.R.
Enterprises. The allegation in the complaint against both the above named is that :-

i. That from the facts and circumstances, statements, documents and evidence which
have come forward in investigation it is clear that the accused supplied thirty thousand ampules of
the above-mentioned Bunogesic injection without using any consignment note in Form-6 as
prescribed in Rule 67 of NDPS Rules read with N.D.P.S. Act 1985 for transportation of
psychotropic substance. The accused has distributed the said drug without any consignment note in
Form-6 in clear violation of Rule 67 of NDPS Rules 1985 and distributed to a non existent party
which clearly shows that the drug in question has been diverted to non-medical use.

ii. That from the facts, circumstances and evidence it is clear that the accused has
violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act

4. In Crl. Misc. Case No. 787(482Cr.P.C.) of 2007, complaint was filed against
petitioner namely Vijai Kumar Agrawal son of Sri Gopi Krishna Agrawal. The allegation in the
complaint against the above named is that :-

i. That from the facts and circumstances, statements, documents and evidence which
have come forward in investigation it is clear that the accused supplied four thousand ampules of
the above-mentioned Bunogesic injection without using any consignment note in Form-6 as
prescribed in Rule 67 of NDPS Rules read with NDPS Act 1985 for transportation of psychotropic
substance. The accused has distributed the said drug without any consignment note in Form-6 in
clear violation of Rule 67 of NDPS Rules 1985 and distributed to a non existent party which
clearly shows that the drug in question has been diverted to non-medical use.

ii. That from the facts, circumstances and evidence it is clear that the accused has
violated Rule 67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act.

6. Thus, the allegation in all the complaint cases is that the petitioners have violated Rule
67 of NDPS Rules and committed offence punishable under Section 8/22 NDPS Act.

Rule 67 of NDPS Rules reads as under :-

"67. Transport of psychotropic substance.-(1) Subject to the provisions of Rule
64, no consignment of psychotropic substance shall be transported, imported inter-state or exported
inter-State unless such consignment is accompanied by a consignment note in[Form 6] appended to
these Rules and in the manner as provided hereinafter.
1398 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) The consignment note referred in sub-rule(1) shall be prepared in triplicate, and
the original and duplicate copies of the said note shall be sent along with the consignment of
psychotropic substances to the consignee who shall return the duplicate copy of the note to the
consignor for his use after endorsing on the original and duplicate copies the particulars of the
receipt of the quantity consigned.

(3) The consignor shall make necessary entries on the triplicate copy of the said note
with reference to the receipt quantity of the psychotropic substances indicated on that duplicate
copy of the note.

(4) The consignor and consignee shall keep such consignment note for a period of
two years and the said note may be inspected at any time by an officer authorized in this behalf by
the Central Government.

[Provided that consignment note in Form 6 shall not apply in cases where the sale of
the psychotropics substance is accompanied by a sale bill or invoice or cash memo or any other
document duly signed by the consignor or his authorized signatory, which shall include the
following information about the consignment:-

(a) name, address and licence number of the consignor and the consignee;

(b) description, batch number and quantity;

(c) mode and particulars of transport;

 Provided further that such document shall be preserved by consignor and consignee
for a period of two years for inspection by the officers referred to in sub-rule(4) above.

Explanation.-Where the consignee is a research institution, registered medical
practitioner, hospital or dispensary, the requirement of incorporating licence number of consignee
shall not be applicable.

Section 8 of NDPS Act reads as under:-

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

(a)xxxxxxxxxxxxxxxxxxxxxxxx

(b)xxxxxxxxxxxxxxxxxxxxxxxx

(c)produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, 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
5 All. Tribhuwan Singh & Anr. Vs Union Of India

1399
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 authorization also in accordance with the terms and conditions of such licence, permit or
authorization:

Section 22 of NDPS Act deals with punishment for contravention in relation to
psychotropic substances.

7. This Court, thus, has to examine whether Bunogesic injection, which contains
Buprenorphine Hydrochloride is a 'psychotropic substance' within the meaning of Narcotics and
Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as NDPS Rules)?

8. Learned counsel for the petitioners contends that Buprenorphine Hydrochloride I.P.
Injections which are the subject matter of the present complaint cases are drugs specified under the
Drugs and Cosmetic Act, 1940 and conform to standards indicated in the Indian Pharmacopoeia.
According to the learned counsel for the petitioners, since the Buprenorphine Hydrochloride
injections involved in the present applications conformed to the specifications mentioned in the
Indian Pharmacopoeia and were Schedule 'H' Drugs under the Drugs and Cosmetics Act, 1940 and
the Drugs and Cosmetics Rules, 1945, the same could not be regarded as 'psychotropic substances'
at all under the NDPS Act.

9. It is necessary to note what 'psychotropic substance' as defined in Section 2(xxiii) of the
NDPS Act, 1985 means:-"psychotropic substance" means any substance, natural or synthetic or any
natural material or any salt or preparation of such substance or materials included in the list of
psychotropic substances specified in the Schedule".

10. The above definition makes it clear that psychotropic substance could be any substance,
natural or synthetic, or any natural material or "any salt or preparation" of such substance or
materials included in the list of psychotropic substances specified in the Schedule.

11. The provisions with regard to Buprenorphine Hydrochloride in the Drugs and
Cosmetics Act, 1940(hereinafter referred to as the "D and C Act"), the Drugs and Cosmetics Rules,
1945(hereinafter referred to as the D and C Rules"), the NDPS Act and the NDPS Rules are to be
examined.

12. Rule 65 of the D and C Rules prescribes the general conditions for licences in Forms
20, 20A, 20B, 20F, 20G, 21 and 21B. For example, sub-rule(3)(1) of Rule 65 stipulates that the
supply of any drug, other than those specified in Schedule X, on the prescription of a Registered
Medical Practitioner shall be recorded at the time of supply in a prescription register specially
maintained for the purpose and the serial number of entry in the register shall be entered on the
prescription. Several particulars are required to be entered in the Register such as, serial number of
the entry, the date of supply, the name and address of the prescriber etc. In the case of a drug
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
specified in Schedule 'H", it is also necessary to record theame of the manufacturer of the drug, its
batch number and the date of expiry of potency, if any.

13. If Buprenorphine Hydrochloride is 'psychotropic substance' within the meaning of
NDPS Act, would that in itself make the possession, sale or transportation of Buprenorphine
Hydrochloride injections an offence under the NDPS Act, punishable under Section 22 thereof ?
The answer is in the negative.

14. In the context of Section 21 of the NDPS Act which is an analogous provision in
respect of 'narcotic drugs', the Supreme Court has held in the case of Sajan Abraham versus State
of Kerala reported in (2004)4 SCC 441 as under:-

"7. It is thus apparent that what is made punishable under Section 21 is possession,
sale, purchase, etc. of the drugs and preparations mentioned therein in contravention of any
provisions of the Act or any rule or order made or condition of licence granted thereunder.
Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the
limits specified under the rule and subject to such conditions as the rule may prescribe, such a
person cannot be held guilty of the offences under Section 21 of the Act if it is shown that his
possession is not in contravention of such rule."

15. This would equally apply to the offences punishable under Section 22 of the NDPS Act
in relation to psychotropic substances. This is clear as, in the case of Ouseph versus State of
Kerala reported in (2004)4 SCC 446, the Supreme Court has observed as under:-

" 5........... if it is a psychotropic substance, possession of it would become an offence
only if it was in contravention of the Rules prescribed. ........."

 In Hussain versus State of Kerala reported in (2000)8 SCC 139 , the Supreme
court has held in para 8 as under :-

" 8. if it was "psychotropic substance" possession of the same would amount to an
offence only if it was in contravention of Section 8 of N.D.P.S. Act. That Section shows that no
person shall possess any 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".

16. We must remember that Buprenorphine Hydrochloride I.P. is a Schedule Drug within
the meaning of the D and C Act and Rules. Its manufacture, sale etc. is regulated by the D and C
Act and D and C Rules.

17. The NDPS Rules have been formulated by the Central Government in exercise of the
power provided under the NDPS Act. Chapter VII of the NDPS Rules deals with 'psychotropic
5 All. Tribhuwan Singh & Anr. Vs Union Of India

1401
substances'. Rules 64 to 67 fall under this Chapter VII. Rule 64 Prescribes the general prohibition.
It provides that -

"No person shall manufacutre, possess, transport, import inter-state, export interstate, sell purchase, consume or use any of the psychotropic substances specified in Schedule I".

18. It is to be noted that this "Schedule I" is different to the Schedule to the NDPS Act.
This Schedule I is appended to the NDPS Rules and is in two parts :- (1) Narcotic Drugs and (II)
Psychotropic Substances. This Court is concerned with psychotropic substances. There is a list of
specific psychotropic substances. It is significant to note that neither Buprenorphine Hydrochloride
nor Bunogesic find mention in this list. This clearly means that Buprenorphine Hydrochloride is not
included in Schedule I to the NDPS Rules and therefore the general prohibition contained in Rule
64 of the NDPS Rules does not apply to it. Consequently, Rules 65 to 67, which also have
reference to psychotropic substances specified in the said Schedule I, would also not be applicable
in respect of Buprenorphine Hydrochloride.

19. The prohibition contained in Rule 64 of the NDPS Rules applies only to those
psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words, the
prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances,
which, although they are listed in the Schedule to the NDPS Act, are not part of the listed
psychotropic substances in Schedule I to the NDPS Rules.

20. Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance
other than those specified in Schedule I shall be in accordance with the conditions of license
granted under the D and C Rules and D and C Act. In other words, insofar as the psychotropic
substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the
NDPS Act are concerned, their manufacture shall be governed by the D and C Act and Rules and
not by the NDPS Act or NDPS Rules.

21. Rule 66 relates to possession etc., of psychotropic substances.

22. Sub-Rule(1) thereof provides that no person shall possess "any psychotropic substance"
for any of the purposes covered by the D and C Rules, unless he is lawfully authorized to possess
such substance for any of the said purpose under the NDPS Rules. The expression "any
psychotropic substance" obviously has reference to those listed in Schedule I to the NDPS Rules.
Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance
does not find mention in Schedule I to the NDPS Rules, the prohibition qua possession contained in
Rule 64 does not apply. That being the case, in respect of such a psychotropic substance, Rule 66
would also not apply as it has reference to only those psychotropic substances which are included
in Schedule I to the NDPS Rules. Rule 67 of the NDPS rules relates to transport of psychotropic
substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the
transport, import inter-state or export inter-state of those psychotropic substances which are
included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
psychotropic substances which are not to be found in Schedule I to the NDPS Rule. 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 rigours of the D and
C Act and Rules.

23. It is submitted by learned counsel for the petitioners that the petitioners were bona fide
licene holders under the Drugs and Cosmetics Act and Rules, as such, they were authorized to sell and
deal in Schedule "H" medicines which includes Buprenorphine Hydrochloride IP injections. It is
contended that there is no iota of evidence to support the apprehension of the complainant that the drugs
were being sold by petitioners to any individual for non medical use. Mere allegations and apprehension
would not prove the guilt of the petitioners. It is further submitted that allegation that the vials of
Bunogesic injections were sold to non existing parties is also incorrect. It may be made clear that the
drug in question was sold to existing parties who had licence except for in one case the other parties had
shown licence but on further enquiry it was found to be forged. Learned counsel submits that under the
valid licence there is no rule that the petitioner had to first ascertain whether the licence is genuine or
not. No offence is made out if the the other party is producing fake documents.

24. The allegation against the petitioners is that they contravened Rules 67 of the NDPS Rules
and thereby contravened Section 8 of NDPS Act and as a result thereof, became liable for punishment
under Section 22 of the NDPS Act.

25. As discussed above, Buprenorphine Hydrocloride is a Schedule H drug under the D and C
Act and Rules. It is not included in Schedule I to the NDPS Rules. That being the case, its manufacture,
possession or sale is not prohibited. Consequently, the offence under Section 8 of the NDPS Act is not
made out. Therefore, punishment under Section 8/22 NDPS Act is also not attracted.

26. Ms. Shikha Sinha, learned counsel for N.C.B. has vehemently submitted that the
Buprenorphine Hydrochloride is a psychotropic substance within the meaning of NDPS Act. There is a
little difference if it is happened to be a Schedule 'H' drug.

27. Learned counsel for N.C.B. has placed reliance on the judgment of Apex Court in the case
of Mohd. Sahbuddin and another versus State of Assam reported in (2012) 13 Supreme Court Cases
491. The facts of the case are distinguishable in so much as Mohd. Sahabuddin and others were found in
possession of drugs, including phensedyl, which were concealed with household articles in a truck. The
driver of the vehicle did not have any valid document in support of carrying the said contraband
substances.

28. Learned counsel for N.C.B. has also placed reliance on the judgment of Apex Court in the
case of Union of India and another versus Sanjeev V. Despande. The facts of the case are also
distinguishable from the facts of the present case.
29. In the present case, the legal proposition has been dealt with the drug in question, which is
covered in the ambit of D and C Act and Rules and for the same the petitioner had obtained valid
5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1403
licence from the authorities. Any violation of Rules of licence would result in offence committed under
D and C Act.

30. Considering the above noted discussions, relevant provision of NDPS Act and Rules, D and
C Act and Rules and judgments of the Hon'ble Supreme Court, this Court is of the view that in the case
in hand if at all an offence has been committed it would be under D and C Act and no offence under
Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules is made out.

31. Accordingly, the petitions are allowed.

32. The proceedings in crime case no. 288 of 2006, Union of India versus Tribhuwan Singh and
another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of NDPS Act
read with Rule 67 of NDPS Rules and order dated 9.1.2007 passed by the court below in regard to the
petitioners only, are hereby quashed.

33. The proceedings in crime case no. 291 of 2006, Union of India versus Vijai Kumar
Agrawal and another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of
NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in
regard to the petitioners only, are hereby quashed.

34. The proceedings in crime case no. 290 of 2006, Union of India versus Vijai Kumar
Agrawal and another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of
NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in
regard to the petitioners only, are hereby quashed.

35. The proceedings in crime case no. 292 of 2006, Union of India versus V.K. Agrawal and
another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of NDPS Act
read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in regard to the
petitioners only, are hereby quashed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 8679 Of 1999

Dinesh Prasad Chaurasia
 ...Petitioner
Versus
Managing Director & Ors. ...Respondents