# Vibhor Rana v. Union of India & Anr

- **Citation:** (2022) 1 ILRA 15
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-24
- **Case number:** Criminal Misc. Writ Petition No. 8403 of 2021
- **Bench:** Mahesh Chandra Tripathi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vibhor-rana-v-union-of-india-anr-47647
- **Pages:** 20

## Headnote

Sri Pranay Krishna, Ashish Pandey, Special
Public Prosecutor (NCB), Sri Arunendra
Kumar Singh, A.G.A.

Narcotic
Drugs
&
Psychotropic
Substances,
1985
-
Section
42
-
Petitioners have been made distributor of
drugs manufactured by Abbott Health
Care Pvt. Ltd. Including Phensedyl New
Cough Linctus-NCB seized 61000 bottles
of Phensedyl New Cough Linctus Syrupout of 5 batches seized-three batches
distributed by Petitioners-absolutely no
material on record to indicate that NCB
had any reason to believe that seized
consignment was of narcotic drug-and
that
he
has
power-pre-requisite
for
exercising power u/s 42 of NDPS Act-
Phensedyl
New
Cough
Linctus-not
a
narcotic drug-and any dealing in it-would
not be subject to the provision of NDPS
Act.
16 INDIAN LAW REPORTS ALLAHABAD SERIES
W.P. allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,962 of 66,476. This is a partial read: ask again with offset=39962 for what follows._

1 All. Vibhor Rana Vs. Union of India & Anr.
15

19 mijksDr fo}ku vf/koDrkx.k ds rdZ ,oa
lq>ko lquus ds ckn U;k;ky; dk ;g er gS fd
cSad [kkrk/kkjdksa dk iSlk lqjf{kr jguk pkfg,A
dsoy blfy, ugha fd xzkgd iSlk cSad esa tek
djrk gS fd vko';drk iM+us ij og mls fudky
ldrk gS] og bl fy, Hkh] xzkgdksa }kjk cSad esa
tek iSlk ,d uEcj dk gksrk gS vkSj ftlls ns'k
dh vkfFkZd fLFkfr Hkh lq/kjrh gSA ogha nwljh vksj
ns'k esa ,sls yksx Hkh gS tks djksM+ks :i;s cSad esa
tek u djds ?kjks esa rg[kkuks esa fNik dj j[krs
gS mlls u rks cSad dks dksb ykHk gksrk gS oju~ os
ns'k dh vkfFkZd fLFkfr dks Hkh [kks[kyk djrs gSaA
,slh fLFkfr esas cSad dk og xzkgd] ns'k ds izfr
T;knk bZekunkj gS vkSj mldk iSlk cSad dks gj
gky esa lqjf{kr j[kuk pkfg, vkSj vxj fdlh Hkh
izdkj ls lkbZcj vijkf/k;ksa }kjk mlds mlds cSad
[kkrs esa Mkdk M+kydj iSlk fudkyk tkrk gS rks
blds fy, cSad dks gh bldh ftEesnkjh ysuh
gksxhA

20. ;gk¡ ;g Hkh mYys[kuh; gS fd
vkosndx.k us bl U;k;ky; ds ,d U;k;ewfrZ ds
cSad [kkrs ls lkbcj Bxh ds ek/;e ls iSls
fudkys gSa vkSj vkosndx.k ds fo}ku vf/koDrkx.k
us ;g Lohdkj fd;k gS fd mDr iSlk vkosndx.k
us okfnuh dks okil dj fn;s gSaA

21. izdj.k ds leLr rF; ,oa ifjfLFkfr;ksa
dks n`f"Vxr j[krs gq, rFkk izLrqr ekeys ds
xq.k&nks"k ij fcuk dksbZ fVIi.kh fd;s esjs fopkj ls
vkosndx.k uhjt e.My mQZ jkds'k] riu
e.My] 'kwcks 'kkg mQZ lqHkkthr ,oa rkSlhQ teka
dks tekur ij eqDr djus dk dksbZ i;kZIr vk/kkj
ugha ik;k tkrk gSA

22. rnuqlkj vkosndx.k uhjt e.My mQZ
jkds'k] riu e.My] 'kwcks 'kkg mQZ lqHkkthr ,oa
rkSlhQ teka ds mDr tekur vkosnu i= cyghu
gS ,oa fujLr gksus ;ksX; gSA

23. rnuqlkj vkosndx.k uhjt e.My mQZ
jkds'k] riu e.My] 'kwcks 'kkg mQZ lqHkkthr ,oa
rkSlhQ teka ds mijksDr tekur vkosnu i=
fujLr fd;s tkrs gSaA
----------
(2022)01ILR A15
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Writ Petition No. 8403 of 2021
alongwith
Criminal Misc. Writ Petition No. 8370 of 2021

Vibhor Rana ...Petitioner
Versus
Union of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh, Sri Rishi Upadhyay, Sri
Neelesh Ram Chandani, Sri Sumit Suri, Sri
Gopal Swaroop Chaturvedi, Sri Anurag
Khanna

Counsel for the Respondents:
Sri Pranay Krishna, Ashish Pandey, Special
Public Prosecutor (NCB), Sri Arunendra
Kumar Singh, A.G.A.

Narcotic
Drugs
&
Psychotropic
Substances,
1985
-
Section
42
-
Petitioners have been made distributor of
drugs manufactured by Abbott Health
Care Pvt. Ltd. Including Phensedyl New
Cough Linctus-NCB seized 61000 bottles
of Phensedyl New Cough Linctus Syrupout of 5 batches seized-three batches
distributed by Petitioners-absolutely no
material on record to indicate that NCB
had any reason to believe that seized
consignment was of narcotic drug-and
that
he
has
power-pre-requisite
for
exercising power u/s 42 of NDPS Act-
Phensedyl
New
Cough
Linctus-not
a
narcotic drug-and any dealing in it-would
not be subject to the provision of NDPS
Act.
16 INDIAN LAW REPORTS ALLAHABAD SERIES
W.P. allowed. (E-9)

List of Cases cited:

1. Ashok Kumar Vs U.O.I., 2014 SCC OnLine All
16411

2. Bail No.13555 of 2021, Ajay Bajpai Vs St. of
U.P.

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

4. Hemant Kumar Saini Vs U.O.I., 2021 SCC On
Line AII 497

5. Roger Shashoua Vs Mukesh Sharma, (2017)
14 SCC 722
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Both these Writ Petitions involve
a
common
question
i.e.
whether
Phensedyl New Cough Linctus Syrup is a
Narcotic Drug and it comes within the
purview
of
Narcotic
Drugs
and
Psychotropic Substances Act (which will
hereinafter be referred to as the NDPS
Act''), therefore, both these Writ Petitions
are
being
decided
by
a
common
judgment.

2. Heard Sri Gopal Swaroop
Chaturvedi, learned Senior Advocate and
Sri Anurag Khanna, learned Senior
Advocate assisted by Sri Nipun Singh,
Shri Rishi Upadhyay, Sri Neelesh Ram
Chandani and Sri Sumit Suri, Advocate
learned counsel for the petitioner in Writ
Petition No. 8403 of 2021 and Sri Navin
Sinha, learned Senior Advocate assisted
by Sri Raghav Dev Garg, Advocate,
learned counsel for the petitioner in Writ
Petition No. 8370 of 2021, Sri Ashish
Pandey,
Advocate,
Special
Public
Prosecutor for Narcotic Control Bureau,
Lucknow and Sri. Arunendra Kumar
Singh, the learned A.G.A. for the State.

3. The petitioner in Writ Petition No.
8403 of 2021 is the sole proprietor of a
proprietorship
firm
"G.
R.
Trading
Company" (hereinafter referred to as the
''Company') having its office at Saharanpur,
which has been granted a license under
Rules 61(1) and 61(2) of the Drugs Rules,
1945. The petitioner's company deals in the
distribution of various pharmaceutical
drugs and it has entered into an agreement
with M/S Abbott Health Care Pvt. Ltd.,
under which the company has been made a
super distributor to distribute more than
300 pharmaceutical drugs manufactured by
Abbott Health Care Pvt. Ltd.

4. The petitioner in Writ Petition
No.8370 of 2021 is the proprietor of a
proprietorship concern by the name of
"Sachin Medicos" having its registered
office at Bajaria Road, First Floor, Thana
Janakpuri, Saharanpur, which is a drug
distribution company having license under
Rules 61 (1) and 61 (2) of the Drugs Rules,
1945. Sachin Medicos deals in the
distribution of various pharmaceutical
drugs, including Phensedyl New Cough
Linctus.

5. The dispute which gave rise to the
filing of both the Writ Petitions, started on
17-01-2021, when a joint team of the
Narcotic Control Bureau (which will
hereinafter be referred to as "the NCB")
and the Special Task Force Varanasi
conducted a search and seized 61,000
bottles of Phensedyl New Cough Linctus
Syrup from some location in district
Jaunpur. These bottles of the cough syrup
came from five different batches. Pursuant
to the aforesaid seizure, some arrests were
made by the NCB and a Case No. NCBLZU-CR No. 04/21 was registered under
the NDPS Act. The Investigating team has
found that out of the five batches of
1 All. Vibhor Rana Vs. Union of India & Anr.
17
Phensedyl New Cough Linctus Syrup, three
batches have been distributed by G. R.
Trading Company owned by Vibhor Rana
and Sachin Medicos owned by Bittu
Kumar.

6. The Intelligence Officer, NCB sent
notices to G. R. Trading Company owned by
Vibhor Rana and to Sachin Medicos owned by
Bittu Kumar in purported exercise of powers
conferred under Section 67 of the NDPS Act,
summoning them to appear before him on 0203-2021. The petitioner in Writ Petition No.
8403 of 2021 Vibhor Rana being the
proprietor of G. R. Trading Company,
appeared in response to the aforesaid notice
and on 03-03-2021 his voluntary statement
was recorded in which he inter alia stated that
he is the proprietor of the company. He applied
for a license in the year 2019 and he is a super
distributor of M/S Abbott Health Care Pvt.
Ltd. On being asked about Batch Nos.
PHB0423, PHB0435 and PHB0440, he has
given all the documents of these batches. He
had sent the goods on 13-01-2021 and issued
invoices and E-way bills and has received
payments of the goods through RTGS in the
bank account of the Company in Punjab
National Bank, Main Ghantaghar Branch. The
petitioner in Writ Petition No. 8370 of 2021
Bittu Kumar, being the proprietor of Sachin
Medicos also recorded his voluntary statement
which was on similar lines. Both the
petitioners have filed copies of licences
granted to them by the Food Safety & Drug
Administration, U.P. District Saharanpur.

7. The petitioners have pleaded that
they have appeared in response to further
notices issued by the Intelligence Officer,
NCB and provided all the relevant
documents.

8. Section 42 of the NDPS Act
confers the power of entry, search, seizure
and arrest without warrant or authorisation
in the following conditions: -

"42. Power of entry, search,
seizure and arrest without warrant or
authorisation.--(1) Any such officer (being
an officer superior in rank to a peon, sepoy
or constable) of the departments of central
excise,
narcotics,
customs,
revenue
intelligence or any other department of the
Central
Government
including
paramilitary forces or armed forces as is
empowered in this behalf by general or
special order by the Central Government,
or any such officer (being an officer
superior in rank to a peon, sepoy or
constable) of the revenue, drugs control,
excise, police or any other department of a
State Government as is empowered in this
behalf by general or special order of the
State Government, if he has reason to
believe from personal knowledge or
information given by any person and
taken down in writing that any narcotic
drug, or psychotropic substance, or
controlled substance in respect of which
an offence punishable under this Act has
been committed or any document or other
article which may furnish evidence of the
commission of such offence or any illegally
acquired property or any document or other
article which may furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter V-A of this Act is
kept
or
concealed
in
any
building,
conveyance
or
enclosed
place,
may,
between sunrise and sunset,--

(a) enter into and search any such
building, conveyance or place;
18 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) in case of resistance, break
open any door and remove any obstacle to
such entry;

(c) seize such drug or substance
and all materials used in the manufacture
thereof and any other article and any
animal or conveyance which he has reason
to believe to be liable to confiscation under
this Act and any document or other article
which he has reason to believe may furnish
evidence of the commission of any offence
punishable under this Act or furnish
evidence of holding any illegally acquired
property which is liable for seizure or
freezing or forfeiture under Chapter V-A of
this Act; and

(d) detain and search, and, if he
thinks proper, arrest any person whom he
has reason to believe to have committed
any
offence
punishable
under
this
Act:..........."

9. There is absolutely no material on
record to indicate that before entering the
premises in Jaunpur and seizing therefrom
61,000 bottles of Phensedyl New Cough
Linctus, the Officers of N.C.B. had any
reason to believe that the consignment
being seized was of a narcotic drug, and
that he had power to seize the same, which
is a pre-requisite for exercising the power
under Section 42 of the NDPS Act.

10. Sri Gopal Swaroop Chaturvedi
and Sri. Anurag Khanna, learned Senior
Advocates appearing for the petitioner in
Writ Petition No. 8403 of 2021 and Sri.
Navin Sinha, learned Senior Advocate
appearing for the petitioner in Writ Petition
No. 8370 of 2021 have submitted that even
though the petitioners have cooperated in
the investigation, the investigation is being
carried out by the respondent without
jurisdiction as Phensedyl New Cough
Linctus Syrup is neither a Narcotic drugs
nor is it a psychotropic substance and,
therefore, it does not fall within the
purview of the NDPS Act.

11. It is mentioned on the label
affixed on the bottle of Phensedyl as also
on the license of M/S Abbott Health Care
Pvt. Ltd. that the prescription dosage of
Phensedyl Cough Syrup is 5 ml and each
dosage unit contains 10 mg of Codeine
Phosphate IP, besides Chlorpheniramine
Maleate I.P. Thus Phensedyl contains
merely 0.2 % Codeine.

12. The petitioner has specifically
pleaded that "the consignment which has
been seized was sent to agencies licensed
under Rule 61 (1) of the Drugs Rules, for
therapeutic purposes. It is not the case of
the prosecution agency that Phensedyl New
Cough Linctus is a banned drug in the State
of Uttar Pradesh. The same gets prescribed
by various medical practitioners in normal
course, which pleading has not been denied
in the counter affidavit."

13. However, on 15-07-2021, the
Intelligence Officer, NCB has filed a
Complaint under Sections 8, 21 (c), 22, 25,
29 and 60 (3) of the NDPS Act in the Court
of Special Judge, NDPS Act at Jaunpur
against ten persons for the alleged illegal
handling of Phensedyl Syrup. In the entire
complaint, there is no averment that the
alleged offending goods found with the
accused persons are a narcotic substance
and the accused persons were found to have
committed any act which was in violation
of the prohibition contained in Section 8 of
the Act. Moreover, in the entire complaint
there is absolutely no averment that the
alleged offence falls within the purview of
the NDPS Act and that it falls within the
purview of jurisdiction of the Special
Court. The relevant paragraphs of the
1 All. Vibhor Rana Vs. Union of India & Anr.
19
complaint which make a mention of the
goods seized and of its components, are
being reproduced below: -

"32. That the original Samples
marked as LISI, L2Si, L3SI & L5SI have
been sent to CRCL New Delhi vide letter
no. NCB/LKO/III/INV/Seiz/04/2021/3670
dated
10.01.2021.
The
Chemical
Examination report dated the samples
under reference answer positive test for
Codeine Phosphate."

"46. That, the Chemical report,
dated
03.03.2021
vide
F.
No.I/ND/R/2020/CLD-1207 (N) to 1211
(N) which was received on 15.03.2021
from CRCL, New Delhi was sent to be
served to the arrested above 08 accused
persons
individually
though
the
Jail
Superintendent
Jaunpur,
vide
letter
NCE/LKO/III/SEIZ/04/2021/4252
dated
19.03.2021. The receipt of individual
arrested persons from Jail Superintendent,
Jaunpur has been received vide their letter
No.137/U.T./2021
dated
03.04.2021,
Lucknow (U.P.) was recovered at the time
of said seizure on 17.01.2021. Hence, a
follow up action was conducted at this firm
by the NCB Lucknow along with Drug
Department, Lucknow on 19.01.2021,
related documents were collected and after
scrutiny of documents, summoned the
owner of this firm Girjesh Kumar to join
the investigation. Statement u/s 67 of
NDPS Act was recorded and due to nonavailability of several documents and
definite lead on that day, he was allowed to
go but the investigation was kept open
against him. Accordingly, keeping our
investigation intact, a letter was also
written to the Commissioner, FSDA, with
the request to conduct an enquiry against
this firm and if any anomaly or deviation
observed, immediately be shared. After
enquiry, the drug license of this firm was
cancelled by the drug department on
20.03.2021 vide letter no......202-21/364-4
on the grounds of its conscious and
voluntary collusion in the illegal sale &
illicit diversion of the seized consignment
of Phensedyl Syrup by resorting to the
illegal modus operandi of using the number
of the cancelled drug license no. LKO2016/20B/000563, LKO-2016/21B/000563
in place of the new drug license no.
UP320B002511 & UP3221B002495 and
knowingly selling scheduled H drug to
physically non-existent firms by resorting
to illegal sale & illicit diversion of
1,19,9000 bottles of Phensedyl Syrup in a
period between 01/04/20 to 18/01/21 to
Balaji Agency @ Varanasi, Vaijyanti
enterprises Chandauli, Kunal Pharma Agra
& Maa Ambey Medical Agency in whole
sale only, and on 26.03.2021. During his
confessional statement he confessed his
conscious & voluntary collusion in this
illegal sale & illicit diversion of the seized
consignment of Phensedyl Syrup by
resorting to the illegal modus operandi of
using the number of the cancelled drug
license in place of the new drug licence and
consciously involving himself in selling &
illicit trafficking of restricted schedule H
drug @ seized consignment of Phensedyl
Syrup to physically non-existent firms in
close collusion with other con-accused &
the suspects".

"50. That, 01 invoice bearing
number PP-003775 dated 08.01.2021 of
Palak Pharma, Shop No.118, BC Medicine
Market, Naya Gaon, East, Aminabad,
Lucknow (U.P.) was recovered at the time
of seizure on 17.01.2021. Hence, a follow
up was conducted at this firm by the NCB
Lucknow along with Drug Department, on
18.01.2021, collected related documents
and after scrutiny of documents summoned
20 INDIAN LAW REPORTS ALLAHABAD SERIES
Pawan Singh on 27.01.2021 to join the
investigation on 28.01.2021. Statement u/s
67 of NDPS Act of Pawan Singh was
recorded and found that Pawan Singh is not
the registered person of this firm, hence,
statements of registered person were also
recorded u/s 67 of NDPS Act but, due to
non-availability of several documents and
the leads, they were allowed to go but the
investigation was kept open and a letter
written to the Commissioner, FSDA with a
request to conduct enquiry against firm and
to share immediately if any anomaly or
deviation observed. After enquiry, the drug
licence of this firm was cancelled by the
drug department on 20.03.2021 vide their
letter no.../2020-21/364-4 on the grounds of
its physical non-existence and its conscious
and voluntary collusion in the illegal sale
and
illicit
diversion
of
the
seized
consignment of Phensedyl Syrup
by
resorting to the illegal modus operandi of
knowingly selling schedule H drug to
physically non-existent firms by resorting
to illegal sale and illicit diversion of
1,15,000 bottles of Phensedyl Syrup in a
period between 01/04/20 to 01/02/21 to
Balaji Agency @ Varanasi, Anika his father
and he sent medical document regarding
his treatment along with sale purchase
details of Phensedyl Syrup of said invoice.
2nd notice sent on 13.04.2021 through
speed
post
and
he
again
sent
on
30.04.2021,
the
medical
documents
regarding his treatment. 3rd notice was sent
on 11.05.2021 through speed post, but
again he sent medical treatment regarding
his treatment along with sale purchase
details of Phensedyl Syrup of said invoice.
Statement of Pawan Singh was recorded on
02.06.2021. In his voluntary statement, he
confessed his conscious & voluntary
collusion in this illegal sale and illicit
diversion of the seized consignment of
Phensedyl Syrup by resorting to the illegal
modus operandi of knowingly & regularly
selling Phensedyl syrup in bulk, including
5000 bottles of seized Phensedyl Syrup
vide
invoice
no.
PP-0003775
dated
08.01.2021
to
physically
non-existent
firms,
Balaji
Agency,
Anika
Pharmaceuticals and Parwati Traders."

"62. That, on the basis of seized
invoices pertaining to Sachin Medicos
Pharmaceuticals Distributors, Saharanpur
at the time of seizure, a notice u/s 67 of
NDPS was issued on 21.01.2021 to this
firm with direction to report on 28.01.2021
and a follow up action conducted at
Saharanpur with the help of local police,
but this firm was found closed, hence,
notice u/s 67 was affixed on it. A letter was
received on 03.02.2021 from the owner of
this firm that he had fallen ill due to cold
and he would report this office immediately
on recovery. 2nd notice was issued on
20.02.2021 with direction to report on
02.03.2021 and this notice was affixed on
the shutter of this firm due to closure of the
said firm, along with Drug Inspector,
Saharanpur on 25.02.2021. Bittu Kumar,
the owner of Sachin Medicos joined the
investigation on 02.03.2021, but due to
non-availability
of
several
documents
pertaining to the suspected transaction, the
investigation was kept opn against him
with direction to appear before the I.O.
with all relevant documents for scrutiny &
further needful action. Accordingly, 3rd
notice u/s 67 was sent through DZU, but
said notice was returned undelivered by
DZU due to incomplete address. On
06.06.2021, a follow up action was
conducted by the NCB Lucknow team at
his residential address, but it was found that
he left his village 05 years and is residing at
an unknown place in Saharanpur City. Drug
Deptt. Saharanpur after establishing his
involvement in the illicit diversion of
Codeine based Phensedyl Syrup, cancelled
1 All. Vibhor Rana Vs. Union of India & Anr.
21
the license of this firm. On receipt of the
required sale/purchase details in r/o Sachin
Medicos, it was found that G. R. Traders
Company sold these batches to 35 Roorkee
& Bhagwanpur based firms, but on
thorough
scrutiny
of
the
documents
submitted by G. R. Trading Company,
Saharanpur it came to notice that the sale
which was made to 06 firms, located at
Bhagwanpur, through Delhi Punjab Freight
Carrier on 13.01.2021 as per invoices, was
further sold to Sachin Medicos, Saharanpur
on the same day by all six Bhagwanpur
based
firms
through
Badri
Narayan
Transport. But, as per the receipts copies of
the sale invoices of these six firms,
submitted by G. R. Trading Company, the
consignment was received on 14.01.2021
by
them.
Thereafter,
records
of
sale/purchase was sought from existing
firms and as per the documents, submitted
by these firms, it came to notice that all
these firms sold the concerned batches of
Phensedyl Syrup to only one firm i.e.
Sachin
Medicos
Pharmaceuticals
Distributors,
Saharanpur
through
physically
non-existent
transport
companies on the same day i.e. on 13-0121. Accordingly, a physical verification
a/w the official of drug department was
conducted on 05.06.2021 and it was found
that 05 firms out of 35 are not existing
physically
and
Life
Medicos,
Bhagwanpur submitted fake issue/receipt
vouchers. Sachin Medicos, further sold
the seized bottles of Phensedyl Syrup to
various non-existent firms in Sultanpur,
Varanasi & Chandauli through Kartik
Roadlines. The physical verification of the
transport agencies, viz. Delhi, Punjab
Freight
Carrier
&
Badri
Narayan
Roadlines, owned by Sanjeev Kumar
Rathore, S/O Laxman Singh Rathore, has
revealed
that
both
these
transport
companies, which were used for the
transport of Phensedyl Syrup for GR
Traders to 35 other medical firms on
13.01.21, and, back to Sachin Medicos, on
13.01.21 itself in a time period of 04 hours
only, are physically not existing. Efforts
are being made to trace and involve him
in investigation. As he could not join the
investigation till now, hence, investigation
is kept open against him. A prayer for
NBW is also being filed against him in the
Hon'ble Court.

14. But in paragraph 76 of the
complaint the respondent has stated that
investigation against the main suspects -
including the petitioner, is proposed to be
kept open so that their role in the case may
be properly established and supplementary
complaint, if any, may be filed against
them. The respondent has categorically
stated in the complaint that the petitioner
has reported to the NCB office and has
tendered his voluntary statement and has
given all the details regarding three batches
which had originated from his firm.

15. The petitioner has pleaded that he
had issued a purchase order to Abbott
Health Care Pvt. Ltd. and made the due
payments
through
bank
transfer.
In
pursuance whereof Abbott Health Care Pvt.
Ltd. issued three batches of Phensedyl New
Cough Linctus on 22-12-2020, 04-01-2021
and 12-01-2021. In pursuance of the
aforesaid, tax invoices were also raised by
Abbott Health Care Pvt. Ltd. for all the
three batches. The said consignments were
then transported to the petitioner's firm.
The petitioner had received purchase orders
from 35 firms located in Uttarakhand, all of
which have a license under Rules 61 (1)
and 61 (2) of the Drugs Rules and a valid
22 INDIAN LAW REPORTS ALLAHABAD SERIES
GST I.D. The petitioner raised invoices
against the consignee firms and dispatched
the consignments through Delhi Punjab
Freight Carrier which had issued receipts to
the petitioner for transporting the said
consignments and had got generated E-way
bills for transit of the said consignments.
All the 35 firms paid the consideration
amount to the petitioner through bank
transfers thus establishing the legitimacy of
the entire transaction. All the 35 firms have
received the consignments and have made
endorsements of receiving the goods on the
receipts of the transport company As far as
the petitioner is concerned, the transaction
stood completed on the delivery of the
consignments to the 35 purchaser firms
which are based in Uttarakhand and if
thereafter the medicines supplied by the
petitioner are found at Jaunpur, the
petitioner is not responsible for the same in
any manner. The respondent has alleged in
the Complaint filed in the Court of Special
Judge, NDPS Act, Jaunpur that during
physical verification, five firms namely
Shruti Medical Agency Bhagwanpur, Linke
Health Care Bhagwanpur, R. D. Pharma,
Bhagwanpur, Surya Health Care Agency
Bhagwanpur
and
Om
Medicos
Bhagwanpur
were
found
non-existent
which allegation against the petitioner
seems incomprehensible in view of the
facts that all these five firms hold licenses
under Rule 61 of the Drugs Act, copies
whereof have been filed with the Writ
Petition.

16. The Intelligence Officer, NCB has
filed a counter affidavit in Writ Petition N.
8403 of 2021 inter alia stating that
Phensedyl Syrup is a codeine based syrup
and
comes
under
the
purview
of
manufactured drug as such it is covered
under the NDPS Act. 61,000 bottles of 100
ml. Phensedyl syrup were recovered, the
total weight of the syrup recovered is 8,235
Kg. and one of the contents in the syrup is
codeine phosphate, covered under the
NDPS Act and the commercial quantity
provided under the Act is 1 Kg and the
seized
quantity
is
much
above
the
commercial quantity. Section 80 of the
NDPS Act, provides that "The provisions
of this Act or the Rules made there under
shall be in addition to, and not derogation
of the Drugs and Cosmetics Act, 1940 (23
of 1940) or the rules made thereunder. In
light of aforesaid provision the provisions
of NDPS Act shall also applicable on Drugs
and Cosmetics Act. The petitioner is
engaged in illicit sale, purchase and
diversion of Phensedyl in violation of
Section 8 of NDPS Act, which prohibits
possession
of
narcotics
substances,
narcotics drugs or psychotropic substance
except for medical or scientific purposes in
accordance with the relevant provisions of
law and as such possession, sale and
purchased of codeine bases syrup for non
therapeutic and non medical uses is illegal
and hence provisions of NDPS Act shall be
attracted. The license issued by the
competent authority to the petitioner
company is for the therapeutic and medical
use only and not for the use of intoxication
or for getting a stimulant effect. Any
diversion or illegal sale, purchase and
possession of narcotic drugs intended for
medical uses must attract. Section 80 of
NDPS Act read with Section the 2 of Drugs
and
Cosmetics
Act
provides
for
investigation of the case under the NDPS
Act, thus, the provisions of NDPS Act can
be applied along with the provisions of the
Drugs and Cosmetics Act. The drug and
Cosmetics Act deals with the drugs which
are intended to be used for therapeutic or
medical uses, and on the other hand the
NDPS Act intends to curb and penalize the
use of narcotic drugs which are used for
1 All. Vibhor Rana Vs. Union of India & Anr.
23
intoxication or for getting a stimulant
effect. The diversion and illegal sale,
purchase and possession of Phensedyl
syrup which is a narcotic drug attracts the
provisions of NDPS Act. According to the
provisions of Section 80 of NDPS Act and
Section 2 of the Drugs and Cosmetic Act,
the proceeding can be initiated and the
investigation can be made under the
provisions of NDPS Act.

17. Sri Ashish Pandey, learned
Special Public Prosecutor (NCB) has
submitted that Phensedyl syrup is a
Codeine based drug, therefore, it is a
narcotic drug. It is a case of illegal
diversion of narcotic drug, therefore, the
provisions of NDPS Act would apply to the
present case. The Narcotic Control Bureau,
had made a seizure 6,100 bottles of
Phensedyl Syrup from a godown in Jaunpur
and there was no license for storage of the
drug in that godown.

18. Now we proceed to examine the
relevant provisions of the Narcotic Drugs
and Psychotropic Substances Act, 1985 to
ascertain whether Phensedyl New Cough
Linctus is a Narcotic Drug, which would
come under the purview of the NDPS Act.

19. The Narcotic Drugs and
Psychotropic Substances Act, 1985 has
been
enacted
with
the
object
to
"consolidate and amend the law relating
to narcotic drugs, to make stringent
provisions for the control and regulation
of operations relating to narcotic drugs
and psychotropic substances to provide
for the forfeiture of property derived
from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to
implement
the
provisions
of
the
International Convention on Narcotic
Drugs and Psychotropic substances and
for matters connected therewith." As the
object of the Act suggests, it deals with
narcotic
drugs
and
psychotropic
substances only and unless the offending
substance is a narcotic drugs or a
psychotropic substance, the provisions of
the NDPS Act will not apply.

20. Section 2 of the NDPS Act
contains definitions and the following
definitions are relevant for adjudicating
the dispute involved in the present case: -

(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
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;

(xiv) "narcotic drug" means
coca leaf, cannabis (hemp), opium, poppy
straw and includes all manufactured
drugs;

(xv) "opium" means--

(a) the coagulated juice of the
opium poppy; and
24 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) any mixture, with or without
any neutral material, of the coagulated juice
of the opium poppy,

but
does
not
include
any
preparation containing not more than 0.2
per cent of morphine;

(xvi)
"opium
derivative"
means--

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

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

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

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

(e) all preparations containing
more than 0.2 per cent of morphine or
containing any diacetylmorphine;

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

(a) .....

(b) .....

(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:

............."

21. The position which emerges from
a combined reading of the above quoted
definitions is that as per Section 2 (xvi) (c)
of the Act, codeine and its salts are "opium
derivatives". As per Section 2 (xi) (a),
opium
derivatives
are
included
in
"manufactured drugs" and as per Section 2
(xiv) all manufactured drugs are included
in the definition of "narcotic drugs", unless
the same falls within the exception
appended to Section 2 (xi) providing that
"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".

22. On 14-11-1985 the Government
of India had issued a notification No. 826
(E) dated 14.11.1985 and S.O. 40 (E) dated
29-01-1993 containing the list of narcotic
drugs and Entry 35 thereof is as follows:-

"Methyl morphine (commonly
known as ''Codeine') and Ethyl morphine
and their salts (including Dionine), all
dilutions and preparations except those
which are compounded with one or more
other ingredients and containing not
more than 100 milligrams of the drug
per dosage unit and with a concentration
of not more than 2.5% in undivided
preparations and which have been
established in Therapeutic practice."
1 All. Vibhor Rana Vs. Union of India & Anr.
25

 (emphasis supplied)

23. Thus, as per the aforesaid
Notification, if any drug contains not more
than 100 milligrams of Methyl Morphine,
which is commonly known as Codeine, per
dosage unit, and in that drug Codeine is
compounded with one or more other
ingredients and if in the drug the
concentration of Codeine is not more than
2.5% in undivided preparations and the
drug has been established in Therapeutic
practice, will not be a "Manufactured
Drug" and, therefore, it will not be a
"Narcotic Drug".

24. The prohibition contained in
Section 8 of the Act is applicable to
"Narcotic Drugs" and since Phensedyl New
Cough
Linctus
contains
Codeine
compounded with one other ingredient,
namely Chlorpheniramine Maleate and
since Phensedyl New Cough Linctus
contains merely 10 milligrams per dosage
unit of 5 ml, which is not more than 100
milligrams of the drug per dosage unit in
undivided
preparations
and
the
concentration of Codeine in Phensedyl
New Cough Linctus is merely 0.2%, which
obviously is not more than 2.5% and which
has
been
established
in
Therapeutic
practice, it is not a "Manufactured Drug"
and, therefore, it is not a "Narcotic Drug",
the prohibition contained in Section 8 of
the Act does not apply to it.

25. Phensedyl New Cough Linctus
contains Codeine which is mentioned at
Serial
Number
20
in
Schedule
H1
appended to the Drugs Rules, 1945 and a
note appended to Schedule H1 provides
that "Preparations containing the above
drug substances and their sales excluding
those intended for topical or external use
(except
opthalmic
and
ear
or
nose
preparations) containing above substances
are also covered by this Schedule".
Therefore, Phensedyl New Cough Linctus
is a drug covered by the Drugs and
Cosmetics Act, 1940.

26. To clarify this position, on
26.10.2005 the Drug Controller General of
India had written letter to all the State
Drugs Controllers stating as follows:-

"As you are aware there are
number of Cough preparations like Corex
of M/s Pfizer Ltd. Mumbai, Phensedyl of
M/s. Nicholas Piramal India Limited,
Mumbai, Codokuff of M/S. German
Remedies, Codeine Linctus of M/s Zydus
Alidac etc. moving in inter state commerce.
These preparations contain among other
drugs Codeine Phosphate 10 mg as one of
the ingredients. By virtue of the fact that
these preparations contain Codeine and it
salts they do not fall under the provisions
of NDPS Act and Rules of 1985 but they
fall under Schedule H of the Drugs and
Cosmetics Rules and are governed by the
said rules. Though stocking and sale of
these drugs do not attract the provisions of
NDPS Act and Rules 1985 however these
formulations are prescriptions drugs and
are to be dispensed on the prescriptions
drug and are to be dispensed on the
prescription
of
a
registered
Medical
Practitioner only. Further you may be
already aware that under notification
number S.O. 826(E) dated 14th Nov. 1985
under the Narcotic Drugs and Psychotropic
Substances Act and Rules 1985 certain
preparations are exempted as manufactured
drugs provided the preparations contain the
Narcotic drug to the extent permitted. In
26 INDIAN LAW REPORTS ALLAHABAD SERIES
respect of Codeine under entry no.35 it is
stated that Codeine and Ethyl Morphine
and their salts including Dionine all
dilutions and preparations are considered to
be manufactured drugs except those which
are compounded with one or more other
ingredients and containing not more than
100 milligrams of the drug per dosage unit
and with a concentration of not more than
2.5 per cent in undivided preparations and
which have been established in therapeutic
practice."

27. In March 2009 the Drugs
Controller General (India) had issued a
letter to the Associated Chambers of
Commerce and Industry of India in
response to a request for clarification of
drug substance Cough Linctus containing
codeine Phosphate stating that:-

"In
this
connection
this
Directorate had already issued a circular
letter
vide
our
letter
number
X11029/27/05-D dated 26/10/2005 to all
State Drugs Controllers with a copy to
various associations and a copy Narcotic
Control
Bureau
New
Delhi
(copy
enclosed). The above circular inter alia
stated that these preparations (Cough
Linctus containing Codeine Phosphate)
contains among other drugs Codeine
Phosphate 10 mg as one of the ingredients.
By virtue of the fact that these preparations
contain Codeine and its salts they do not
fall under the provisions of NDPS Act and
the Rules of 1985 but they fall under
Schedule H of the Drugs and Cosmetic
Rules and are governed by the said rules.
Though stocking and sale of these drugs do
not attract the provisions of NDPS Act and
Rules 1985, however these formulations
are prescriptions drugs and are to be
dispensed on the prescriptions of a
registered Medical Practioner only.

Further you may be aware that
under notification number S.O.826 (E)
dated 14the November, 1985 under the
Narcotic
Drugs
and
Psychotropic
Substances Act and Rules 1985 certain
preparations are exempted as manufactured
drugs provided the preparations contain the
Narcotic drug to the extent permitted. In
respect of Codeine under entry no. 35 it is
stated that Codeine and Ethyl Morphine
and their salts including Dionine all
dilutions and preparations are considered to
be manufactured drugs except those which
are compounded with one or more other
ingredients and containing not more than
100 miligrams of the drug per dosage unit
and with a concentration of not more than
2.5 per cent in undivided preparations and
which have been established in therapeutic
practice. "

28. Learned counsel for the petitioner
has placed reliance on a judgment of an
Hon'ble Single Judge of this Court in
Ashok Kumar Vs. Union of India, 2014
SCC OnLine All 164111, in which the
following categorical findings have been
recorded after going through all the
relevant provisions of law: -

"101. Considering the above
noted discussion, relevant provisions of
N.D.P.S. Act and Rules, relevant provisions
of D & C Act and Rules, judgments
rendered by various Courts and documents
appended with the petition which have
neither been disputed nor controverted
referred
to
hereinabove,
this
Court
concludes as follows:

(i) Even if all the facts and
circumstances alleged by the prosecuting
agency are admitted to be correct, it cannot
be said that the petitioner, who was serving
as Territory Sales Manager in M/s Abbott
Healthcare Pvt. Ltd. (manufacturer of
1 All. Vibhor Rana Vs. Union of India & Anr.
27
Phensedyl Cough Syrup), Division at
Lucknow, in any way abetted or conspired
to commit offence under section 8 of the
N.D.P.S. Act as punishable under section
21 of the said Act.