State of Rajasthan v. Suresh Kumar and Sessions Case No

: Mr. Vijay Singh Yadav, PP with Mr. Shubham Sain HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 16/04/2025 Order

1. These two revision petitions were preferred by the petitioners accused Suresh Kumar Samota and Surendra Kumar aggrieved from order dated 20.09.2019 in Sessions Case No.15/2018 : State of Rajasthan Vs. Suresh Kumar and Sessions Case No.14/2018 : State of Rajasthan Vs. Surendra Kumar respectively, whereby an order to frame charge has been passed against petitioner(s) under the NDPS Act. [2025:RJ-JP:19760] (2 of 9) [CRLR-2513/2019]

2. S.B. Criminal Revision Petition No.2513/2019 is filed aggrieved from petitioner accused Suresh Kumar Samota in a matter arising out of FIR No.275/2017 registered at Police Station Reengus, District Sikar, wherein 87850 tablets of Digifresh 0.5 Alprazolam, 18000 Alprest 0.5 tablets Alprazolam, 3600 XL-PAM

0.5 tablets Alprazolam and 338 plastic bottles of Amditus Cough Syrup 100 ML (Codeine Phosphpwk) recovered and offence under Sections 8/21 and 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) is charged. Learned Additional Sessions Judge, Srimadhopur, District Sikar, has directed to frame charge under Sections 8/21 and 8/22 of the NDPS Act.

3. S.B. Criminal Revision Petition No.2514/2019 was filed in a matter arising out of FIR No.274/2017 registered at Police Station Reengus, District Sikar, wherein 40000 tablets of Digifresh 0.5 Alprazolam was recovered from the petitioner accused and an offence under Sections 8/21 and 8/22 of NDPS Act is charged. Learned Additional Sessions Judge, Srimadhopur, District Sikar has directed to frame charge under Sections 8/21 and 8/22 of the NDPS Act against the petitioner accused Surendra Kumar.

4. Since both these matters are arising out of common question of law, therefore, we are deciding with common order.

5. Learned counsel for the petitioners while referring the facts of the case submitted that in both the cases, the petitioners accused are registered Pharmacist and medical drug dealer, licensed under the Drugs and Cosmetics Act, 1940, who lawfully purchased these medicines from manufacturer of medicine under [2025:RJ-JP:19760] (3 of 9) [CRLR-2513/2019] the licence of storage and he stored these drugs in premises. She further submitted that if there is any voilation under the Drug and Cosmetics Act then the Drug Controller has an authority to initiate action against the petitioner(s) but the police has no authority to take action or register a criminal case against the petitioners. She further submitted that the provisions of the NDPS Act are not applicable when the recovered article is a scheduled drug and purchased under a valid licence. She further submitted that the trial Court without considering the provisions of law has framed the charge against the petitioners and same is contrary to settled principles of law.

6. Learned counsel has further referred judgment in case of Madan Mohan Singh Vs. State of Gujarat and Anr. : (2010) 8 SCC 628 and submitted that to frame a charge, it is necessary that the ingredients of offence are made out and if the ingredients are not available from the material then a charge cannot be framed against the petitioners. She also referred the judgment in case of Iqbal @ Bala and Ors. Vs. State of U.P. & Ors. : 2023 INSC 685 and submitted that the trial Court is duty bound to consider the material available on record and if sufficient material is not available, then the petitioners accused are entitled to be discharged under Section 227 of CrPC. At last, she submitted that since the petitioners are licensed pharma dealer under the Drugs and Cosmetics Act, therefore, the provisions of the NDPS Act are not applicable in the instant case.

7. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted that the NDPS Act is a specific and [2025:RJ-JP:19760] (4 of 9) [CRLR-2513/2019] subsequent law, therefore, the provision will prevail over the provisions of the Drugs and Cosmetics Act.

8. Heard learned counsel for the petitioner(s) and learned Public Prosecutor and perused the material available on record.

9. Aggrieved from framing of charge under Sections 8/21 and 8/22 of the NDPS Act in different cases, these two revision petitions were preferred by the petitioner(s). Both the petitioners are Pharmacists having a drug licence under the Drugs and Cosmetics Act. Despite this, the SHO, Police Station Reengus has undertaken a search and seizure proceeding on 06.09.2017 and after recovery of huge quantity of Alprazolam tablets etc. the proceeding under the NDPS Act was instituted. Ultimately, separate charge-sheet(s) were filed. Learned trial Court after considering the submission has framed the charges against the petitioner(s).

10. The defence of petitioner(s) is that they are having a valid drug licence and it is an admitted fact that the petitioner(s) are having a drug licence under the Drugs and Cosmetics Act which was valid on date of search and seizure. The only issue is whether the petitioner is entitled to possess the recovered medicines in quantity under the said licence.

11. The Drug and Cosmetics Act was enacted in 1940 whereas the NDPS Act was enacted in 1985 and came into force on

14.11.1985. The Preamble itself of the NDPS Act shows that it is a law relating to narcotics drug to make stringent provision for control and regulation of operation relating to the narcotic drugs and psychotropic substances. The definition of psychotropic [2025:RJ-JP:19760] (5 of 9) [CRLR-2513/2019] substances is provided under sub-section (xxiii) of Section 2 of the NDPS Act. The definition of psychotropic substances is wide enough to include every type of drug or cosmetic including material specified in the schedule. When we perused the table (schedule) then we found that at entry No.28 codeine is mentioned and 10 grams is small quantity and whereas 1 KG is commercial quantity. Similarly, entry No.178 is for Alprazolam and 5 grams is small quantity and 100 grams is commercial quantity.

12. When we read the schedule with Section 2(xxiii) of NDPS Act then codeine and alprazolam are psychotropic substances and the provisions of the NDPS Act is attracted. It is also available on record that the recovered quantity from both the petitioners is for greater than commercial quantity, thus it is case for recovery of commercial quantity.

13. Now comes the question : Whether the NDPS Act is applicable or not, in wake of licence under the Drugs and Cosmetics Act?

14. Section 8 of the NDPS Act provides that any activity including production, manufacturing, possession, sale, purchase, transport, warehouse, use or consumption, transportation, import or export etc. of narcotic drugs and psychotropic substances is punishable but except for medical or scientific purpose and to the extent provided by the provision by this Act or the Rules or Order made thereunder and in case where any requirement by way of licence permit or authorization is provided then in accordance with said terms and conditions. [2025:RJ-JP:19760] (6 of 9) [CRLR-2513/2019]

15. The NDPS Act was enacted in 1985 whereas the Drugs and Cosmetics Act was promulgated in 1940. The Section 80 of the NDPS Act provides that the provision of this Act or Rules made thereunder shall be in addition to and not in derogation of the Drugs and Cosmetics Act or the Rules made thereunder.

16. Now comes the question : Whether the petitioners are authorized to store or possess or warehouse alprazolam/codeine in large quantity as recovered by police on

06.09.2017/07.09.2017?

17. The petitioners have submitted a drug licence and also a letter by Drug Controlling Officer, Sikar to PS Khatushyam Ji, District Sikar whereby Drug Controller has mentioned that the stock of any specific medicine is not fixed under the Drugs and Cosmetics Act. The provisions of the NDPS Act are not in derogation of the Drugs and Cosmetics Act, therefore, in order to bring a case under the exception, the duty lies upon the petitioners to establish that the psychotropic substance stored by them or in warehouse was legally permissible under the law.

18. After registration of FIR, the matter was investigated by police and a chargesheet was filed against petitioner(s). The chargesheet indicate that a separate licence under Rule 62 of the Rules of 1945 under the Drugs and Cosmetics Act was asked and the petitioner(s) were not having such licence. The description in chargesheet clearly indicate that the petitioners are lacking licence as required under the law.

19. In case of Iqbal @ Bala and Ors. Vs. State of U.P. & Ors. (supra), Hon’ble Supreme Court has considered provision of [2025:RJ-JP:19760] (7 of 9) [CRLR-2513/2019] Section 227 of CrPC and observed that the trial Court is empowered to consider overall circumstances of the case and it shall look into materials available on record and take a call whether a case of discharge is made out or not. In case of Madan Mohan Singh Vs. State of Gujarat and Anr. (supra), Hon’ble Supreme Court again considered the stage of charge and held that the trial Court has to consider the material available on record and to see that a particular case is made out or not.

20. The principles of law at the stage of charge were considered by Hon’ble Supreme Court in case of State of Bihar Vs. Ramesh Singh : (1977) 4 SCC 39 and Union of India Vs. Prafulla Kumar Samal & Anr. :(1979) 3 SCC 4 and were referred and relied in case of P. Vijayan Vs. State of Kerala & Anr. : (2010) 2 SCC 398. It was held that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. [2025:RJ-JP:19760] (8 of 9) [CRLR-2513/2019]

21. Again in case of State By Karnataka Lokayukta Police Station, Bengaluru Vs. M. R. Hiremath : (2019) 7 SCC 515, Hon’ble Supreme Court while considering several judgments on the issue in a matter relating to the Prevention of Corruption Act, 1988, has held that the trial court while dealing with an application for discharge at the stage of framing of charge must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction.

22. A similar opinion was also expressed in case of State of Rajasthan Vs. Ashok Kumar Kashyap : (2021) 11 SCC 191 and relied upon in case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf (2023 INSC 555), it was held that at the stage of framing of charge and/or considering discharge application, a mini trial is not permissible. A defence on merits is not to be considered at the stage of framing of charge and / or at the stage of discharge of application.

23. Having considered aforesaid legal position, it is apparent on record that the trial Court has considered the material available on record while framing the charge against the petitioners. The trial Court has not committed any illegality while framing the charge [2025:RJ-JP:19760] (9 of 9) [CRLR-2513/2019] against the petitioners. Therefore, the revision petitions sans merits and same are liable to be dismissed.

24. In view of discussion made hereinabove, the revision petition Nos.2513/2019 and 2514/2019 filed aggrieved from order to frame charge on dated 20.09.2019 are hereby dismissed.

25. Misc. application(s), if any, also stand disposed of. (ASHOK KUMAR JAIN),J MR/119-120