State of U.P v. Mohammad Shahnawaz and another) under Section

first information report bearing No. 0404 of 2024 was lodged by S.I. Devendra Singh, under Section 8 read with Section 21 of the N.D.P.S. Act, 1985 relatable to the commission of the offences on

29.07.2024. As per the version in the first information report, it is alleged that recovery of capsule, tablet as well as injection being incriminating articles was found in possession of the applicant no.

1. Learned counsel for the applicants further submits that the applicants were enlarged on bail, however, with relation to the said incident, which occurred on 29.07.2024, a complaint also stood lodged by the opposite party no. 2, Drug Inspector, Moradabad and on 30.11.2024, the applicant has been summoned by the Court of Additional Chief Judicial Magistrate, Moradabad under Section 18 (C)/27 (B) (ii) and 18A/28 of the Drugs and Cosmetics Act, 1940. Learned counsel for the applicants has further submitted that two parallel criminal proceedings could not have been lodged against the applicants, one a subject matter of first information report under Section 8/21 of the N.D.P.S. Act, 1985 and other being complaint under the Drugs and Cosmetics Act, 1940.

4. Argument is that in case both the proceedings are directed to continue simultaneously then with respect to the same act or omission, there would be two different punishments under different provisions, which is impermissible. Learned counsel for the applicants seeks to draw inference from Article 20 of the Constitution of India, thus, it is contended that the proceedings sought to be initiated by virtue of the complaint under the Drugs and Cosmetics Act, the summoning order be set aside.

5. Learned AGA while countering the submission of learned counsel for the applicants has submitted that both the proceedings can continue simultaneously as there is no bar to a trial or conviction under two different enactments but the bar is only to the punishment of offender twice for the offence. He further submits that it would be premature at this stage to throttle the complaint, particularly, in view of the fact that there happens to be no jurisdictional error committed by the court below while summoning the applicant.

6. I have heard learned counsel for the parties and gone through the records carefully.

7. Apparently, proceedings under Section 8/21 of the N.D.P.S. Act stood lodged against the applicants by virtue of an FIR No. 0404 of 2024 relatable to the commission of the offences on 29.07.2024 and thereafter a complaint was also preferred relatable to the said offences on 22.11.2024, pursuant where to the applicants have been summoned on 30.11.2024 by the Chief Judicial Magistrate, Moradabad in Complaint Case No. 13455 of 2024 (State of U.P. Versus Mohammad Shahnawaz and another) under Section 18 (C)/27 (B) (ii) and 18A/28 of the Drugs and Cosmetics Act, 1940.

8. Section 80 of the Narcotic Drugs And Psychotropic Substances Act, 1985 provides 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."

9. Section 80 of the Narcotic Drugs And Psychotropic Substances Act, 1985 came up for consideration in recent judgment of Hon'ble Apex Court in Directorate of Revenue Intelligence v. Raj Kumar Arora and others; 2025 SCC Online SC 819, wherein the following was observed: "90. On a conspectus of the foregoing discussion on the scheme of the NDPS Act and its rules along with the D&C Act and the rules made thereunder, the position of law can be succinctly stated as follows: i. .............. ii. ............. ................. ................. xv. Section 80 states that the provisions of the NDPS Act or the Rules made thereunder shall be in addition to, and not in derogation of the D&C Act and the Rules made thereunder. Therefore, when an offence under the D&C Act is made out or can potentially be made out, the accused can also be charged or prosecuted for an offence under the NDPS Act or vice-versa. The object sought to be achieved under both the legislations is also distinct i.e. the NDPS Act is a special law enacted to regulate the operations relating to narcotic drugs and psychotropic substances with a view to curb and penalise the usage of drugs by persons for intoxication etc., whereas the D&C Act was enacted to prevent substandard, adulterated and spurious drugs from entering the medical market and to maintain high standards in medical treatment. Hence, offences under both the enactments can also be said to have been constituted simultaneously, where the circumstances so require."

10. On a pointed query being raised to the learned counsel for the applicants as to whether there is any provision either under the 1985, Act or 1940, Act creating a bar that both the proceedings cannot go on simultaneously the answer of the learned counsel for the applicants is in negative. The offences under N.D.P.S., Act as well as Drugs and Cosmetics Act are different and distinct as they contain separate and different penal provisions and the consequences in case of violations.

11. The Hon'ble Apex Court in the case of T.S. Baliah v. T.S. Rangachari; AIR 1969 Supreme Court 701 had the occasion to consider the said objection, wherein para 6 observed as under: "We proceed to consider the next question arising in this case, viz., whether the appellant can be prosecuted both under Section 177, Indian Penal Code and Section 52 of the 1922 Act at the same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General Clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177, Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct Section 26 of the General Clauses Act states: "26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."

12. Reliance has also been placed upon the judgment in the case of State of Bihar v. Murad Ali Khan and others; (1988) 4 SCC 655, wherein para 28, it was observed as under: "In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, Amritsar, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827) "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."

13. In State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others; AIR 2018 Supreme Court 5348, the Hon'ble Apex Court held as under: "7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: "Provisions as to offences punishable under two or more enactments – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

14. Applying the judgment in the present facts of the case and irresistible conclusion stands drawn that there is no bar to a trial for a conviction of an offender under two different enactments but the bar is only to the punishment of the offender for twice for the offence.

15. Interestingly, in the present proceedings, challenge has been raised to the summoning order on the ground that already a first information report under the N.D.P.S. Act has been lodged. Since the question of punishment of offender twice for the same offence under different statutory enactments has not arisen thus it would be appropriate for the Court to throttle the investigation. When the stage arises, it shall be open for the applicant to take all legal recourses as available under law.

16. With the aforesaid observations, application stands disposed of. Order Date :- 29.4.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

first information report bearing No. 0404 of 2024 was lodged by S.I. Devendra Singh, under Section 8 read with Section 21 of the N.D.P.S. Act, 1985 relatable to the commission of the offences on

29.07.2024. As per the version in the first information report, it is alleged that recovery of capsule, tablet as well as injection being incriminating articles was found in possession of the applicant no.

1. Learned counsel for the applicants further submits that the applicants were enlarged on bail, however, with relation to the said incident, which occurred on 29.07.2024, a complaint also stood lodged by the opposite party no. 2, Drug Inspector, Moradabad and on 30.11.2024, the applicant has been summoned by the Court of Additional Chief Judicial Magistrate, Moradabad under Section 18 (C)/27 (B) (ii) and 18A/28 of the Drugs and Cosmetics Act, 1940. Learned counsel for the applicants has further submitted that two parallel criminal proceedings could not have been lodged against the applicants, one a subject matter of first information report under Section 8/21 of the N.D.P.S. Act, 1985 and other being complaint under the Drugs and Cosmetics Act, 1940.

4. Argument is that in case both the proceedings are directed to continue simultaneously then with respect to the same act or omission, there would be two different punishments under different provisions, which is impermissible. Learned counsel for the applicants seeks to draw inference from Article 20 of the Constitution of India, thus, it is contended that the proceedings sought to be initiated by virtue of the complaint under the Drugs and Cosmetics Act, the summoning order be set aside.

5. Learned AGA while countering the submission of learned counsel for the applicants has submitted that both the proceedings can continue simultaneously as there is no bar to a trial or conviction under two different enactments but the bar is only to the punishment of offender twice for the offence. He further submits that it would be premature at this stage to throttle the complaint, particularly, in view of the fact that there happens to be no jurisdictional error committed by the court below while summoning the applicant.

6. I have heard learned counsel for the parties and gone through the records carefully.

7. Apparently, proceedings under Section 8/21 of the N.D.P.S. Act stood lodged against the applicants by virtue of an FIR No. 0404 of 2024 relatable to the commission of the offences on 29.07.2024 and thereafter a complaint was also preferred relatable to the said offences on 22.11.2024, pursuant where to the applicants have been summoned on 30.11.2024 by the Chief Judicial Magistrate, Moradabad in Complaint Case No. 13455 of 2024 (State of U.P. Versus Mohammad Shahnawaz and another) under Section 18 (C)/27 (B) (ii) and 18A/28 of the Drugs and Cosmetics Act, 1940.

8. Section 80 of the Narcotic Drugs And Psychotropic Substances Act, 1985 provides 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."

9. Section 80 of the Narcotic Drugs And Psychotropic Substances Act, 1985 came up for consideration in recent judgment of Hon'ble Apex Court in Directorate of Revenue Intelligence v. Raj Kumar Arora and others; 2025 SCC Online SC 819, wherein the following was observed: "90. On a conspectus of the foregoing discussion on the scheme of the NDPS Act and its rules along with the D&C Act and the rules made thereunder, the position of law can be succinctly stated as follows: i. .............. ii. ............. ................. ................. xv. Section 80 states that the provisions of the NDPS Act or the Rules made thereunder shall be in addition to, and not in derogation of the D&C Act and the Rules made thereunder. Therefore, when an offence under the D&C Act is made out or can potentially be made out, the accused can also be charged or prosecuted for an offence under the NDPS Act or vice-versa. The object sought to be achieved under both the legislations is also distinct i.e. the NDPS Act is a special law enacted to regulate the operations relating to narcotic drugs and psychotropic substances with a view to curb and penalise the usage of drugs by persons for intoxication etc., whereas the D&C Act was enacted to prevent substandard, adulterated and spurious drugs from entering the medical market and to maintain high standards in medical treatment. Hence, offences under both the enactments can also be said to have been constituted simultaneously, where the circumstances so require."

10. On a pointed query being raised to the learned counsel for the applicants as to whether there is any provision either under the 1985, Act or 1940, Act creating a bar that both the proceedings cannot go on simultaneously the answer of the learned counsel for the applicants is in negative. The offences under N.D.P.S., Act as well as Drugs and Cosmetics Act are different and distinct as they contain separate and different penal provisions and the consequences in case of violations.

11. The Hon'ble Apex Court in the case of T.S. Baliah v. T.S. Rangachari; AIR 1969 Supreme Court 701 had the occasion to consider the said objection, wherein para 6 observed as under: "We proceed to consider the next question arising in this case, viz., whether the appellant can be prosecuted both under Section 177, Indian Penal Code and Section 52 of the 1922 Act at the same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General Clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177, Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct Section 26 of the General Clauses Act states: "26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."

12. Reliance has also been placed upon the judgment in the case of State of Bihar v. Murad Ali Khan and others; (1988) 4 SCC 655, wherein para 28, it was observed as under: "In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, Amritsar, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827) "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."

13. In State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others; AIR 2018 Supreme Court 5348, the Hon'ble Apex Court held as under: "7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: "Provisions as to offences punishable under two or more enactments – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

14. Applying the judgment in the present facts of the case and irresistible conclusion stands drawn that there is no bar to a trial for a conviction of an offender under two different enactments but the bar is only to the punishment of the offender for twice for the offence.

15. Interestingly, in the present proceedings, challenge has been raised to the summoning order on the ground that already a first information report under the N.D.P.S. Act has been lodged. Since the question of punishment of offender twice for the same offence under different statutory enactments has not arisen thus it would be appropriate for the Court to throttle the investigation. When the stage arises, it shall be open for the applicant to take all legal recourses as available under law.

16. With the aforesaid observations, application stands disposed of. Order Date :- 29.4.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad