The Patna High Court has ruled that the seized articles which have been found to be Phenothiazine and Promethazine do not come within the ambit of any narcotic drug and psychotropic substances for the purposes of the NDPS Act. Therefore, the judgment of conviction and order of sentence qua the appellants for possession of these two substances, prima facie, appears to be against the provisions of the NDPS Act and might not be sustainable. Consequently, the Court directed the suspension of the sentence and released the appellants on bail during the pendency of their respective appeals.
The Division Bench comprising Justice Mohit Kumar Shah and Justice Arun Kumar Jha noted that the appellants had argued that “Phenothiazine” and “Promethazine” are neither narcotic drugs nor psychotropic substances under the NDPS Act, nor are they covered under its Schedule or notified by any government notification. Instead, they are compounds covered by the Drugs and Cosmetics Act, 1940, specifically under Schedule H (item no. 397) and Schedule G of the Drugs Rules, 1945. The State contended that these substances are used as “cutting agents” to increase bulk, reduce purity for street-level sale, enhance pharmacological effects, and mask the identity of the narcotic drug.
The Bench observed that Section 2(xiv) and 2(xxiii) of the NDPS Act define narcotic drugs and psychotropic substances, and Section 3 empowers the Central Government to add or omit substances from the list. It noted that neither the Schedule attached to the NDPS Act, nor Schedule I of the NDPS Rules, 1985, nor the gazette notification S.O. 1055(E) dated 19.10.2001 contains Phenothiazine or Promethazine.
The Bench further observed that these substances fall under Schedules H and G of the Drugs Rules, 1945, and any violation is punishable under Section 27 of the Drugs and Cosmetics Act, 1940. Relying on the judgments in Union of India vs. Ashok Kumar Sharma and Bablu @ Rajesh Kumar vs. The State of Bihar, the Bench noted that for offences under Chapter IV of the Drugs and Cosmetics Act, 1940, only a Drug Inspector is authorized to register an FIR and institute a prosecution by way of complaint, and the police have no power to institute an FIR or investigate.
Briefly, the informant, while on patrolling duty, received a message regarding three persons riding two motorcycles to deliver a consignment of Heroin. The police intercepted the riders, who attempted to take a U-turn and escape but were chased and caught. Appellants Dharmendra Kumar and Ravindra Kumar were found riding a Glamour Motorcycle keeping a bag in between them, from which 1.006 Kg of heroin-like substance was recovered.
Appellant Vijay Kumar was riding a Pulsar Motorcycle with a white plastic bag hanging from the handle, from which 1.012 Kg of heroin-like substance was recovered. Testing by DD Kit showed prima facie evidence of contraband containing heroin. However, the FSL report revealed that the seized substance was “Phenothiazine along with Promethazine”. The Trial Court convicted the appellants under Section 21(c) of the NDPS Act, sentencing them to undergo rigorous imprisonment for 15 years with a fine of Rs. 1.50 lakhs.
Appearances:
Advocates Ajay Kumar Thakur, Ritwaj Raman, Shashi Priya, and Pankhuri, for the Appellants
APP Shashi Bala Verma, for the Respondent
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