NEW DELHI, MAY 19, 2013: THE Petition was filed by the Narcotics Control Bureau (NCB) in High court invoking powers under Section 482 of the Code of Criminal Procedure, 1973 for setting aside the order passed by the Special Judge-NDPS whereby the Respondent's prayer for alteration of the charge and for remitting the case to the Court for trial of the case for the offences under the Drugs and Cosmetics Act, 1940 (D&C Act) was allowed.

Proceedings were initiated against the respondent firm which was mainly selling bunogesic injections, etc. after purchasing them from distributors.

The Respondent contended for transfer of the case on the file of the Metropolitan Magistrate as possession of the bunogesic injections was not covered under the NDPS Act but was covered only under the D&C Act which was exclusively triable by the Court of Metropolitan Magistrate.

The Special Judge, NDPS opined that bunogesic injection which contained Buprenorphine Hydrochloride was a Schedule ‘H' drug under the D&C Act and though it was a psychotropic substance under the NDPS Act but since it was not included in Schedule I to the Narcotic Drugs and Psychotropic Substances Rules, 1985 (NDPS Rules), its possession, sale, etc. is not completely prohibited under the NDPS Act.

Against the said decision, NCB filed the present Petition.

After hearing both sides, the High Court dismissed the petition on NCB by relying on the earlier of same High Court in case of Rajinder Gupta Vs State, wherein it was held:

“Section 8(c), which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale, use etc., of any psychotropic substance “except for medical or scientific purposes and in the manner and to the extent” provided by the provisions of the NDPS Act or NDPS Rules or orders made thereunder . This means that while there is a general prohibition against the manufacture, possession, sale, use etc., of a psychotropic substance, if the same is a medicine and is to be used for a medical purpose then the manner and extent of its manufacture, possession, sale, use shall be as provided in the NDPS Act or NDPS Rules or orders made thereunder . We must remember that buprenorphine hydrochloride I.P. is a Schedule H drug within the meaning of the D&C Act and Rules. Its manufacture, sale etc., is regulated by the D&C Act and D&C Rules. Coming back to the NDPS Act, I find that in the case of a medication, which also happens to be a psychotropic substance within the meaning of the NDPS Act, its “extent and manner ” of use etc., would be governed by the other provisions of the NDPS Act or NDPS Rules.

Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with “Psychotropic Substances”. Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribes the general prohibition. It provides that - “No person shall manufacture, possess, transport, import inter-state, export inter-state, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I.” 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 --( I) Narcotic Drugs and (II) Psychotropic Substances. We are concerned with psychotropic substances. There is a list of 33 specific psychotropic substances with entry no. 34 being “Salts and preparations of above”. It is significant to note that neither buprenorphine hydrochloride nor buprenorphine 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. "

(See 2013-TIOL-407-HC-DEL-NDPS)