D. RAMAKRISHNANversusINTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU

                        [2009] 11 S.C.R. 442


A                       D. RAMAKRISHNAN
                                 V.
    INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU
              (Criminal Appeal No. 1324 of 2009)
                           JULY 27, 2009
B
            [S.B. SINHA AND DEEPAK VERMA, JJ.]

       Narcotic Drugs and Psychotropic Substances Act, 1985
  - s. 8 (c) rlw ss. 22, 23, 25, 27A, 53, 53A and 58 - Prosecution
C under - For unauthorised export of drugs - Conviction by
  courts below - Plea that conviction if at all could be under
  Drugs and Cosmetics Act and not under Narcotic Drugs Act
  - Held: Conviction under Narcotic Drugs Act was justified -
  The case does not fall within purview of Cosmetics Act -
D Drugs and Cosmetics Act, 1940.

      Appellant-accused No. 2 alongwith accused No. 1                -1
  was prosecuted and convicted by courts below uls. 8(c)
  rlw ss. 22, 23, 25, 27 A, 53, 53A and 58 of Narcotic Drugs
E and Psychotropic Substances Act, 1985. The allegation
  against the accused was that they unauthorisedly
  exported the drugs which find place at serial Nos. 30, 56
  and 64 of the Schedule appended to the Act.

      In appeal to this court the plea of the appellant was
F that his offence could come under the Drugs and
  Cosmetics Act, 1940, but not under the Narcotic Drugs
  Act or the Rules framed thereunder.

        Dismissing the appeal, the Court
G     HELD: Appellant and his co-accused are said to have
  got licenses under the Drugs and Cosmetics Act, 1940.
  They had got general permission for import and export.
  Section 80 of Narcotic Drugs and Psychotropic
  Substances Act, 1985 provides that the provisions of the
H                          442
         D. RAMAKRISHNAN v. INTELLIGENCE OFFICER                443
               NARCOTIC CONTROL BUREAU

    Act or the rules made thereunder are in addition to, and           A
    not in derogation of the Drugs and Cosmetics Act, 1940
    or the rules made thereunder. Drugs and Cosmetics Act,
    1940 does not deal with exports. The provisions of
    Customs Act do. The licensees, therefore, were, thus,
    required to comply with the specific requirements of the           B
    Act and the Rules. It is not denied or disputed that the
    appellant neither applied for nor was granted any
    authority to export by the Narcotic Commissioner or any
    other Officer who is authorized in this behalf. [Paras 10
    and 11] [447-D-G]                                                  c
         State of Uttarnachal v. Rajesh Kumar Gupta 2007 (1)
    sec 355, distinguished.
                          Case Law Reference:
                                                                       D
         2001 (1) sec 355          Distinguished.        Para 3

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1324 of 2009.

        From the Judgment & Order dated 12.2.2009 of the High          E
    Court of Judicature at Madras in Criminal Original Petition No.
    28454 of 2008 in CC No. 100 of 2008.

        K.T.S. Tulsi, Vikas Pahwa and Rishi Malhotra for the
•   Appellants .
                                                                       F
        Mohan Jain, ASG, P.K. Dey, Shreekant N. Terdal for the
    Respondents.

        The Judgment of the Court was delivered by
                                                                       G
        S.~. SINHA, J. 1. Leave granted.

         2. One Seethapathy (Accused No.1 ), since absconding,
    President of Mis Chandra Importers Inc., New York (for the sake
    of brevity, hereinafter referred to as, "the Company"), was
    indulging in illegal internet pharmacy business. It has a branch   H
    444        SUPREME COURT REPORTS                 [2009] 11 S.C.R.

                                                                           )
A at Coimbatore. Appellant herein (Accused No.2) was managing
  the activities of the said branch. A search was made in the
  office of the accused and various documents and computers
  were seized. It is alleged that the appellant used to mail
  consolidated requirements by means of packing slips in the
B name of individual customers to the e-mail l.D. of the first
  accused. The first accused used to procure different drugs
  indicated by the appellant by the local pharmacy and pack
  separately as per packing slips and dispatch the same to the             ;
  customers abroad through airmail and RMS post office at
c Coimbatore. The drugs procured and exported are Alprazolam,
  Lorazepam, Nitrazepam, etc. Indisputably, these drugs find
  place at Serial Nos. 30, 56 and 64 respectively of the Schedule
  appended to the Narcotic Drugs and Psychotropic Substances
  Act, 1985 (for short, "the Act")
D        3. Inter alia, on the premise that for export of the said drugs
    no permission from the Competent Authority was obtained, the
    appellant and his co-accused was prosecuted under Section
    8(c) read with Section 22, 23, 25, 27A, 53, 53A and 58 of the
    Act.
E
       Primarily, relying on or on the basis of a decision of this
  Court in State of Uttaranchal v. Rajesh Kumar Gupta [(2007)
  1 sec 355], it was urged that the appellant and his co-accused
  might have committed an offence under the Drugs and
F Cosmetics Act, 1940 but not under the Act or the Rules framed
  thereunder. The learned Special Judge as also the High court,
  however, disagreeing with the said contention of the appellant
  herein rejected his application for bail.

          4. Mr. K.T.S. Tulsi, learned Senior Counsel appearing on
G behalf of the appellant would contend that the High Court
   committed a serious error in passing the impugned order
   insofar as it failed to take into consideration that all drugs being
   Schedule 'G' and 'H' drugs under the Drugs and Cosmetics
   Rules, 1945, export thereof would not attract the provisions of
H. Rule 58 of the Narcotic Drugs and Psychotropic Substances
     D. RAMAKRISHNAN v. INTELLIGENCE OFFICER                     445
     NARCOTIC CONTROL BUREAU [S.B. SINHA, J.]

Rules, 1985 (for short, "the Rules") framed by the Central              A
Government in exercise of the powers conferred upon it by
Section 9 read with Section 76 of the Act. Mr. Tulsi furthermore
contended that use of the drugs for medicinal purposes is
acknowledged in terms of the proviso appended to Section 8(c)
of the Act. In any event, he would content, Rules 53 and 64 of          B
the Rules being genus, Rule 58 would be subject to Rule 53.

     5. Mr. Mohan Jain, learned Additional Solicitor General
appearing on behalf of the respondent, on the other hand, would
contend that in terms of Rules 58 and 59 of the Rules, no export        C
of any drug is permissible unless a permit is obtained for export
thereof from the Competent Authority. It was urged that the
minimum sentence for the offences committed for which the
appellant has been charged being 10 years, this Court should
not enlarge the appellant on bail.
                                                                        D
    6. The drugs in question are no doubt mentioned in
Schedule 'G' and 'H' of the Drugs and Cosmetics Rules.

      7. Section 2(xxiii) of the Act defines "psychotropic
 substance" to mean, any substance, natural or synthetic, or any        E
 natural material or any salt or preparation of s.uch substance
or material included in the list of psychotropic substances
specified in the Schedule. The drugs mentioned in the First
 Information Report ("FIR") find place at Serial Nos. 30, 56 and
64 of the Schedule appended to the Act. Chapter Ill of the Act
                                                                        F
provides for prohibition of certain operations. Clause (c) thereof
mandates that no person shall produce, manufacture, possess,
sell, purchase, transport, warehouse, use, consume, import
inter-state, export inter-state, import into India, export from India
or transship any narcotic drug or psychotropic substance,
except for medical or scientific purposes and in the manner and         G
to the extent provided by the provisions of this Act or fhe rules
or orders made thereunder and in a case where any such
provision, imposes any requirement by way of licence, permit
or authorization also in accordance with the terms and
conditions of such licence, permit or authorization.                    H
    446         SUPREME COURT REPORTS                [2009) 11 S.C.R.

                                                                         J
A       8. Chapter VI of the Rules deals with import, export and
  transshipment of narcotic drugs and psychotropic substances.
  R1.1le 53 provides for general prohibition. Rule 58 provides that
  subject to rules 3 and 53A, no narcotic drugs, or psychotropic
  substances specified in the Schedule of the Act, shall be
B exported out of India without an export authorization in respect
  of the consignment issued by the issuing authority in Form No.5
  appended to these therein. Rule 59 provides for issue of export
  authorization. Rule 63 provides for prohibition of import and
  export of consignments through a post office box,
c         9. In Rajesh Kumar Gupta (supra), this Court opined:

          "19. It has not been brought to our notice that the 1985 Act
          provides for the manner and extent of possession of the
          contraband. The rules framed under Section 9 of the 1985
D         Act read with Section 76 thereof, however, provide for both
          the manner and the extent, inter alia, ,of production,
          manufacture, possession, sale, purchase, transport, etc. of
          the contraband. Chapter VI of the 1985 Rules provides for
          import, export and trans-shipment of narcotic drugs and
E         psychotropic substances. Rule 53 contains general
          prohibition in terms whereof the import and export out of
          India of the narcotic drugs and psychotropic substances
          specified in Schedule I appended thereto is prohibited.
          Such prohibition, however, is subject to the other
          provisions of the said Chapter. Rule 63 to which our           >
F
          attention has been drawn specifically prohibits import and
          export of consignments through a post office box but
          keeping in view the general prohibition contained in Rule
          53 the same must be held to apply only to those drugs and
          psychotropic substances which are mentioned in Schedule
G
          I of the Rules. and not under the 1985 Act. Similarly,
          Chapter VII provides for psychotropic substances. Rule 64
          provides for general prohibition. Rules 53 and 64, thus,
          contain a genus and other provisions following the same
          under the said Chapter are species thereof. This we say
H
         D. RAMAKRISHNAN v. INTELLIGENCE OFFICER                 447
         NARCOTIC CONTROL BUREAU [S.B. SINHA, J.]
\
         in view of the fact that whereas Rule 64 provides for          A
         general prohibition in respect of sale, purchase,
         consumption or use of the psychotropic substances
         specified in Schedule I, Rule 65 prohibits manufacture of
         psychotropic substances, whereas Rule 66 prohibits
         possession, etc. of psychotropic substances and Rule 67        B
         prohibits transport thereof. Rule 67-A provides for special
         provisions for medical and scientific purposes.

         20. The general prohibitions contained in both Rules 53
         and 64, therefore, refer only to the drugs and psychotropic
         substances specified in Schedule I. It is neither in doubt     c
         nor in dispute that whereas the Schedule appended to the
         1985 Act contains the names of a large number of
         psychotropic substances, Schedule I of the Rules
         prescribes only 35 drugs and psychotropic substances."
                                                                        D
         10. Appellant and his co-accused are said to have got
    licenses under the Drugs and Cosmetics Act, 1940. They had
    got general permission for import and export.

         11. Section 80 of the Act provides that the provisions of
    the Act or the rules made thereunder are in addition to, and not
                                                                        E
    in derogation of the Drugs and Cosmetics Act, 1940 or the rules
    made thereunder.

         Drugs and Cosmetics At, 1940 does not deal with exports.
    The provisions of Customs Act do. The licensees, therefore,         F
    were, thus, required to comply with the specific requirements
    of the Act and the Rules. It is not denied or disputed that the
    appellant neither applied for nor granted any authority to export
    by the Narcotic Commissioner or any other Officer who is
    authorized in this behalf.                                          G

~         12. We, therefore, are of the opinion that the High Court
    is right in opining that the decision of this Court in Rajesh
    Kumar Gupta (supra) is not applicable to the facts of this case.

         13. For the reasons aforementioned, there is no merit-ifl- - H
   448       SUPREME COURT REPORTS               [2009] 11 S.C.R.


A the appeal. The appeal is dismissed accordingly. No costs.

       14. However, the trial court may consider the desirability
  of concluding of the trial as early as possible. The observations
  made herein are only for the purpose of determining as to
  whether a prima facie case is made out against the appellant
8 and the same may not be construed to be a finding on the guilt
  of the appellant or otherwise. The learned Special Judge shall
  determine the case pending before it in accordance with law
  and on its own merits.

C K.K.T.                                       Appeal dismissed.