Anuj Kumar Agrawal vs S.S.P. and Others

G.P. Mathur, J.—This habeas corpus petition has been filed under Article 226 of the Constitution praying that the Petitioner be set at liberty forthwith.

The averments made in the petition and the supplementary affidavit reveal that a S.I. of P.S. Kotwali received information on 8.7.1999 that the Petitioner was standing near the Railway Bridge and he was having a substantial quantity of psychotropic substance in his possession. The Petitioner was apprehended at 14.10 hours and a search was made. The Petitioner was found to be keeping in his possession 4000 tablets of DIAZEPAM and also a country made pistol. The Petitioner was taken into custody and a FIR was lodged against him u/s 22 NDPS Act, which was registered as Case Crime No. 241 of 1999 at P.S. Kotwali. Another, case u/s 25 Arms Act being Case Crime No. 240 of 1999 was also registered against him. The Petitioner applied for bail but his bail application in Case Crime No. 241 of 1999 u/s 22, NDPS Act was rejected by the Special Judge (NDPS Act) Allahabad, on 27.7.1999. Thereafter, he filed Criminal Misc. Bail Application No. 11921 of 1999 in this Court which was rejected on 25.8.1999.

We have heard Shri Shankar Saun, learned Counsel for the Petitioner, and learned A.G.A. for the State.

It is not in dispute that a valid order of remand has been passed against the Petitioner and he is in judicial custody in pursuance thereof. As the Petitioner is in custody in pursuance of a valid judicial order, his detention in jail cannot be held to be unlawful or illegal in any manner. Therefore, there is no ground for issuing a writ of habeas corpus in favour of the Petitioner.

Learned Counsel has submitted that what was recovered from the possession of the Petitioner was DIAZEPAM and as the said article is not mentioned in the Schedule given to NDPS Rules, 1985, the Petitioner cannot be said to have committed any offence and his detention is wholly unlawful. In our opinion, the contention raised has no substance. Section 8 of NDPS Act provides that no person shall possess any psychotropic substance. Section 22 lays down the punishment in case any person is found to be in possession of any psychotropic substance in contravention of any provision of the Act or the Rules made thereunder. Section 2(xxiii) defines a "psychotropic substance" and it means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. Item No. 43 of the Schedule appended to the Act mentions DIAZEPAM. It is, therefore, obvious that DIAZAPAM is a psychotropic substance whose possession is prohibited u/s 8 of the Act except for certain specified purposes mentioned in the section. It is, therefore, clear that the Petitioner has contravened the provisions of Section 8 of the Act and has thereby committed an offence, which is punishable u/s 22.

The submission that DIAZEPAM is not mentioned in the Schedules appended to the Rules and, therefore, the Petitioner has committed no offence is wholly unsustainable in law. A perusal of the Schedule would show that the list of psychotropic substances has been given mentioning both the International non-proprietary name and as well as Chemical name of the substance. The identification of the psychotropic substance has to be made on the basis of its chemical name and not merely by International non-proprietary name. The chemical name of DIAZEPAM as given in Item No. 43 of the Schedule appended to the Act would show that its constituents are similar to PINAZEPAM, which is mentioned in Item No. 29 and PRAZEPAM, which is mentioned in Item No. 31 of Schedule-I to N.D.P.S. Rules. It cannot, therefore, be held that the substance, which the Petitioner was carrying, is not mentioned as one of the psychotropic substance as enumerated in Schedule-I of the Rules. That apart, if there is any inconsistency between the Act and the Rules, it is the Act which will prevail and not the Rules. If the Petitioner is found to be guilty of having contravened the provisions of the Act, he cannot escape liability merely on the ground that the Rules indicate otherwise. Learned Counsel has also referred to some decisions of Punjab and Haryana High Court in 1997 Cr U 4702; 1997 CrLJ 3104 and 1998 Cr LJ 1460 in support of his submission. We are of the opinion that the aforesaid decisions are distinguishable on facts and have no application to the present case.

The habeas corpus petition lacks merit and is hereby dismissed.