- (1.) The learned Counsel for the petitioner at the very beginning submitted that the petitioner is in custody for about 3 years and 3 months and although charge has been framed on 7th of August,, 2012 but till date not a single witness has been examined.
(2.) Then he vehemently urged that the subject-matter of the offence Alprazolam was initially included in the schedule appended to the NDPS Act, specifying psychotropic substances as also in the schedule I of the NDPS Rules, 1985. Subsequently, by an amendment made on June 9, 1988 Alprazolam was deleted from schedule I of the Rule and included in schedule II thereof and schedule II of the NDPS Rules, 1985 was substituted by GSR 556 (E) dated 14.7.95. Then it is pointed out that by notification GSR 129 (E) New Delhi dated 26th February, 2003 NDPS Rules, 1985 was amended by the NDPS (Amendment) Rules, 2003 and by such amendment Alprazolam was deleted from schedule II of the Rules and then was included in schedule H of Drugs and Cosmetics Rules, 1985. The said schedule came into force on and from March 16, 2006. Thus, at the time of seizure the Alprazolam was not within the schedule of the Rules of 1985 but is a schedule - H drug under the Drugs and Cosmetics Rules, 1985. It is then contended that Alprazolam not being specified in any schedule appended to the NDPS Rules on the face of the allegations made against him and the materials collected in support of the same, he cannot be held liable for any offence under Section 8 read with Section 22 of the NDPS Act. He further contended in this case there is no allegation against the petitioner that he either engaged in exporting Alprazolam or the same was imported to India. In this connection the learned Counsel for the petitioner heavily relied on the decision of the Apex Court in the case of State of Uttaranchal v. Rajesh Kumar Gupta, 2007 1 CalCriLR 164. On the other hand, the learned Counsel appearing on behalf of the NCB first pointed out that in this case from the possession of the present petitioner about 1000 grams of Alprazolam was seized and the petitioner in his voluntary statement made to the officers of the NCB and recorded under Section 67 of the NDPS Act, admitted that such huge quantity of Alprazolam was stored for manufacturing and increasing the potency of heroin. He further pointed out that already charge has been framed and schedule for recording of the evidence has been fixed. He next contended that merely because the Alprazolam is not now a specified psychotropic substance in the schedules to the NDPS Rules and more particularly when it is a psychotropic substance within the meaning of Section 22 of the NDPS Act and is very much a specified psychotropic substance as per the schedule appended to the NDPS Act, it cannot be said that the prosecution of the petitioner under Section 8 read with Section 22 of the NDPS Act is not legally valid. He further pointed out the aforesaid notification dated 26th February, 2003 whereby Alprazolam was deleted from the schedule II of the NDPS Rules was issued in exercise of power under Section 53A of the NDPS Rules, which deals with export and import of Narcotic Drug and Psychotropic Substance and not under Section 64 of the said Rule which relates to general prohibition. He then draws our attention to the decision of the Hon'ble Apex Court in the case of D. Ram Krishnan v. Intelligence Officers, NCB arising out of SLP (Cri) 2312 of 2009 and pointed out the case of the prosecution covers by the ratio of the said case and the decision referred to from the side of the State in the case of State of Uttranchal v. Rajesh Kumar Gupta has no manner of application in the facts and circumstances of the present case.
(3.) In the case in hand, we find total 1000 grams of Alprazolam was seized from the possession of the petitioner and whereas according to the table specifying the small quantity and commercial quantity of the narcotic drug or psychotropic substance, the commercial quantity of Alprazolam is 100 grams. It is true under the notification referred from the side of the petitioner the Alprazolam has now been omitted from schedule II appended to NDPS Rules and the psychotropic substance specified in the said schedule is in terms of Section 53A of the NDPS Rules which deals with the export of narcotic drug or psychotropic substance and not with general prohibition. Apart from that in the notification specifying small quantity and commercial quantity of Narcotic Drug and Psychotropic Substances Act, Alprazolam is still there. The provisions of Section XXIII defined psychotropic substance and according to such definition psychotropic substance means any substance natural or synthetic or any natural material or any salt of preparation of such substance or material included in the list of psychotropic substance specified in the schedule and in the said schedule containing the list of psychotropic substance, the Alprazolam is very much there in serial No. 30.;