Mahavir S. Chauhan, J. - (1.) HAVING been apprehended and committed to custody since 31.10.2013 by the police of Police Station, Banur (District Sahibzada Ajit Singh Nagar) in First Information Report (for short, 'FIR') No. 73 dated 28.06.2013 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'), on the allegation that 2,00,000 tablets of Lomotil, and 3,04,000 capsules of Parvon Spas and Spasmo Proxyvon, sale of which was prohibited after 23.05.2013, were recovered on 28.06.2013 from canter bearing registration No. PB 05S 9654 and the arrestees had disclosed that the recovered tablets and capsules belonged to Naresh Kumar and Gopal Krishan of Moga and Anil Vasudeva, the petitioner, who is the stockist of M/s. Wockhardt Limited and sole proprietor of M/s. Anil Enterprises, licenced to sell, stock, exhibit or offer for sale or distribute by wholesale drugs under various schedules/forms prescribed under the Drugs and Cosmetics Act, 1940 (for short, 'the 1940 Act'), seeks his release from custody, pending trial, by way this petition under Section 439 of the Criminal Procedure Code (for short, 'Cr.P.C.'). As usual, State is contesting the petition.
(2.) I have heard learned counsel for the parties besides going through the record of the case. Learned counsel representing the petitioner has painstakingly taken me through the record to point out that the petitioner is the sole proprietor of M/s. Anil Enterprises, which has been duly licenced by the Licensing Authority, viz., Drugs Control Department, Delhi, to sell, stock or exhibit or offer for sale or distribute by wholesale drugs under various schedules/forms prescribed under the 1940 Act (vide Annexure P2 and P3); is an authorised stockiest of M/s. Wockhardt Limited (vide Annexure P1); vide notification dated 23.05.2013 (Annexure P4), the Ministry of Health and Family Welfare, Government of India, in exercise of its powers under Section 26A of the 1940 Act, suspended the manufacture for sale and distribution of "Dextropropoxyphene" and formulations containing the said substance for human use; to rectify an error in describing 'Dextropropoxyphene' as 'Dextyropropoxyphene', a fresh notification dated 30.08.2013 (Annexure P5) was issued as corrigendum; petitioner's firm received the consignments of Spasmo Proxyvon containing Dextropropoxyphene till 31.05.2013 (Annexure P9) and sold the said product, i.e. Spasmo Proxyvon to distributors till 11.06.2013 (Annexure P -7); vide communication dated 10.06.2013 (Annexure P -8) (received by petitioner's firm on 12.06.2013) M/s. Wockhardt Limited informed the petitioner to immediately stop further distribution/sale of Spasmo Proxyvon 8C and Proxyvon 8C manufactured by it containing Dextropropoxyphene and to recall the same from retailers in compliance with Government notification suspending manufacture/sale thereof; the notification dated 23.05.2013 (Annexure P4) was uploaded on the NICE Website only on 08.06.2013 (Annexure P19); Drug Controller General of India circulated notification dated 23.05.2013 (Annexure P4) vide communication dated 27.06.2013 (Annexure P10); Food & Drug Administration, Punjab circulated that notification vide communication dated 12.07.2013 (Annexure P11); and that in the present case, recovery is stated to be effected on 28.06.2013 when the notification dated 23.05.2013 (Annexure P4) was not in the knowledge of the authorities of the State of Punjab and it had not been communicated to the petitioner. The learned counsel also relies upon Collector of Central Excise versus New Tobacco Co. and others, : (1998) 8 SCC 250 to contend that mere printing of a notification in the Official Gazette is not sufficient and it becomes effective only when it is brought to notice of the public at large. He also relies upon order dated 03.12.2013 of this Court passed in Crl. Misc. No. M -40107 of 2013, 'Anil Vasudeva versus State of Punjab' wherein the petitioner has been allowed the concession of regular bail in similar circumstances.
(3.) IN Collector of Central Excise versus New Tobacco Co. and others (supra) New Tobacco Co. Ltd. which was earlier known as Duncan Tobacco Co. was engaged in manufacturing cigarettes. Since 1979, it used to pay duty on cigarettes manufactured by it at the rate fixed by Central Excise Notification No. 30/79 dt. 1st March, 1979, as amended from time to time. It was rescinded w.e.f. 30th November, 1982 by Notification No. 284/82 -C dt. 30th November, 1982, which prescribed new rates of excise duty. Between 30th November, 1982 and 8th December, 1982, the Company cleared 79,456 million cigarettes and paid duty thereon at the rate fixed by the Notification dated 1st March, 1979, as it did not know that a new notification was issued on 30th November, 1982. As the company had paid duty at a lesser rate, a show cause notice dated 22nd December, 1982, was issued calling upon the company to show cause why it should not pay the differential amount between the duty short -paid and the duty which had become payable in terms of the new notification dated 30th November, 1982. The Assistant Collector by his order dated 11th April, 1983, confirmed the said demand. The order of the Assistant Collector was upheld by the Collector of Central Excise (A) on 4th October, 1985. It then appealed to the Customs, Excise and Gold (Control) Appellate Tribunal. Only contention pressed by the company therein was that the Notification dated 30th November, 1982 was made available to the public on 8th December, 1982 and, therefore, duty at the enhanced rate could be lawfully demanded from it only from 8th December, 1982. Hon'ble the Supreme Court remitted the matter to the Assistant Collector for deciding when the notification concerned became effective in accordance with the observations which are to the following effect: We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.;