Forms are mandatory to submit of Substances Drugs Manufacturers in India

FORM 1 : REGISTER OF MANUFACTURE OFCONTROLLED
SUBSTANCES.
FORM 2 : REGISTER OF CONSUMPTION, SALE, IMPORT OR
EXPORT OFCONTROLLED SUBSTANCE.
FORM 3 : CONSIGNMENT NOTE
FORM4 : QUARTERLY RETURN OF MANUFACTURE OF CONTROLLED SUBSTANCE
FORM 5 : QUARTERLY RETURN OF RECEIPT, IMPORT, SALE,
CONSUMPTION OR EXPORT OF CONTROLLED
SUBSTANCE
FORM 6 : QUARTERLY REPORT ON TRANSPORT OF
CONTROLLED SUBSTANCE TO A CONSIGNEE
OUTSIDE THE ZONE OF A CONSIGNOR

——————————————————————————————————————————————————————————————————————————————————————————-

 

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. – 52

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 32609 of 2010

Petitioner :- Nisar Hussain Dar
Respondent :- Union Of India
Petitioner Counsel :- Preet Pal Singh Rathore
Respondent Counsel :- Sanjav Kumar Singh

Hon’ble Vikram Nath,J.
1. This is a second bail application. The First Bail Application No.30144 of 2009 was rejected by a detail order dated 21st October, 2010.
2. Search of the premises of M/s National Biotech, Village Serondhan, District Ghaziabad was made on 13th August, 2008 by the officials of the Narcotic Control Bureau (NCB). In that search 187.5 kg of ‘Anthralinic Acid’ was recovered from the premises.
3. Notices were given to the owner (the applicant) under Section 67 of the NDPS Act. The statement under Section 67 of the NDPS Act was recorded on 13th and 14th August, 2008 wherein applicant admitted his involvement in the offence of manufacturing of Anthralinic Acid.
4. After due investigation compliant was lodged under the provisions of the NDPS Act before the appropriate court, which was registered as Case Crime No.35 of 2008 under Sections 9-A and 25-A of the NDPS Act, Police Station NCB Delhi (Dhaulana), District Ghaziabad.
5. I have heard Sri F.A. Wani and Sri Preet Pal Singh Rathore, learned counsel appearing for the applicant and Sri Sanjay Kumar Singh, learned counsel appearing for the Narcotics Control Bureau.
6. Learned counsel for the applicant submits:
Anthralinic Acid is a controlled substance defined under Section 2 (viid) of the NDPS Act. Section 9-A of the Act confers the power on the Central Government to control and regulate the production, manufacturing, sale, supply etc. of controlled substances. The Central Government has issued the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993 (hereinafter referred to as RCS Order 1993). Clause 3 of RCS Order 1993 provides that every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance is required to maintain daily accounts of his activities in Form 1 or Form 2, as the case may be and such records or activities are to be preserved for a period of two years. The same is quoted hereunder :-
” Clause 3. Manufacture, distribution, sale, imports, exports and consumption of controlled substance — (1) Every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintain daily accounts of his activities in Form 1 or Form 2, as the case may be. The records of his activity shall be preserved for a period of two years from the date of last entry in the register.

(2) He shall report to the Director General, Narcotics Control Bureau, Wing No.-5,West Block – I, R.K. Puram, New Delhi – 110 066 immediately regarding any loss or disappearance of the controlled substances under his control. A copy of the report shall also be endorsed to the Zonal Director of the Narcotics Control Bureau within whose area of jurisdiction such loss or disappearance occurred.”

The applicant has maintained the daily accounts in Form 1 and 2 and as such there is no violation of RCS Order 1993.
7. In reply learned counsel for the NCB submits:
Section 25-A of the NDPS Act provides for punishment for contravention of the orders issued under Section 9-A of the NDPS Act. Clause 7 of the RCS Order 1993 requires filing of returns. According to it every person mentioned in clause 3 is required to send quarterly returns by registered post in Form 4 and Form 5 to the authority defined therein. The same is quoted hereunder:
“Clause 7. Filing of returns — (1) Every person mentioned in clause 3 of this Order shall send quarterly return by registered post in Form 4 or Form 5, as the case may be, to the concerned Deputy Director, Narcotics Control Bureau, whose address is given in the Form. The quarters of this purpose shall be January to March, April to June, July to September and October to December. The return shall be dispatched before the last day of the month following the quarter.

(2) Schools, Colleges, Universities, Government or autonomous institutions, Registered Scientific Societies and Hospitals using the controlled substance for educational scientific and analytical purposes are only exempted from maintaining records as prescribed under clause 3 and sending returns as prescribed under this clause. But they shall comply with other provisions of this Order.

(3) The persons who are to send quarterly returns under this clause shall intimate in Form No.4 or Form No.5, as the case may be, to the concerned Zonal Director, Narcotics Control Bureau, whose address is given in the Form upto the 15th day of May, 1993 regarding the opening balance of stock of the controlled substance possessed by him as on the 15th day of April, 1993. The first regular shall be sent for the period from 15th April, 1993 to 30th June, 1993.”

The applicant has failed to comply with the conditions mentioned in Clause 7 of the RCS Order 1993 by not filing the quarterly returns. There is violation of the same and as such the applicant is liable for punishment under Section 25-A of the NDPS Act.
In the first bail application all these pleas have been raised and have been considered as such no new ground warranting consideration of the second bail application is made out.
8. In rejoinder learned counsel for the applicant submits:
Clause 7 of the RCS Order 1993 does not apply for the reason that the applicant has only manufactured the Anthralinic Acid and has not made any sale nor has distributed nor has exported nor consumed the controlled substance as such he was not obliged under law to submit the return in Form 4 or Form 5.
The applicant has neither transported the controlled substance nor has made any sale nor has dispatched any consignment as such Clause 4, 5 and 6 of the RCS Order 1993 would not be applicable. Clause 7 thereof which comes after Clause 4, 5 and 6 also would not be applicable to the applicant.
9. Having considered the submissions advanced, it would be appropriate to first deal with the provisions as contained in the Act and the RCS Order 1993.
10. Controlled substance is defined in Clause (viid) which is quoted hereunder:
(viid) “Controlled substance” means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance;

Section 9-A of the NDPS Act confers power on the Central Government to control and regulate controlled substance, the same is reproduced hereunder.
“9-A. Power to control and regulate controlled substances
(1) If the Central Government is of the opinion that having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the power conferred by subsection (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import interstate, export interstate sale, purchase, consumption, use, storage distribution, disposal or acquisition of any controlled substance.”

Section 25-A defines the punishment for contravention of the Orders issued under Section 9-A of the NDPS Act as such same is also being reproduced:-
25-A. Punishment for contravention of orders made under Section 9-A :
If any person contravenes an order made under Section 9-A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees.”

Clause 3 and 7 of the RCS Order 1993 which are relevant have already been reproduced above.
Further the headings of the various forms is also quoted below :
FORM 1 : REGISTER OF MANUFACTURE OFCONTROLLED
SUBSTANCES.
FORM 2 : REGISTER OF CONSUMPTION, SALE, IMPORT OR
EXPORT OFCONTROLLED SUBSTANCE.
FORM 3 : CONSIGNMENT NOTE
FORM4 : QUARTERLY RETURN OF MANUFACTURE OF CONTROLLED SUBSTANCE
FORM 5 : QUARTERLY RETURN OF RECEIPT, IMPORT, SALE,
CONSUMPTION OR EXPORT OF CONTROLLED
SUBSTANCE
FORM 6 : QUARTERLY REPORT ON TRANSPORT OF
CONTROLLED SUBSTANCE TO A CONSIGNEE
OUTSIDE THE ZONE OF A CONSIGNOR

11. From a perusal of the complaint which has been filed as Annexure 3 to the affidavit filed in support of the bail application, the offence alleged against the applicant is in para 15 thereof which is quoted hereunder:
15.That from the above it is clear that the accused has committed offences punishable under section 9A and 25A of NDPS Act, 1985 as the accused had manufactured and transported Anthranilic acid a ‘Controlled Substance’ in violation of the provisions of NDPS Act and further did not file any return regarding this with NCB which is requirement of law and thus committed an offence punishable under the provisions of NDPS.

12. According to the above applicant failed to file any return with regard to manufacturing and transportation of Anthralinic Acid. It is admitted to the applicant that no return in Form 4 or Form 5 as required under Clause 7 of the RCS 1993 was ever filed.
13. The contention raised on behalf of the applicant with regard to para 15 of the complaint wherein it has been mentioned that the applicant had also transported Anthralinic Acid, which assertion is not substantiated by any evidence apparently no liability can be fixed upon the applicant to file return in Form 5.
14. From a reading of Clause 3 and 7 of the RCS 1993, it is apparent that every person who manufactures or distributes or sells or imports and exports or consumes any controlled substances is required to submit a quarterly return by registered post in Form 4 or Form 5. Admittedly the applicant has been manufacturing Anthralinic Acid. He was required to submit quarterly returns in Form 4, which undisputedly has not been filed. The applicant having failed to submit any return in Form 4, the violation of the RCS Order 1993 is apparent and as such the applicant committed an offence punishable under Section 25-A of the NDPS Act. The argument on behalf of the applicant therefore fails.
15. In that view of the matter, I do not find any new ground for entertaining the second bail application. The second bail application is accordingly rejected.
Order Date :- 10.5.2011

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