Phenothiazine & Promethazine Covered Under Drugs & Cosmetics Act, Not Narcotic Or Psychotropic Substance: Patna High Court Suspends Sentence

The Patna High Court suspended the sentence of three men convicted under the NDPS Act, after noting that the substances that were seized from them appeared to be Phenothiazine and Promethazine which did not come within the ambit of any narcotic drug and psychotropic substances.

The three appellants had approached the high court seeking suspension of sentence of trial court order which had convicted under Section 21(c) (punishment for contravention in relation to manufactured drugs and preparations) NDPS Act and sentenced them to undergo imprisonment for 15 years with fine of Rs.1,50,000.

A division bench of Justice Mohit Kumar Shah and Justice Arun Kumar Jha in its order noted that the schedule attached to the NDPS Act provides a list of psychotropic substances, but this list did not contain either Phenothiazine or Promethazine, which were the alleged substances that had been seized.

The court also took note of Centre's 2001 notification which provided a table mentioning the names of narcotic drug and psychotropic substance and prescribing their small and commercial quantity. It however said that even this list did not contain either Phenothiazine or Promethazine. It however noted that the Drugs and Cosmetics Act mentioned the two substances wherein Promethazine was mentioned under 'Antihistaminic substances'.

The bench further noted that if any cognizable offence has been committed under Chapter IV of Drugs and Cosmetics Act, the police is not empowered to register an FIR. Referring to Supreme Court's decision in Union of India vs. Ashok Kumar Sharma and Ors.(2021) the bench said that it was held that for the offence under Chapter IV of the Drugs and Cosmetics Act, the Drug Inspector alone is authorized to register an FIR and arrest the offender. It thus said:

"The discussions made hereinbefore clearly shows that the seized articles which have been found to be Phenothiazine and Promethazine do not come within the ambit of any narcotic drug and psychotropic substances for the purposes of NDPS Act. Therefore, the judgment of conviction and order of sentence qua the appellants for possession of these two substances, prima facie, appears to be against the provisions of the NDPS Act and might not be sustainable, hence we find that the appellants have been able to make out a strong case in their favour for suspension of sentence and grant of bail to them during the pendency of their respective appeals. Therefore, we are inclined to suspend the sentence and release the appellants on bail during the pendency of their respective appeals".

Background

It was alleged that while the informant police officer had been on patrolling duty, he received a message from an SHO regarding three persons on two motorcycles going to a hotel on NH 83 for making delivery of consignment of Heroin.

When the informant reached the spot in front of the hotel started checking vehicles, he found three riders coming on two motorcycles, who were signaled to stop, but on seeing the police party they tried to take a U-turn and escape. When they were apprehended, appellants Dharmendra Kumar and Ravindra Kumar were found with a bag in between them whereas the appellant Vijay Kumar was found with a white plastic bag hanging from the handle of the motorcycle.

The appellants were served with notice under Section 50 of the NDPS Act and they had asked for their search before the Magistrate. As no person from public was willing to become witness to the search, two police constables were made witness of the search. It was alleged that from the motorcycle driven by Dharmendra Kumar and Ravindra Kumar 1.006 Kg of heroin like substance was recovered, whereas from the motorcycle driven by Vijay Kumar, 1.012 Kg of heroin like substance was recovered.

On testing the seized articles by DD Kit, prima facie evidence of contraband containing heroin was found.

The appellants argued that the substances seized were “Phenothiazine” and “Promethazine” which are neither narcotic drugs nor psychotropic substance under the NDPS Act. These substances are not covered under the Schedule appended with the NDPS Act wherein list of psychotropic substance have been provided. Also these two compounds have not been notified as narcotic drug and psychotropic substance by any government notification, rather they are compounds which are covered by Drugs and Cosmetics Act, 1940 and are having antihistamine and antipsychotic properties and are used in medicines. If at all there is any violation, the same would be punishable under Drugs and Cosmetics Act and not NDPS Act, the appellants said.

The State though conceded that the seized substances do not find mention in the list of psychotropic substances under the NDPS Act, but contended these substances are used as 'cutting agent' to enhance the potency. It was submitted that the expression “cutting agent” is used in forensic and narcotics parlance to denote a substance which is mixed with an illicit narcotic drug to achieve multiple results.

Some of these are to increase the bulk/ weight of the contraband so as to maximise illegal profit; to reduce the purity/ strength of the narcotic substance and thereby make it suitable for street-level sale; to modify, mimic or enhance the Pharmacological effect (such as sedation or euphoria) perceived by the consumer; and to mask the identity of the narcotic drug and to evade detection during preliminary screening.

It was submitted that the seized substances are capable of enhancing sedative effects and are used for dilution/adulteration and in the DD Kit testing, which is used for prima facie test, and a positive result for Heroin was found.

The court ordered the release of the appellants on bail during the pendency of their respective appeals, on furnishing bail bonds of Rs.10,000 and subject to certain conditions.

"It is made clear that the discussion hereinbefore has been made for the purpose of suspension of sentence of the appellants and their release on bail during the pendency of their respective appeals and their respective appeals would be taken up for consideration on the merit of their respective cases, without any prejudice being caused by the present order," the court added.

Case title: Vijay Kumar v/s The State of Bihar and batch

CRIMINAL APPEAL (DB) No.285 of 2025 and connected appeals

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