WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANI JAIPUR BENCH, JAIPUR

S.B. CIVIL WRIT PETITION NO. OF 2024

Rajasthan De-Addiction Society (R.D.S.), Registered Office D.M. Tower, Marudhar Colony, Near Nagnechi Temple, Bikaner, through its President Shri Suresh Kumar Parihar.

….Petitioner.

Versus.

1. The Union of India (Central Bureau of Narcotics), Jaipur.

2. The Directorate General of Health Services, Central Drugs Standard Control Organization, (FDC Division), Government of

India, FDA Bhawan, Kotla Road, New Delhi-110002. ….Respondents.

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

AND

IN THE MATTER OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION OF INDIA

AND

IN THE MATTER OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

AND

IN THE MATTER OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES RULES, 1985

AND

IN THE MATTER OF THE DRUGS AND COSMETICS ACT, 1940

AND

IN THE MATTER OF THE DRUGS AND COSMETICS RULES, 1945.

….

Writ petition against wrong application of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Narcotic Drugs and Psychotropic Substances Rules, 1985 to the registered medical practitioners specially the members of the petitioner Society and harassment of the Doctors including launching of criminal cases against them despite the fact that the medical practitioners do not commit any offence against the society by prescribing and dispensing the medicine called Buprenorphine for which they are duly authorized to prescribe and dispense to the patient for management of de- addiction.

….

To,

MAY IT PLEASE THIS HON’BLE COURT:

The petitioner, above named, most respectfully submits as under:-

1. That the petitioner is a Society registered under the Societies Registration Act, 1958. This Society has been established by group of Psychiatrists of Rajasthan with a key thought to “invent innovatively” the best training methods and pedagogies for developing necessary skill sets in de-addiction field of psychiatry to ensure that the learners must have adequate knowledge and skills at exit point, so that they can work ready and end best providing de-addiction services to the modern society. The petitioner Society has been formed for espousing cause of its members before various authorities and it is serving the cause of the society, which is the need of the time. The Society has around 100 registered members, all of whom are qualified medical practitioners i.e., Doctors and are serving the cause of the society in the field of de-addition of opiocd dependence. A list of its members is submitted herewith and marked as ANNEXURE-1. Shri Suresh Kumar Parihar, who is the

Hon’ble the Chief Justice & his other Hon’ble Companion Judges of the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur.

President of the Society has been authorized to file this writ petition on behalf of the Society. A photo stat copy of the resolution passed by the Society in this regard authorizing its President Shri Suresh Kumar Parihar to file this writ petition is submitted herewith and marked as ANNEXURE-2. Shri Suresh Kumar Parihar has been authorized to sign the papers and affidavit as also Vakalatnama on behalf of the Society for filing this writ petition. He has also been authorized to sign and file documents and affidavits, which may be required to be filed from time to time in this writ petition.

2. That the petitioner Society is aggrieved by illegal action of the respondents, specially the officers of the Central Bureau of Narcotics appointed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’), in the garb of the powers conferred by the NDPS Act and the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as ‘the NDPS Rules’) made there under by misusing the powers, although such powers are not to be exercised so far as Doctors are concerned. The result is that illegal raids are conducted at the Clinics and Hospitals of the Doctors, the records are seized, the Doctors are falsely implicated and embroiled in criminal cases and they have to face the ordeal of lengthy trial including arrest and police custody and judicial custody which results in spoiling not only their professional career, but their own life and the lives of their family members. Their image in the society is tarnished by the said illegal act of the respondents and such a great loss is caused to them, which is irreparable. It is well known that once a Doctor is falsely

implicated in the criminal case, it takes years to prove innocence in the criminal trial and then there is further higher Courts for further litigation and Doctors in place of serving the society are illegally dragged into litigation. The Doctors have to file bail applications and the provisions of the NDPS Act being stringent, getting bail is also not easy and Courts are also slow in granting bails under the NDPS Act. Therefore, to get an authoritative decision from this Hon’ble Court in respect of the Doctors under the NDPS Act, the petitioner Society is filing this writ petition, so that authoritative guidelines are laid down by this Hon’ble Court and the respondents are restrained from applying the NDPS Act illegally to the Doctors and harass them.

3. The NDPS Act.

The Parliament has enacted the NDPS Act to consolidate and amend the law relating to narcotic drugs. Amongst others the object of the Act is on the one hand to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for forfeiture of property, derived from, or used in illicit traffic in narcotic drugs and psychotropic substances and on the other hand to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances. The NDPS Act was enacted since many deficiencies were found in the existing laws like the penalties under the existing laws were not sufficiently deterrent to meet the challenge of well organized gangs of smugglers, problem of transit traffic of drugs coining mainly from neighboring countries.

3. Definitions:

Section 2 provides various definitions under the NDPS

Act and sub-section (ix) mentions 4 International Conventions, which are reproduced hereunder:-

(a)the Single Convention on Narcotic Drugs, 1961 adopted by the United Nations Conference at New York in March, 1961;

(b)the Protocol, amending the Convention mentioned in sub- clause (a), adopted by the United Nations Conference at Geneva in March, 1972;

(c) the Convention on Psychotropic Substances, 1971 adopted by the United Nations Conference at Vienna in February, 1971; and

(d)any other international convention, or protocol or other instrument amending an international convention, relating to narcotic drugs or psychotropic substances which may be ratified or acceded to by India after the commencement of this Act;

Section 2 (i) defines the word ‘addict’, which means a person who has dependence on any narcotic drug or psychotropic substance. Section 2 (vii-a) defines ‘commercial quantity’ and says that commercial quantity in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Section 2 (viii-a) defines ‘essential narcotic drug’ means a narcotic drug notified by the Central Government for medical and scientific use. Section 2 (xxiii-a) defines ‘small quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity

specified by the Central Government by notification in the Official Gazette. Section 7-A makes provision for National Fund for Control of Drug Abuse. Section 8, which is important makes provision for prohibition of certain operations and says that no person shall—(a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes.

It is relevant that the word ‘dispense’ has not been used in Section 8 meaning thereby that there is no prohibition in dispensation of the drug. In other words the registered medical practitioners have authority and power to prescribe and dispense the drug to the patients and it is not prohibited under Section 8. The Hon’ble Supreme Court in State of Uttaranchal Vs. Rajesh Kumar Gupta reported in 2007 (1) S.C.C. 355 has held that exception contained in Section 8 must be judged on the touch stone of (i) whether drugs are used for medical purposes and (ii) whether they come within the purview of regulatory provisions contained in Chapter VI and VII of the Rules of 1985.

4. Punishment:

Sections 22, 23, 24, 25, 25-A, 26, 27, 27-A, 27-B, 28

and 29 make provisions for various punishments under the NDPS Act, which are reproduced hereunder:-

“22. Punishment for contravention in relation to psychotropic substances.—Whoever, in contravention of any

provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

23. Punishment for illegal import into India, export from India or transshipment of narcotic drugs and psychotropic substances.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorization issued thereunder, imports into India or exports from India or transships any narcotic drug or psychotropic substance shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one

(c)

year, or with fine which may extend to ten thousand rupees,

or with both;

(b) where the contravention involves quantity lesser than

commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with a fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;

Provided that the court may, for reasons to be recorded in

the judgment, impose a fine exceeding two lakh rupees.

24. Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of Section 12.- Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorization of the Central Government or otherwise than in accordance with the conditions (if any) of such authorization granted under Section 12, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

25. Punishment for allowing premises, etc., to be used for commission of an offence.-Whoever, being the owner

or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.

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.

26. Punishment for certain acts by licensee or his servants.- If the holder of any licence, permit or authorization granted under this Act or any rule or order made thereunder or any person in his employ and acting on his behalf—

(a) omits, without any reasonable cause, to maintain accounts or to submit any return in accordance with the provisions of this Act, or any rule made thereunder;

(b) fails to produce without any reasonable cause such licence, permit or authorization on demand of any officer authorized by the Central Government or State Government in this behalf;

(c) keeps any accounts or makes any statement which is false or which he knows or has reason to believe to be incorrect; or

(d) willfully and knowingly does any act in breach of any of the conditions of licence, permit or authorization for which a penalty is not prescribed elsewhere in this Act,

he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

27. Punishment for consumption of any narcotic drug or psychotropic substance.- Whoever consumes any narcotic drug or psychotropic substance shall be punishable,-

(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both; and

(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.

27-A. Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viii-b) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

27-B. Punishment for contravention of Section 8-A.-

Whoever contravenes the provision of Section 8-A shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine.

28. Punishment for attempts to commit offences.—

Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.

29. Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which–

(a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required

to constitute it an offence punishable under this Chapter, if

committed within India.”

Section 25 reproduced above, which deals with punishment

for allowing premises etc. to be used for commission of an offence has been the subject matter of consideration of various Hon’ble Courts and in Pawan Mehta Vs. State reported in I.L.R. (2001) 2 Delhi 395 the Hon’ble Delhi High Court has held that it has to be proved that the premises or the vehicle was permitted to be used knowingly by such person. Section 32 makes provision for punishment for offence for which no punishment is provided. Section 37 says that notwithstanding anything contained in the Code of Criminal Procedure, 1973 every offence punishable under this Act shall be cognizable and non-bailable. Section 58 makes provision for punishment for vexatious entry, search, seizure or arrest, which is reproduced hereunder:-

“58. Punishment for vexatious entry, search, seizure or arrest.– (1) Any person empowered under Section 42 or Section 43 or Section 44 who—

(a) without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place;

(b)vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under this Act, or of seizing any document or other article liable to be seized under Section 42, Section 43 or Section 44; or

be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.

(2) Any person willfully and maliciously giving false information and so causing an arrest or a search being made under this Act shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.”

It is submitted that power of entry, search, seizure and arrest has been given by Sections 42, 43 and 44 of the NDPS Act. Chapter VI of the NDPS Act makes miscellaneous provisions and under this Chapterl Section 71 gives power to the Government to establish centres for identification, treatment, etc., of addicts and for supply of ;narcotic drugs and psychotropic substances. Section 71 is reproduced hereunder:-

“71. Power of Government to establish centres for identification, treatment, etc., of addicts and for supply of narcotic drugs and psychotropic substances.—(1) The Government may establish, recognize or approve as many centres as it thinks fit for identification, treatment, management, education, after-care, rehabilitation, social re- integration of addicts and for supply, subject to such conditions and in such manner as may be prescribed, by the concerned Government of any narcotic drugs and psychotropic substances to the addicts registered with the Government and to others where such supply is a medical necessity.

(2) The Government may make rules consistent with this Act providing for the establishment, appointment, maintenance, management and superintendence of, and for supply of narcotic drugs and psychotropic substances from, the centres referred to in sub-section (1) and for the appointment, training, powers, duties and persons employed in such centres.”

A perusal of this provision shows that Government has been given power to establish, recognise or approve as many centres as it thinks fit for identification, treatment, management, education, after-care, rehabilitation, social re-integration of addicts and for supply of any narcotic drugs and psychotropic substances to the addicts registered with the Government and to others where such supply is a medical necessity. It further says that the Government may make rules consistent with this Act providing for the establishment, appointment, maintenance, management and superintendence of, and for supply of narcotic drugs and psychotropic substances from the centres referred to in sub-section (1) and for the appointment, training, powers, duties and persons employed in such centres. Section 80, which is important says that the provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 or the rules made thereunder.

The Schedule attached to the NDPS Act contains list of psychotropic substances and Buprenorphine has been enlisted at Item No. 92. This Schedule is under Clause (xxiii) of Section 2 of the NDPS Act and is used for management of opioid dependenc/deaddiction.

5. The Narcotic Drugs & Psychotropic Substances Rules, 1985.

Rule 2 (hc) defines “medical institution” means a hospital, dispensary, clinic or an institution by whatever name called that offers services or facilities requiring diagnosis, treatment or care of illness, disease, injury, deformity or abnormality, established and administered or maintained by the Government or Municipal Corporation or Municipal Council or Zila Parishad or any person or body of persons.

Rule 2 (ib) defines “registered medical practitioner” means any person registered as a medical practitioner under the Indian Medical Council Act, 1956 or under any law for the registration of medical practitioner for the time being in force, or registered as a dentist under the Dentists Act, 1948 or under any law for the registration of dentists for the time being in force and has undergone training in pain relief and palliative care for prescription of essential narcotic drugs for pain relief and palliative care or training in opioid substitution therapy for prescription of essential narcotic drugs for treatment of opioid dependence.

Rule 52-N is relating to Recognized Medical Institutions and under this provision amongst others Medical Institution, with at least one registered medical practitioner possessing a minimum qualification of a degree in medicine or dentistry and who has undergone training in pain relief and palliative care for prescription of essential narcotic drugs for pain relief and palliative care or training in opioid substitution therapy

for prescription of essential narcotic drugs for treatment of opioid dependence, who shall prescribe and dispense essential narcotic drugs, shall be deemed to be a recognized medical institution under these rules for possessing, dispensing or selling of essential narcotic drugs for medical purpose.

Rules 65-A and 66 are also relevant, which are reproduced hereunder:-

“65-A. Sale, purchase, consumption or use of psychotropic substances,– No person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945:

Provided that sale, purchase, consumption or use of a psychotropic substance specified in Schedule I shall be only for the purposes mentioned in Chapter VII-A.

66. Possession, etc., of psychotropic substances.—

(1) No person shall possess any psychotropic substance for any of the purposes covered under 1945 rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules:

Provided that possession of a psychotropic substance specified in Schedule I shall be only for the purposes mentioned in Chapter VII-A.

(2) Notwithstanding anything contained in sub-rule (1), any research institution, or a hospital or dispensary maintained or supported by the Government or local body or by charity or voluntary subscription, which is not authorized to possess any

psychotropic substance under the 1945 Rules, or any person who is not so authorized under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person:

Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time:

Provided further that an individual may possess the quantity of exceeding one hundred dosage units at a time (but not exceeding three hundred dosage units at a time) for his personal long term medical use if specifically prescribed by a Registered Medical Practitioner.

(3) The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession.”

It will be seen from the above provisions that even a research institution which is not authorized under 1945 Rules may also possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirement or genuine medical requirement.

Rule 67-A (iii) provides that a narcotic drugs and psychotropic substances may be used for the purpose of de-addiction of drug

addicts by the Government or local body or by an approved charity or voluntary organization or by such other institution as may be approved by the Central Government.

Rule 67-A (b) further says that persons performing medical or scientific functions or the authority exercising the powers under sub-clause (iv) of clause (a) shall keep records concerning the acquisition of the substance and the details of their use in Form 7 of these rules and such records are to be preserved for at least two years.

6. The Drugs and Cosmetics Act, 1940:

That a Central Act namely The Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act of 1940’) has been enacted. Section 2 of this Act provides that this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 and any other law for the time being in force.

Section 3 (b) (i) defines “drug” to include all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes:

Section 27 provides for penalty for manufacture, sale, etc., of drugs in contravention of Chapter IV of this Act.

7. DRUGS AND Cosmetics Rules, 1945:

The Drugs and Cosmetics Rules, 1945 (hereinafter referred to as ‘the Rules of 1945’) have been framed by the

Central Government in exercise of the powers conferred by Sections 6 (2), 12, 33 and 33-N of the Act of 1940. Rule 2 (ee) defines “Registered medical practitioner” means a person—

(i) holding a qualification granted by an authority specified or notified under Section 3 of the Indian Medical Degrees Act, 1916, or specified in the Schedules to the Indian Medical Council Act, 1956; or

(ii) registered or eligible for registration in a medical register of a State meant for the registration of persons practicing the modern scientific system of medicine (excluding the Homoeopathic system of medicine); or

(iii) registered in a medical register (other than a register for the registration of Homoeopathic practitioners) of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practicing the modern scientific system of medicine for the purposes of this Act; or

(iv) registered or eligible for registration in the register of dentists for a State under the Dentists Act, 1948; or

(v) who is engaged in the practice of veterinary medicine

and who possesses qualifications approved by the State Government;

In Schedule H1 of the Rules of 1945 ‘Buprenorphine’

is a scheduled drug listed at No. 3. This Schedule H1 is under Rules 65 and 97.

Schedule K with reference to Rule 123 specifies Class of Drugs and extent and conditions of exemption.

A perusal of the above provision shows that a registered medical practitioner is authorized to supply drugs to his own patients and is authorized to supply the drug on the request of another. The drug specified in Schedule-C if it is specially prepared with reference to the condition and for the use of an individual patient provided the registered medical practitioner is not (a) keeping an open shop or (b) selling across the counter or (c) engaged in the importation, manufacture, distribution or sale of drugs in India to a degree which render him liable to the provisions of Chapter IV of the Act and the Rules made thereunder. Exemption from Chapter IV of the Rules have been provided above. Chapter IV of the Rules deals with the import and registration.

8. That the respondent No. 2 by its letter dated 28.03.2019 written to all States/UT Drugs Controllers authorized the supply of Buprenorphine to Psychiatrists, clinics and hospitals. Earlier the Drug was supplied only to De-Addiction Centres meaning thereby that Psychiatrists, clinics and hospitals which are run by the Psychiatrists are authorized to supply the drug Buprenorphine to the patients. A photo stat copy of this authorization letter dated 28.03.2019 is submitted herewith and marked as ANNEXURE-3.

9. That as per Study Report published by the United Nations Office on Drugs and Crime (UNODC) on the Opioid Substitution-Buprenorphine in India, the recommendations have been made that Oral Substitution with Buprenorphine should be scaled up in the country not only as a HIV risk reduction strategy

but also as a treatment modality for non-injecting opiate dependent patients as it is a safe and effective intervention and produces substantial improvement in the quality of life of the user. It has also been recommended that there is also need to explore other options of opioid substitution such as buprenorphine-naloxone and methadone. It is important that these recommendations have been made by UNODC in collaboration with the Ministry of Social Justice and Empowerment, Government of India and under the guidance and technical support from the All India Institute of Medical Sciences (AIIMS), India. An extract photo stat copy of the Report is submitted herewith and marked as ANNEXURE-4.

10. From the perusal of the above provisions, report and order of the Government it is now established that Buprenorphine drug is given to the patients, which results in reduction of the demand of Charas, Ganja, Cocaine etc. Doctors thus help in management of substance abuse by the addicts in India and, therefore, they cannot be treated as accused, because they dispense and supply this drug to the patients. The Doctors are rather helping the Government in combating the addiction problem in the country, but the respondent No. 1 by use of its authority in illegal manner is not only acting against the interest of the Government, but against the interest of the people and the society, which is not permissible and, therefore, the petitioner has been compelled to file this writ petition on the following grounds amongst others:-

A. That the Doctors are not involved in any illegal sale of controlled medicines. The Doctors being registered medical practitioners as defined in Rule 2 (ee) of the 1945 Rules, are duly authorized to purchase and sale Schedule H1 drugs (Buprenorphine) by Circular dated 28.03.2019 issued by the respondent No. 2. It is important here to mention that the Doctors are all Psychiatrists and run their Clinics and also run De-addiction Centres which help in process of Opioid Substitution Therapy.

B. That the Doctors purchase as well as sale/dispense all the medicines following all the necessary provisions of law. They keep all the valid bills and invoices and the same are accounted also from the manufacturer, however, the authorities of the respondents illegally harass the Docteors by conducting illegal search and seize the drugs for which the Doctors are legally authorized to supply and sale to the patients.

C. That the Doctors have full authority and permission to purchase and sale Schedule H1 drug mentioned above, as per Circular dated 28.03.2019 as also the provisions of the NDPS Act, the Rules made thereunder and the Drugs and Cosmetics Act and the Rules made thereunder and there is no limit of stock. However the respondents in the garb of the word ‘commercial quantity’ defined in Section 2 (vii) (a) unnecessarily harass the Doctors, arrest them and launch criminal

cases against them, although the Doctors do not commit any offence.

D. That the above drug, which is regulated under the NDPS Act and the Drugs and Cosmetics Act under which it is a Scheduled drug mentioned in Schedule H1, is regulated by Rule 65-A of the NDPS Rules.

E. That here it is apposite to point out that the Doctor has the last say in the quantity to be prescribed to the patient. Most of the Doctors on an average treat around 50 patients of substance abuse and particularly every patient is to be treated with different dosage, but on an average 40 tablets are administered to patient for single period of time i.e., total 2000 tablets are in usage at the clinic of the Doctor. Thus, it cannot be said that the Doctors possess the above drug in commercial quantity.

F. That the Doctors can be questioned only if they do not maintain the proper records in Form No. 7, but they cannot be held accountable for the quantity of the drug. In fact the respondents are harassing the Doctors at their fence, at their surmises and conjectures by misusing and misreading the provisions of the NDPS Act and the Drugs and Cosmetics Act and the Rules made thereunder.

G. That the action of the respondents is nothing, but a clear attempt to create havoc and unnecessary scare in

the psychiatry field. The Doctors, who are members of the Society, are all renowned and prestigious Doctors, well qualified and authorized to prescribe and dispense and sale the drug in question to their patients and there is no illegality, but just only on the surmises and suspicion and without following the provisions of Law and in contravention and ignorance of the Circular dated 28.03.2019 the Doctors are being harassed, humiliated without any cogent evidence and they are being embroiled in criminal cases. The result is that the Doctors have to face unwarranted lengthy criminal trial. They are dragged in the criminal proceedings without any offence having been committed by them and their career and life is spoiled, which is not only in violation of the NDPS Act, the Drugs and Cosmetics Act and the Circular dated 28.03.2019, but it is also in violation of the UNODC recommendations.

H. That the Doctors are in fact by providing the above scheduled drug in question helping the society and the object of the Government in curbing the addiction problem in the country. However, the respondents by their illegal act and by misusing the powers are acting against the very object of the Government and the society. By the respondents’ illegal acts the society is being put to harm and Government’s objects and targets are being defeated.

I. That the respondents’ actions, which are in contravention of the NDPS Act and the Drugs and Cosmetics Act are violative of the fundamental rights of the Doctors, who are before this Hon’ble Court. Article 21 of the Constitution of India enshrines right to life and personal liberty. This Article has been subject matter of interpretation of the Hon’ble Supreme Court as well as various Hon’ble High Courts of the country and it has been held in various judgments that right to life is not simple right to life, but a dignified human life. By illegal actions of the respondents, the Doctors, who are before this Hon’ble Court, their life is being ruined. Their image in the society in the eyes of their own people is being tarnished. They are being harassed financially, mentally, psychologically and physically. They are put behind the bars without any offence committed by them and they are compelled to face the ordeal of unnecessary criminal trial. They are restrained from serving the people. Their whole family is affected by the illegal act of the respondents and, therefore, it is necessary that this Hon’ble Court take cognizance of the whole situation and issue necessary guidelines and directions to the respondents.

J. That the respondents are in fact acting in an arbitrary manner, which is prohibited by Article 14 of the Constitution of India. The Doctors are not heard before arrest. At the initial stage the Doctors are not afforded

any opportunity to prove their innocence, which is not permissible.

K. That it is settled proposition of Law that the right to life and personal liberty cannot be taken away without following the procedure of Law. The procedure of Law includes correct application of Law also, but in the instant case the respondents do not adhere to the provisions of the NDPS Act and the Drugs and Cosmetics Act as also the UN recommendations and the Circular dated 28.03.2019, but blindly and in a routine manner the Doctors are booked like other normal criminals, which is not permissible.

L. That the petitioner craves leave of the Hon’ble Court to urge additional grounds at the time of hearing of the writ petition.

11.

efficacious alternative remedy except to approach this Hon’ble High Court under Article 226 of the Constitution of India.

12. That the petitioner has not filed any such writ petition previously in this matter either before this Hon’ble Court or before the Hon’ble Supreme Court of India.

That the petitioner has got no other equally

PRAYER

It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and;

(i) by an appropriate writ, order or direction the respondents may kindly be directed to adhere to and comply with the provisions of the NDPS Act and the Drugs and Cosmetics Act and the Circular dated 28.03.2019 as also the UN recommendations before taking any action against the Doctors and the respondents may kindly be directed to first ensure whether the Doctors have committed any offence punishable under the above Acts and thereafter only action is taken against them. The petitioner prays that detailed guidelines be issued to the respondents in this regard and the respondents may be directed to follow those guidelines before taking any action against the Doctors under the above Acts.

(ii) any other appropriate writ, order or direction, which this Hon’ble Court may deem just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner;

Notes:-

(iii) costs of the writ petition may kindly be awarded in favour of the petitioner.

1. No such writ petition in this matter has been filed by the petitioner earlier either before this Hon’ble Court or before the Hon’ble Supreme Court of India.

2. Notices, process fee and extra copies will be submitted within 3 days of the orders of this Hon’ble Court.

3. This writ petition has been typed by my private Steno appointed in my office.

4. This is S.B. Civil writ petition as vires of provisions of any Act are not under challenge in this writ petition.

5. Due to non-availability of pie papers readily, ledger papers have been used.

Jaipur, Dt/-

Humble petitioner, Through its counsel,

(Prahlad Singh) Advocate. Reg. No. 191/1983

(Gaurav Sharma) Advocate. R/3553/2021

COUNSEL FOR THE PETITIONER.