2025:HHC:36357 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 105 of 2023 Reserved on: 18.09.2025 Date of Decision: 31.10.2025. Intelligence Officer, Directorate of Revenue Intelligence (Regional Unit), SCO 258, 2nd Floor, Sector 44-C, Chandigarh. ...Petitioner/revisionist Versus M/s M. Sea Pharmaceuticals and others ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr Vijay K. Arora, Advocate with M/s Godawari, Hitansh Raj, Astha Kohli and Gaurav Kumar, Advocates. For the Respondents : Mr Ashok Kumar Tyagi, Advocate. Rakesh Kainthla, Judge The present revision is directed against the order dated 13.07.2022 passed by learned Sessions Judge, Sirmaur, District at Nahan (learned Trial Court) vide which the accused were discharged. (Parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:36357 same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that the complainant, Intelligence Officer of the Directorate of Revenue Intelligence (DRI), filed a complaint before the learned Trial Court for the commission of offences punishable under Sections 22, 27A, 29 and 38 of the Narcotic Drugs and Psychotropic Substances Act (in short, ND&PS Act). 3. It was asserted that the DRI, Delhi, Zonal Unit, New Delhi, registered a case against Maqdoom Firdosh, a U.S. national and Akshay Kumar for illegal procurement and export of medicines containing Controlled and Psychotropic Substances Act, along with nine other accused. Akshay Kumar made a statement under Section 67 of the ND&PS Act on 23.10.2011 that the tablets of Alprazolam were got manufactured by him from M/s M. Sea Pharmaceuticals, Paonta Sahib, for one Mr. (Doctor) Balbir Singh Bhogal. Akshay Kumar also disclosed that he had visited M/s M. Sea Pharmaceuticals, Paonta Sahib, many times. The DRI searched the factory premises of M/s M. Sea Pharmaceuticals on 29.10.2011 in the presence of two 3 2025:HHC:36357 independent witnesses and Anil Kumar Karn, the overall In- charge of the factory. 2 kgs of Diazepam powder were recovered. Anil Kumar revealed that the factory was sold in October 2010 by Sh. Lajpat Rai Sardana to Sh. R.K. Aggarwal and Ms Archana. His statement was recorded under Section 67 of the ND&PS Act, in which he stated that they were manufacturing various drugs under different generic names and included Controlled and Psychotropic Drugs like Alprazolam, Diazepam, and Pseudoephedrine, etc., after obtaining permission from the State Drugs Controller. The stock of Diazepam of about 2 kgs was available, but there was no stock of formulated medicine containing Controlled or Psychotropic Substance. Dr Ajay Panwar had placed an order for Tadlafil tablets, which was fulfilled by the factory. Dr Ajay Panwar or Akshay Kumar never visited the factory nor placed any order for the supply of any drugs. The samples were drawn from the Diazepam, which were sent for analysis to the Revenue Control Laboratory (RCL), New Delhi. The result of the analysis showed the characteristics of Diazepam. DRI recorded the statements of Lajpat Rai Sardana, Ashish Sardana, Krishnamurti Chandru, Dr. Ajay Panwar under Section 67 of the ND&PS Act and inspected the record. It was 4 2025:HHC:36357 found that there was a closing balance of 870 grams of Alprazolam on 25.12.2008. This closing balance was not carried forward, and the opening balance of Alprazolam was shown as nil on 30.01.2010. There was a shortage of 870 grams of Alprazolam, a Psychotropic Substance. Anil Kumar, Krishnamurti Chandru, Lajpat Rai Sardana and Ashish Sardana admitted the shortage of 870 grams of Alprazolam in their statements recorded under Section 67 of the NDPS Act. This amounted to an offence punishable under Sections 22, 27A and 29 of the NDPS Act. The psychotropic substance was illegally disposed of/removed. Therefore, it was prayed that the action be taken against the accused as per the law. 4. Learned Trial Court recorded the statements of Manish Kumar (CW1), Sanjeev Kumar Sharma (CW2), Santokh Singh (CW3), Anil Kumar (CW4), Krishnamurti Chandru (CW5), Ram Kumar (CW6), and Karan Gupta (CW7), who exhibited various documents. 5. The learned Trial Court held that, as per DRI, the closing stock of Alprazolam was shown as 870 grams on 25.12.2008, and the opening balance was shown as nil on 5 2025:HHC:36357 30.01.2010. The proprietor failed to explain the consumption or disposal of 870 grams of Alprazolam. These allegations, even if accepted to be correct, do not constitute the violation of any provision of the NDPS Act. There was nothing on record to show that Alprazolam was sold to any person. The factory was running under a valid drug license. Accused No.2 could not be held liable simply because he was the son of the owner of the company. No document showed that he was a Director, Manager, Secretary, or any other official of the company. Accused No.2 had left the company in March 2011. Accused Nos. 2 and 3 were also not joined as co-accused in the complaint filed against Akshay Kumar or Maqdoom Firdosh. The Court cannot act as a post office and frame the charges mechanically. The accused could not be charged in the absence of any material to connect them to the commission of the crime; hence, they were discharged by the learned Trial Court. 6. Being aggrieved by the order passed by the learned Trial Court, DRI has filed the present petition asserting that the complainant had established a prima facie case that the accused persons violated Sections 22, 27A, 29 and 38 of the NDPS Act. The discharge of the accused is very rare and should be resorted 6 2025:HHC:36357 to when there is insufficient material to connect the accused to the commission of a crime. Learned Trial Court erred in holding that no prima facie case is made out against the accused. It was not disputed that there was a shortage of 870 grams of Alprazolam. The missing quantity of Alprazolam was a commercial quantity, and the persons who were responsible for the missing Alprazolam were to be charged for the commission of an offence punishable under Section 22 of the NDPS Act. The drugs were found missing between 25.12.2008 to 30.01.2010. The learned Sessions Judge took the relevant date as 29.10.2011. The provisions of Section 35 of the NDPS Act were ignored. Akshay had specifically stated that he had visited the factory to get the tablets of Alprazolam manufactured, but the accused denied this fact, which shows their complicity. DRI never asserted that the accused had no license to manufacture Alprazolam. Its case was that Alprazolam was missing, and no satisfactory account was given by the accused. Hence, it was prayed that the present revision be allowed and the judgment passed by the learned Trial Court be set aside. 7. I have heard Mr Vijay K. Arora, learned Senior Counsel assisted by M/s Godavari, Hitansh Raj, Astha Kohli and 7 2025:HHC:36357 Gaurav Kumar, learned counsel for the petitioner and Mr Ashok Kumar Tyagi, learned counsel for the respondents/accused. 8. Mr Vijay Kumar Arora, learned Senior counsel for the complainant/appellant, submitted that the learned Trial Court erred in discharging the accused. It was duly proved on record that 870 grams of Alprazolam were missing. The accused failed to account for the same. This violated the provisions of the NDPS Act. Learned Trial Court did not appreciate this fact. Therefore, he prayed that the present revision be allowed and the order passed by the learned Trial Court be set aside. 9. Mr Ashok Kumar Tyagi, learned counsel for the respondents/accused, submitted that failure to maintain the record does not fall within the purview of Sections 22, 27A, 29 and 38 of the NDPS Act. Even if the allegations of the complainant are taken to be correct, no case for the violation of the NDPS Act is made out against the accused. Hence, he prayed that the present revision be dismissed. 10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8 2025:HHC:36357 11. It was laid down by the Hon’ble Supreme Court in Vishnu Kumar Shukla v. State of U.P., (2023) 15 SCC 502: 2023 SCC OnLine SC 1582 that the Court framing the charges has to see a prima facie case. It is impermissible to examine the material threadbare to determine whether the accused is likely to be convicted or not. It was observed: - “12. The primary consideration at the stage of framing of charge is the test of the existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion on the existence of factual ingredients constituting the offence alleged, and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to a conviction at the conclusion of the trial. 12. This position was reiterated in Yuvraj Laxmilal Kanther v. State of Maharashtra, 2025 SCC OnLine SC 520, wherein it was observed: 16. Section 227 CrPC deals with discharge. What Section 227 CrPC contemplates is that if, upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the judge 9 2025:HHC:36357 considers that there are no sufficient grounds for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. At the stage of consideration of discharge, the court is not required to undertake a threadbare analysis of the materials gathered by the prosecution. All that is required to be seen at this stage is that there are sufficient grounds to proceed against the accused. In other words, the materials should be sufficient to enable the court to initiate a criminal trial against the accused. It may be so that at the end of the trial, the accused may still be acquitted. At the stage of discharge, the court is only required to consider whether there are sufficient materials which can justify the launch of a criminal trial against the accused. By its very nature, a discharge is at a higher pedestal than an acquittal. Acquittal is at the end of the trial process, may be for a technicality or on the benefit of doubt, or the prosecution could not prove the charge against the accused; but when an accused is discharged, it means that there are no materials to justify the launch of a criminal trial against the accused. Once he is discharged, he is no longer an accused. 13. The present petition has to be adjudicated as per the parameters laid down by the Hon’ble Supreme Court. 14. The complaint was filed for the commission of offences punishable under Section 22, 27A, 29 and 30 of the ND&PS Act. Section 22 of the ND&PS Act reads as under:- “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- 10 2025:HHC:36357 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; (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.” 15. A bare perusal of the Section shows that the offender should have manufactured, possessed, sold, purchased, transported, imported/exported interstate or used any psychotropic substance in violation of the condition of the license or contravention of any provision of the Act. 16. It is not the case of DRI that the accused was manufacturing Alprazolam without a license; rather, it was 11 2025:HHC:36357 stated in the revision petition that the manufacturing was with a license. It was also not asserted in the complaint that the accused has sold or imported/exported interstate the Alprazolam. The case is simple that 870 grams of Alprazolam were shown in the record on 25.12.2008, and nil quantity of Alprazolam was shown on 30.01.2010. There was no accounting for Alprazolam. In the absence of any sale or transportation, import or export, the mere fact that the Alprazolam was missing and no entry regarding its consumption was made will not attract the provisions of Section 22 of the NDPS Act. 17. Section 27A of the ND&PS Act reads as under:- “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.” 18. This Section shows that a person should have financed directly or indirectly any of the activities specified in sub clause 1 (i), 2(v) of clause (vii)(b) of Section 2 of the Act, or 12 2025:HHC:36357 harbour any person. The complaint does not mention that the accused had financed the activities specified in Section 2 of the Act, or had harboured any person. Therefore, the complaint does not attract the provisions of Section 27A. 19. Section 29 provides for abetment and criminal conspiracy. DRI asserted that Akshay Kumar got manufactured tablets of Alprazolam from M/s M. Sea Pharmaceuticals, Paonta Sahib, for one Mr Balbir Singh Bhogal. Learned Trial Court rightly pointed out that the accused were not arrayed in the complaint filed against Maqdoom Firdosh or Akshay Kumar. Further, it was not asserted in the complaint that the accused had abetted the possession of drugs by Akshay Kumar or other persons. The whole case is built upon the fact that 870 grams of Alprazolam were found missing during the search, which does not attract Section 29 of the NDPS Act. 20. The admitted case of DRI is that M/s M. Sea Pharmaceuticals, Ponta Sahib, had a valid license to manufacture Alprazolam. Rule 46 of the NDPS Rules provides for the maintenance of accounts and submission of returns by the licensee. It reads as under:- 13 2025:HHC:36357 “46. Maintenance of accounts and submission of retums.-The licensee shall maintain true accounts of all transactions, including the accounts of materials used for the manufacture of the drug, the quantities manufactured, sold, or otherwise disposed of and furnish returns in such forms and in such manner as may be specified by the Narcotics Commissioner.” 21. Therefore, a licensee of the manufactured drugs is supposed to maintain true accounts of all transactions, including the accounts of material used for the manufacture of the drugs, the quantity manufactured, sold, or otherwise disposed of and furnish the returns. In the present case, the case of the accused would fall under this provision because the record regarding the consumption of Alprazolam was not maintained, and a return was not furnished. 22. Section 32 of the NDPS Act provides punishment for the offence for which no punishment has been provided and reads as under:- 32. Punishment for offence for which no punishment is provided.—Whoever contravenes any provision of this Act or any rule or order made, or any condition of any licence, permit or authorisation issued thereunder for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. 14 2025:HHC:36357 23. In the present case, learned Senior Counsel was unable to show any provision to punish a licensee for not maintaining the accounts, and the provisions of Section 32 of the NDPS Act will apply to the present case. 24. DRI asserted that Alprazolam was not entered between 25.12.2008 to 30.01.2010. It was required to file a complaint within one year under Section 468 (b) of the CrPC, but it filed the complaint on 05.04.2012 after the expiry of the limitation. Therefore, no action can be taken in the present matter. 25. Therefore, the order passed by the learned Trial Court discharging the accused is sustainable and no interference is required with it. 26. In view of the above, the present petition fails, and it is dismissed. The record of the learned Trial Court be returned with a copy of the order. (Rakesh Kainthla) Judge 31st October, 2025 (Nikita)