Gujarat High Court
Abhijit Prabhakar Konduskar vs Department Of Revenue Intelligence & on 27 April, 2016
Author: Anant S.Dave
Bench: Anant S. Dave
R/CR.MA/17689/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 17689
of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
=============================================
==
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
=============================================
==
ABHIJIT PRABHAKAR KONDUSKAR....Applicant(s)
Versus
DEPARTMENT OF REVENUE INTELLIGENCE & 1....Respondent(s)
=============================================
==
Appearance:
MR DINESH TIWARI with MS.DILBUR CONTRACTOR, ADVOCATE for the
Applicant(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 1
MS MOXA THAKKAR ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
=============================================
==
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 27/04/2016
CAV JUDGMENT
1. This application for successive bail is preferred by the Page 1 of 20 HC-NIC Page 1 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT applicant, an accused of offence punishable under Sections 22, 23, 24, 25, 27A, 28, 29, 30 & 38 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") for which Sessions Case NO. 5of 2012 is in progress before the Special/Designated Court.
2. According to the applicant in earlier application for bail rejected by the designated Court, the High Court and the Apex Court and in view of certain observations made in order dated 25.10.2013 passed by Supreme Court of India in Special Leave Petition (Criminal) NO. 7717 of 2013 whereby directions were issued for expeditious trial and even opportunity was granted to the applicant to move for bail in the event of non-completion of trial within a period of one year. That trial is not over and accordingly, the applicant has invoked jurisdiction of this Court seeking bail on various grounds.
3. In short, as alleged consignment was seized on 3rd December, 2011 weighing about 37 kg and containing Methamphetamine and it was confirmed as per the report of the Directorate of Forensic Science (DFS) Gandhinagar, Gujarat and later on during course of investigation the DRI-respondent herein also seized batches of the chemical from the factory premises of the applicant at Sangli, Maharashtra. According to applicant report of DFS, Gandhinagar was not correct and accurate and, therefore, a prayer was made for re-testing the seized material to be made. Upon hearing arguments of both the sides namely the applicant and DRI on the point of re-testing an order was passed on 28.3.2012 whereby the application for re-
Page 2 of 20HC-NIC Page 2 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT testing was rejected. Subsequently another application was moved before the trial Court seeking directions from the Court for copy of the test report as relied on by the prosecution be furnished to the applicant relying on the provisions of Section 80 of NDPS Act read with Section 25 of Drugs and Cosmetics Act, which came to be opposed by the DRI and again as per order dated 20.4.2012 the above application was rejected mainly on the ground of pending investigation etc. Both the above order dated 28.3.2012 and 20.4.2012 were challenged before the High Court by filing Special Criminal Application No.1353 of 2012 which came to be dismissed as per order dated 11.5.2012. The above order was challenged before the Apex Court in Criminal Appeal No.1138 of 2012 which came to be disposed of on 20.8.2014 with a direction to the Supreme Court to consider the application for re-testing of seized material afresh. The applicant moved the trial Court seeking certain documents which were not submitted by the prosecution as required under Section 207 of Code of Criminal Procedure, 1973 and it came to be allowed.
3.1. The applicant produced reports of Haffkin Institution about seized material that it was not "Methamphetamine" as reported by DFS, Gandhinagar. The applicant also relied on a report prepared by Food and Drugs Administration, State of Maharashtra and contradictory findings about the material in question. On the strength of above contradictory report bail was sought for which came to be rejected and by filing Criminal Misc. Application No.1033 of 2013 in the High Court with a request of bail also came to be rejected on 5.7.2013 and findings of the Page 3 of 20 HC-NIC Page 3 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT trial were confirmed. Being aggrieved and dis-satisfied by the above order, Special Leave Petition before the Court being SLP (Criminal) No. 7717 of 2013 was preferred and liberty was reserved by the Apex Court vide order dated 25.10.2013 as observed earlier if the trial is not over within a year.
3.2. Thus, according to learned advocate for the applicant the trial is not proceeding in any normal course and even evidence-in-chief of PW-1 i.e. of complainant Mr. Meena has commenced and more that 50 to 60 witnesses are yet to be examined. That the applicant is in jail for about 4 ½ years pursuant to his arrest by DRI and now seized material from the applicant by respondent No.1 was sent for re-testing to the Central Forensic Science Laboratory, New Delhi and the report of re-test received on 2.1.2015 reveal that seized substance has tested positive for the presence of 'Mephedrone' and that is not 'Methamphetamine' and that 'Mephedrone' is not a prohibited drug and, therefore, the applicant is entitled for bail and other evidence cannot be appreciated by trial Court, for which, the applicant cannot be kept behind the bar. Learned advocate for the applicant has relied on extracts of reputed journal about analysis/test by various methods adopted by DFS Gandhinagar and equations of various components of seized materials and comparison is drawn with reports of laboratory of Food and Drugs Administration, State of Maharashtra, and it is submitted that the applicant deserves to be released on bail. It is emphatically submitted that statement under Section 67 recorded is not to be considered as an evidence and now Page 4 of 20 HC-NIC Page 4 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT re-testing of the seized material established that the substance is not 'Methamphetamine' and accordingly, now no material is available to connect the applicant with crime and trial is likely to be prolonged and, therefore, bail be granted to the applicant. It is further submitted that family of the applicant now lives in abject poverty and even factory and residential house both are sold and for maintaining the family in this circumstances, this Court may exercise power as prayed for.
3.3. Learned advocate for the applicant has referred to charge framed by learned Additional City Sessions Judge, Ahmedabad, and it is submitted that there is no involvement or connection of applicant with seizure of 10 packets of Ketamine Hydrochloride and it is submitted that any other proceedings he was granted bail by the competent Court.
3.4. Reference is made to certain paragraphs of complaint and affidavit-in-reply filed by respondent, by which, it is stated that the applicant is not guilty of the crime and that certain provisions of Drugs and Cosmetics Act, 1940 (for short "Act of 1940") read with provisions of Section 80 of NDPS Act and decision of the Apex Court and this Court relied on in support of submissions, the case of the applicant be considered accordingly.
3.5. Learned advocate for the applicant has relied on the decision in the case of Prahladbhai Ambalal Patel v. State of Gujarat and Anr. [1984 GLH 413], in which, the Court was concerned with the fact that after the report Page 5 of 20 HC-NIC Page 5 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT of public analyst gets superseded by the certificate of Director, Central Food Laboratory who also examines the part of sample of food article collected under relevant provisions of Act and in a case of any variance between the two reports, it was held that once there is supercession of the report of the public analyst by a superior certificate of the Director, earlier superseded reports can be effaced and excluded from the evidence. In the facts of this case, according to learned advocate for the applicant subsequent and later report of Central Food Laboratory revealing substance seizure as Mephedrone is to be believed for the purpose of grant of bail. That another decision in the case of Amery Pharmaceuticals and Anr. vs. State of Rajasthan (2001) 4 SCC 382 is relied on in the context of interpretation of Section 25(4) of Drugs and Cosmetics Act, 1940 and manufacturer cannot be denied the remedy of challenging the Government Analyst's report before the Court when accused in the case under Section 32-A of the Act, 1940 and it would be violative of right under Article 21 of the Constitution of India. Reliance is placed on the decision in the case of State of Gujarat vs. M/s. Alpin Industries, New Delhi and Ors. [2003 Cri LJ 329] about remedy indicated in sub-section (4) of Section 25 of the Act of 1940 by requesting the Court to send the portion of the sample to be tested at the Central Drugs Laboratory. Another decision in the case of Sami Ullaha v. Superintendent, Narcotic Central Bureau [(2008) 16 SCC 471] in the context of exercise of powers under Section 37 of NDPC Act, 1985 read with sections 437 and 439 of Code of Criminal Procedure, 1973 for grant of bail Page 6 of 20 HC-NIC Page 6 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT in a case where initially bail was granted, which came to be cancelled where report of the laboratory conducting the second test of seized sample contained 2.6% heroine (not commercial quantity). The Apex Court granted. The decision of learned Single Judge of Bombay High Court in the case of Plethico Pharmaceuticals and Ors. Vs. State of Maharashtra [(2002) 2 Mah LJ 444] that report singed by or under the authority of the Director of the Central Drugs Laboratory is conclusive evidence of the facts stated therein while considering Section 25 (4) of the Act of 1940.
3.6. Therefore, according to learned advocate for the applicant all the factors as above considered together entitles applicant of relief as prayed for.
4. As against above, Mr. Hriday Buch, learned advocate for DRI, respondent NO.1 who opposed application for bail with all vehemence and relied on the following facts leading to arrest of the applicant.
4.1. It is the case of the prosecution that the officers of Directorate of Revenue Intelligence (DRI), Ahmedabad, gathered information, that Shri Sujal Patel of M/s. Anshanu Exports and his employee Shri Babubhai Manibhai Sharma @Bakabhai are suspected to be involved in illegal exports/smuggling of Narcotic drugs and/or psychotropic substances by courier mode through Air Cargo Complex, Ahmedabad. The information gathered further indicated that some consignment of Narcotic drugs and/or Page 7 of 20 HC-NIC Page 7 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT psychotropic substances is scheduled to be sent to USA/UK by courier mode through Air Cargo Complex, Ahmedabad, on 03.12.2011. Based on the above, the officers of DRI, Ahmedabad examined the goods presented for export to U.K. and U.S. by M/s. Anshanu Exports, Ahmedabad at Air Cargo Complex, Ahmedabad. Examination of the courier parcels booked for UK by M/s Anshanu Exports, Ahmedabad resulted in recovery of 37 packets. Upon opening the said 37 packets, the officers found that each packet contained an inner aluminum foil package with sticker label containing the following markings:
· Kamud Drugs Pvt Ltd, · 1(4methylphenyl) 2methylaminopropan1one · Batch No.MAD1101.
· Gross wt.
· Tare wt.
· Net Wt.1.000 Kgs · Mfg. Date Nov2011 · Exp Date · Pouch No.10/37 · Storage Condition : Protect from Light · N6 & 8, MIDC, Kupwad Block, Sangli, 416 436, Maharashtra India, Ph:912332644097, 2645797 Fax: 912332644797, Email:[email protected], Web: www.Kamud.com Inside the silver foil pack was an inner plastic bag Page 8 of 20 HC-NIC Page 8 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT containing an odorless off white coloured crystals (small), which was other than the goods mentioned on the main packing of the said package i.e. Whole Wheat Atta, Maida, Washing Powder and Chakki Fresh Atta and these silver foil packages were concealed and camouflaged among the food packets. The officers suspected the said goods to be Narcotic Drugs and Psychotropic substances and samples, each of 10 gms., were drawn from each of the packets for getting the same tested to ascertain their exact nature.
4.2. In order to ascertain the veracity of the manufacturing details contained on the labels of the 37 packets of 'off white coloured crystalline substance' declared as 1( 4methylphenyl) 2methylaminopropan1one as per the request of the Directorate of Revenue Intelligence, Zonal Unit, Ahmedabad, the officers of Central Excise, Sangli, searched the premises of M/s.Kamud Drugs Pvt. Ltd., Sangli, under panchnama dated 4.12.2011. During the course of panchnama the officers found 431 kgs of the same item i.e 1( 4methylphenyl) 2methylaminopropan1one, pertaining to different batch numbers as detailed below :
Sr.No Batch Manufacturing Quantity
. Number Date
1 MAD 11001 Nov- 2011 401 kgs
2 MAC 10016 Mar- 2010 17 kgs
3 MAC 10018 Mar- 2010 06 kgs
Page 9 of 20
HC-NIC Page 9 of 20 Created On Thu Apr 28 03:01:29 IST 2016
R/CR.MA/17689/2014 CAV JUDGMENT
4 MAC 10021 Mar- 2010 02 kgs
5 MAC 10023 Mar- 2010 06 kgs
TOTAL 432 kgs
The above table clearly shows that out of the total seized quantity of 432 kgs, 401 Kgs. pertained to Batch No.MAD1 1001 with the date of manufacture as November, 2011. The entire quantity i.e. 432 Kgs. Of 1( 4methylphenyl) 2methylaminopropan1one were placed under seizure by the Central Excise officers of Sangli under a reasonable belief that the said item declared as 1( 4methylphenyl) 2methylaminopropan1one may be covered under narcotic drugs and psychotropic substances. The officers of Central Excise, Sangli drew representative samples under panchnama and placed the said goods under seizure.
4.3. The samples drawn from the 37 packets were forwarded for analysis to the Directorate of Forensic Science, Gandhinagar (DFS) and the DFS vide their test report letter DFS/NARCFOTICS/11/NC/82 dated 7.12.2011 has reported that the samples were prima facie suspected to be 'METHAMPHETAMINE HYDROCHLORIDE' and later on vide test report letter DFS/EE/2011/NC/82 dated 20.12.2011 and test report letter DFS/EE/2011/NC/84 dated 15.02.2012 confirmed that the samples drawn from the 37 packets tested positive for 'METHAMPHETAMINE HYDROCHLORIDE'. The DFS also confirmed that 'METHAMPHETAMINE HYDROCHLORIDE' was covered Page 10 of 20 HC-NIC Page 10 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT under the NDPS Act, 1985. The total value of the 37 kgs of seized material comes to Rs.37 Crores in the illicit international market.
The samples drawn by the officers of Central Excise, Sangli were forwarded to the Chemical Examiner, New Custom House, Mumbai for analysis of the same. The Chemical Examiner, New Custom House, Mumbai vide their report dated 21.12.2011 reported that :
".... each of the samples is hydrochloride salt of nitrogen bearing organic compound and gives the colour test for secondary amine. Methamphetamine and the product under reference (i.e.1( methylphenyl)2methylaminopropan1one) both contain secondary amines and given same colour test. Therefore only on the basis of colour test categorical opinion cannot be given. For exact identification, instrumentation analysis i.e. I.RSpectrophotometer is required, which is not available here."
With the above remarks, the remnant samples were returned by the Chemical Examiner, Custom House, Mumbai.
Accordingly, the second set of samples was forwarded to DFS, Gandhinagar for analysis. The DFS Gandhinagar vide their letter No.DFS/EF/2012/NC/02 dtd.04.02.2012 confirmed that, the samples tested positive for Page 11 of 20 HC-NIC Page 11 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT METHAMPHETAMINE HYDROCHLORIDE. The DFS also confirmed that METHAMPHETAMINE HYDROCHLORIDE was covered under NDPS Act, 1985. The total value of 432 kgs of METHAMPHETAMINE HYDROCHLORIDE comes to Rs.432.00 Crores approximately in the illicit international market.
4.4. Further, the officers of Central Excise during the course of Panchnama dated 04.12.2011 also seized a consignment of 81 kgs of Ketamine Hydrochloride from the premises of M/s Kamud Drugs Pvt. Limited having Central Excise Registration as AABCK1455BXD001 (a registered dealer under Central excise) for the purpose of further investigation. The said 81 kgs of Ketamine Hydrochloride pertained to the following batch numbers :
Sr. No. Batch Number Quantity
1 KHP 10001b 32 kgs
2 KP120911017 07 kgs
3 KP120914013 3 kg
4 KP121011002 1.8 kg
5 KP120914011 16 kg
6 KP120911020 17 kg
7 KP121914014 1 kg
8 KP121014001 1 kg
9 KP120914021 2.850 kg
TOTAL 81.65
Page 12 of 20
HC-NIC Page 12 of 20 Created On Thu Apr 28 03:01:29 IST 2016
R/CR.MA/17689/2014 CAV JUDGMENT
Investigations carried out revealed that the 81.650 kgs Ketamine Hydrochloride was actually manufactured by the manufacturing unit - M/s Kamud Drugs Pvt. Limited N6 & 8, M.I.D.C., Kupwad Block, Sangli416436, Maharashtra under the batch numbers mentioned in the above table.
4.5. During June2011 DRI, Mumbai had searched the premises of M/s Kamud Drugs Pvt. Limited in connection with the seizure of 200.6 kgs of Ketamine Hydrochloride seized from a Tata Sumo vehicle at Andheri(East), Mumbai being illegally diverted for being exported by way of mis declaration and concealment. During the course of search officers of DRI Mumbai had also recovered another consignment of about 826 kgs of Ketamine Hydrochloride contained in 32 drums from a farm house situated about 3 kms from the factory premises of M/s Kamud Drugs Pvt. Limited which was actually removed illegally from the factory premises of M/s Kamud Drugs Pvt. Limited and the said quantity was also placed under seizure by the officers of DRI, Mumbai.
4.6. Inquiries with the staff of M/s Kamud Drugs Pvt. Limited available at the factory premises during the course of Panchnama dated 04.12.2011 revealed that, consequent upon the above case, the FDI had cancelled licence No.SA20B/ 1447 Dt.23.05.2008 and SA21B/ 1418 Dt.23.05.2008 granted to M/s Kamud Drugs Pvt. Limited for manufacture of Ketamine and Ketamine Hydrochloride Page 13 of 20 HC-NIC Page 13 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT with effect from June2011 and after the cancellation of the licence, M/s Kamud Drugs Pvt. Limited had shifted the stock of 81.650 kgs of Ketamine Hydrochloride to the dealers premises situated adjacent to the manufacturing unit. As, the manufacturers possessed a history of illicit removal of the controlled substance Ketamine Hydrochloride i.e 81.650 kgs were placed under seizure by the officers of Central Excise, Sangli. It is noteworthy to mention that the officers of DRI, Ahmedabad had also recovered 06 kgs of 'White Coloured powder substance' from the courier parcels of M/s Anshanu Exports at Air Cargo Complex, Ahmedabad under Panchnama dated 0304/ 12/2011 along with the 37 kgs of 'offwhite crystals'. The chemical analysis report in respect of the said 'White Coloured powder substance' has declared the same as 'Ketamine Hydrochloride'.
4.7. The source of the said 06 kgs of Ketamine Hydrochloride seized by DRI, Ahmedabad was under
investigation therefore in order to investigate and confirm the probability of pilferage of the substance Ketamine Hydrochloride, the 81.650 kgs were placed under seizure by the officers of Central Excise, Sangli as per the directives of DRI, Zonal Unit, Ahmedabad."
4.8. In addition to above, during the course of investigation Tax Invoice No.257 dated 30.11.2011 issued by M/s. Kamud Drugs Pvt. Ltd., N-6 & 8, MIDC, Kupwad Page 14 of 20 HC-NIC Page 14 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT Block, Sangli 416 436, Maharashtra, India too M/s. Daksh Industries (A Division Daksh) 105, Shresata Complexes Gandhi Maidan, Patna:800 001, Bihar, with the description of the goods mentioned as '1-(4-methylphenyl)-2-
methylaminopropan-1-one, Batch No.MAD11001 Mfg.Date:
Nov-2011 and the no.& description of packings mentioned as One Fibre Drum (37 Kg. X 1 No.) Inner Packing 1 Kg x 37 Pouch, total quantity mentioned as 37.000 Kgs. At the rate of Rs.15,000 for a total amount of Rs.5,55,000/- was recovered from the office premises of Shri Sujal Vijaybhjai Patel of M/s. Anshanu Exports. These 37 packets were later on recovered by the officers of DRI concealed and camouflaged among the courier parcels booked by M/s.
Anshanu Exports. Ahmedabad through Air Cargo Comlex, Ahmedabad on 03.12,2011. Upon investigation by DRI, Patna it was unearthed that M/s. Daksh Industries (A Division Daksh) 105, Shresata Complexs Gandhi Maidan, Patna: 800 001, Bihar is a non-existent firm and the address 105, Shresata Complexes Gandhi Maidan, Patna:
800 001, Bihar was actually being used as a residence since last 3-4 years.
4.9. The applicant being Managing Director of M/s Kamud Drugs Pvt. Ltd., Sangli, from where above said 37 kgs of Methamphetamine Hydrochloride was removed, was interrogated and arrested on 17.12.2011 for offences committed under Section 8 (c) , 21, 22, 29 and 38 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Page 15 of 20 HC-NIC Page 15 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT and produced before the Hon'ble Chief Metropolitan Magistrate, Ahmedabad. The Hon'ble Court was pleased to remand the accused to judicial custody and the applicant is presently lodged in Central Jail, Sabarmati, Ahmedabad.
4.10.In addition to above, Mr.Hriday Buch, learned advocate for DRI has taken this Court to analysis of the contraband as per Forensic Science Laboratory, Gandhinagar and reproduction of the report in the complaint coupled with statement of co-accused and specific allegations against the applicant in paragraphs 28.2 to paragraphs 29 of the complaint filed by Intelligence Officer of DRI.
5. Having relied on the above allegations in the complaint against present applicant it is submitted that the applicant is involved in heinous crime of drug paddling and earlier bail application is rejected upto the Apex Court and delay if any in trial is solely attributable to the applicant and other co-accused, for which, no benefit could be granted to the applicant. It is submitted that as many as 16 applications were submitted either for regular, interim, temporary bail and at one stage even trial Court had observed that accused is trying to delay the trial by indulging into frequent applications devoid of merit and, therefore the application for bail is to be rejected.
Page 16 of 20HC-NIC Page 16 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT
6. So far as, report received from Central Forensic Laboratory, New Delhi, is concerned it is a case for the trial Court to appreciate the evidence in light of materials available against the accused and at this stage no clean chit can be given to the applicant. It is further submitted that Criminal Appeal No. 660 of 2007 decided by the Apex Court on 12.8.2014 along with other applications of co- accused it is held that NDPS Act, 1985 deals with a more specific clause of drugs and therefore a said law on the subject and it operates in addition to the provisions of Act of 1940.
7. Reliance is placed in a decision in the case of Neeru Yadav v. State of Uttar Pradesh & Anr. [AIR 2015 SC 3703] whereby accused, a history sheeter involved in number of crimes which are heinous in nature bail granted by the High Court came to be cancelled by the Apex Court.
8. Thus, it is submitted that simply because the accused has remained behind the bar for about 4 ½ years and that another report of Central Forensic Laboratory, New Delhi described substances seized by the DRI has no Methamphetamine it cannot be said that the applicant- accused is not involved in the crime where ample material is available for the progress to establish its case before the trial Court.
8.1. Thus, the application filed by the applicant deserves Page 17 of 20 HC-NIC Page 17 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT to be rejected.
8.2. Earlier, Criminal Misc. Application No. 10332 of 2013 was preferred by the applicant seeking bail which came to be rejected by oral order dated 5.7.2013 in all contentions were considered and rejected except availability of report from Central Forensic Science Laboratory (CFSL) which after analyzing substance in question submitted negative report for Methamphetamine and positive test for presence of Mephedrone.
9. Having heard learned advocates appearing for the parties and considering facts and circumstances of the case and decisions relied in support of respective arguments, I am of the view that involvement of the applicant in heinous crime under NDPS Act, for which, sufficient material exists for trial Court to appreciate in trial which is in progress. Various contentions raised on the basis of Drugs and Cosmetics Act, 1940, evidentiary value of reports of recognized and authorised Forensic Science Laboratory were also earlier fell into consideration. Decisions of the Apex Court and this Court relied on by learned advocate for the applicant about evidentially value of such reports are subject to appreciation as per provisions of the Evidence Act at the appropriate stage of trial. Simply because the applicant is in jail for about 4 ½ years is no ground for this Court to exercise the powers under Section 37 of the NDPS Act Page 18 of 20 HC-NIC Page 18 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT read with Section 439 of the Code of Criminal Procedure, 1973. No material exists for this Court to satisfy that there are reasonable grounds for believing that the applicant is not guilty of offence under NDPS Act, and that he is not likely to commit any offence while on bail., That involvement of the applicant in the offence involving commercial quantity, prima facie, stands established by the prosecution and it is not necessary at this stage to discuss merit of the subject in detail as the trial is in progress. However, from the seizure of contraband to be exported in a consignment scheduled to be sent to USA or UK by courier mode through Air Cargo through M/s. Anshanu Exports Ahmedabad on 3.10.2011 and search and seizure of the premise of M/s. Kumud Drugs Pvt. Ltd., Sangli, where the applicant is a Managing Director, report of the FSL, Gandhinagar vis-a-vis another report of Central Forensic Laboratory, New Delhi, will be in realm of appreciation of evidence by the trial Court in accordance with law, further, allegations levelled against the applicant in paragraphs 28.2, 28.3, 28.4, 28.5, 28.6, 29 and 29.1 which also include statement of the applicant recorded under Section 67 of NDPS Act, 1985, who accepted 37 Kgs contraband manufactured in the factory where the applicant was the Managing Director, a case is made out by the prosecution to reject this successive bail application in absence of any merit.
10. The decision relied on by learned advocate for the Page 19 of 20 HC-NIC Page 19 of 20 Created On Thu Apr 28 03:01:29 IST 2016 R/CR.MA/17689/2014 CAV JUDGMENT applicant in support of his submission as recorded in earlier paragraphs do not help the case of the applicant for the purpose of bail. No case is made out to exercise powers under Section 439 of the Code of Criminal Procedure, 1973 as prayed for.
11. Application is rejected.
(ANANT S.DAVE, J.) SMITA Page 20 of 20 HC-NIC Page 20 of 20 Created On Thu Apr 28 03:01:29 IST 2016