Gujarat High Court
Faiyaz vs Intelligence on 29 September, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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CR.MA/875/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 875 of 2011
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FAIYAZ
AHMED RASOOL SHAIKH - Applicant(s)
Versus
INTELLIGENCE
OFFICER & 1 - Respondent(s)
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Appearance :
MR
ANIL LALLA for MR SUNIL L MEHTA for Applicant(s) : 1,
MR PS
CHAMPANERI for Respondent(s) : 1,
MR AJ DESAI ADDL. PUBLIC
PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 18/02/2011
ORAL
ORDER
1. This application is preferred by the accused involved in commission of offence under Sections 9A read with section 25A, 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the N.D.P.S. Act") and it is submitted that the petition raises substantial question of law that in view of Section 77 of the Act, as to whether every rule, order or notification issued by the Central Government under Section 9A of N.D.P.S. Act is to be laid before each houses of Parliament and it is only after both the houses agree, pass and approve the notification, it shall have effect. It is further submitted that the substance 'ephedrine' used in the manufacture of certain 'amphetamines' and 'methamphetamine' and vide notification No. S.O. 1296(E) dated 28.12.1999 it is under "controlled substances". It is also submitted that ephedrine is not a Narcotic Drug or Psychotropic substance as defined under Section 2 (viia) and 2 (xxiii) of NDPS Act 1985. It is also submitted that the above substance is used in manufacturing of medicine and the punishment for the alleged manufacture and possession of 'ephedrine' provided under Section 25A is imprisonment for a term which may extend to 10 years and payment of fine which may extend to Rs. 1 lakh and such offence is out of rigor of Section 37 of N.D.P.S. Act. It is also submitted that so far as statement recorded of the accused or a co-accused under Section 67 of N.D.P.S. Act, 1985, it may have limited role at the stage of trial but even the said statement was also retracted later on and, therefore, when another co-accused who is similarly situated and have almost identical role is enlarged by this Court vide order dated 18.1.2011 passed in Cr.Ma. No.14910 of 2010, this Court may also enlarge the present accused on bail.
2. Mr. P.S. Champenari, learned Assistance Solicitor General and counsel appearing for the Narcotics Control Bureau (NCB) submits that the applicant herein cannot be said to have a similar role that of Mr. Umesh Pandya. The applicant herein in fact wanted to manufacture ephedrine and offered Rs.300/- per kg on production of ephedrine from raw material and that the raw material were to be provided by one Faiyaz Shaikh and the management of labour was also the responsibility of Faiyaz Shaikh, the applicant herein and further he had agreed to the offer as he was running in huge losses and Faiyyaz Shaikh handed over an amount of Rs. 2 lakh as advance for repair, maintenance of machinery and for process etc. and the above aspect cannot be said to be a role similarly to the co-accused who is enlarged on bail by Co-ordinate Bench of this Court. Learned counsel for NCB also submitted that under Section 35 of N.D.P.S. Act presumption is that the accused has committed crime unless he proves otherwise. Besides, with regard to provisions of Section 37 of the Act which may exclude controlled substance from the rigor of the provisions but at the same time it is submitted that discretionary jurisdiction of this Court in a case were huge quantity of ephedrine is seized and such quantity after manufacturing is to be supplied in a national and international market, it is further stated in a charge-sheet that it is punishable under Section 29 read with Section 9A and 25A of N.D.P.S. Act and, therefore, this Court would not like to exercise discretionary jurisdiction in favour of the applicant. It is also submitted that issuance of notification and requirement of placing it before both the houses of the Parliament and failure therein without admitting the above aspect ipso facto would not result into entitlement of bail when the facts reveal that personal search of Faiyaz Shaikh which was conducted in presence of a Gazetted Officer as provided under Section 50 of the Act resulted in recovery of various other things including the mobile phones which was used in commission of alleged crime.
3. Having heard learned counsel for the parties and considering the facts and circumstances of the case, I am of the opinion that the case of the applicant herein cannot be compared or put on par with the accused Mr. Umesh Pandya, who was enlarged on bail on prima facie consideration that role of Mr. Umesh Pandya was of locating the factory premises. As recorded in earlier paragraphs, Faiyaz Shaikh, the applicant herein is the main accused and prima facie notification in the crimes under Section 9A, 25A, 29 of N.D.P.S. Act is noticed in para 25 of the charge-sheet.
"that accordingly, Shri, Rasikbhai Dalsania interalia stated in his statement recorded on 27-10-2010 under Section 67 of the NDPS Act 1985 that his date of birth is 25.07.1964 and place of birth is Porbandar, Gujarat; that after completing his diploma in Civil Engineering in 1985 he did several jobs in private sector and in the year 1995 he estbalished his own factory at Plot No.618, GIDC, Panoli, Ankleshwar in the name of M/s. Mira Chemical producing silica precipitate; that later on in 2007 he changed name of his firm to M/s. Mira Organics Pvt. Ltd. producing bulk pharmaceuticals; that he further stated that in the year 2006 he came in contract with Umesh Pandya of Baroda in a matter of business; that he was running in huge loss in the mean time Umesh Pandya introduced one Faiyaz Shaikh who wanted to manufacture ephedrine and offered Rs.300/- per kg on production of ephedrine from raw material; that the raw materials were to be provided by Faiyaz Shaikh and the management of labour was also the responsibility of one Faiyaz Shaikh; that he further stated that he agreed to the offer as he was running in huge losses and Faiyyaz handed over an amount of Rs. 2 lakh as advance for repair, maintenance of machinery and for process; that during the recording of his statement al associates of Faiyaz including Fiayaz himself were brought before him whom he identified and has stated role of each associates in this offence and conspiracy; that after ascertaining his involvement he was arrested on 27.10.2010."
3.1. Further the statement recorded under Section 67 though retracted later on is an admissible peace of evidence and same can be considered at the stage of trial. That, issuance of notification sans requirement of Section 77 of the N.D.P.S. Act would not enure any benefit to the accused, since, punishment prescribed for the offence alleged is upto 10 years and with fine of Rs. 1 lakh. The result and consequential effect of manufacturing of such a controlled substance has wider amplification in the society and when prima facie the prosecution has established of conspiracy of producing, manufacturing, possessing and storing about 238.450 kgs of ephedrine a controlled substance, this Court is not precluded from considering the case of the applicant as per Section 37(2) of the Act which provides that limitations of granting bail specified in Clause (b) of Sub-section (1) are in addition to the limitation of grant of bail provided in Cr.P.C. 1973 and, therefore, even if provisions of Section 37(1) (b) is not applicable, limitations prescribed under Code of Criminal Procedure, 1973 are considered then also the accused is not entitled to the bail. I am of the view that no discretion can be shown in favour of the applicant herein. This application fails and is accordingly rejected. Rule discharged.
[ANANT S. DAVE, J.] //smita// Top