Gujarat High Court
Rohit Madariya S/O Shri Vallabh Bhai ... vs State Of Gujarat on 10 October, 2023
NEUTRAL CITATION
R/CR.MA/14373/2023 ORDER DATED: 10/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 14373 of
2023
==========================================================
ROHIT MADARIYA S/O SHRI VALLABH BHAI MADARIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS. KETKI P JHA(9864) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 10/10/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with offence registered vide File No.F.No.NCB/ AZU/CR-09/2023 with the Narcotic Control Bureau, Zonal Unit, Ahmedabad for the offences under sections 8(C), 22(C), 23 read with Sections 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985.
2. It is the case of the prosecution that upon receiving specific information on 22.6.2023, the NCB Page 1 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined officials arranged a raid and during such raid, they recovered 500 kg TRAMADOL Powder by preparing the panchnama from Inland Container Depot, Sanand from a container bearing No.PONU00470066. Accordingly, the aforesaid offence came to be registered.
3. It appears that the respondent No.2 issued the notice under section 67(C) of the NDPS Act, 1985 to the applicant accused stating that there are reasonable grounds to question the applicant to ascertain facts and circumstances in relation to the present investigation and therefore, the applicant was directed to remain present before the respondent No.2 on 30.6.2023 at 11.00 am. The applicant accused came to be produced before the learned Magistrate on 2.7.2023. In the production report, it is stated that seized TRAMADOL powder was misdeclared as "SILDENAFIL MICRO GRANULES B.P. 90%" and was being attempted to be illegally smuggled out of India by the applicant accused in conspiracy with other known / unknown persons.
Page 2 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023
NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined
4. The applicant accused, thereafter, preferred Criminal Misc.Application No.2517 of 2023 before the learned trial Court which came to be dismissed vide order dated 19.7.2023 by the learned Special Judge (NDPS), 4 th Additional District & Sessions Judge, Ahmedabad (Rural) at Mirzapur.
5. Heard learned senior advocate Mr.Jal Unwalla assisted by Ms.Ketki Jha for the applicant accused, learned APP Mr.Dhawan Jayswal for the respondent No.1 - State and learned advocate Mr.Kartik Pandya for the Narcotic Control Bureau - respondent no.2.
6. Learned senior advocate Mr.Jal Unwalla has submitted that the applicant is a Director of M/s.Agonist Pharmaceuticals Private Limited which is holding a valid license for manufacturing and sale of upto 500 kgs of tramadol powder i.e. the exact weight of contraband which was seized by the respondent No.2. Mr.Unwalla has further Page 3 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined submitted that the applicant is merely a Director of the company i.e. M/s. Agonist Pharmaceuticals Private Limited situated at Kerala G.I.D.C., whereas the contraband was seized at Inland Container Depot, Sanand and the applicant accused was neither present nor aware regarding the transport of the contraband. Mr.Unwalla has further submitted that since there is a valid license with the company for manufacture and sale of 500 kgs of tramadol powder, the act of transporting tramadol powder instead of Sildenafil powder is at the best an inadvertent act but does not constitute any offence under the Narcotics, Drugs and Psychotropic Substances Act, 1985. Mr.Unwalla has further submitted that the applicant is a permanent resident of the address as mentioned in the cause title and is having deep roots in the society, the applicant is having movable as well as immovable properties and he is not likely to abscond or tamper with the evidence and or jump the bail. 6.1 Mr.Unwalla has further submitted that the applicant accused has remained present before the Page 4 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined investigating agency since the first instance when the summons was issued and has completely cooperated with the investigation. Mr.Unwalla has further submitted that the applicant has been falsely implicated in the present case and even if all the allegations in the FIR are considered in its entirety without any rebuttals, no case is made out against the applicant accused. Mr.Unwalla has further submitted that the conclusion of trial is likely to take a sufficiently long time. Mr.Unwalla has further submitted that the applicant has undergone a lengthy remand period and has completely cooperated with the investigation agency and is willing to comply with all the procedures established by law and will remain present as and when required. Lastly, Mr.Unwalla urges this Court to enlarge the applicant accused on regular bail. In support of his submissions, Mr.Unwalla has relied upon the decision of the Honourable Apex Court in the case of Balwinder Singh (Binda) Vs The Narcotics Control Bureau (Criminal Appeal No.1136 of 2014 dated September 22, 2023) as well as the decision of the coordinate bench of this Court in Criminal Misc. Application Page 5 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined No.17496 of 2020 dated 1.2.2021 and Criminal Misc. Application No.151 of 2021 dated 26.2.2021.
7. Learned advocate Mr.Kartik Pandya appearing for the respondent No.2 has vehemently opposed the bail application and submitted that there is sufficient material against the present applicant to deny him bail as the investigation in the matter is in very initial stages. The applicant accused came to be arrested on 01.07.2023 after he was found to have indulged in illegal trafficking and attempt to export a huge quantity of 500 Kilograms of Tradamol powder which was seized on 22.06.2023. Mr.Pandya has further submitted that though the applicant was holding the license, the validity of the same is yet to be ascertained and even if it is found to be valid, that does not permit the holder of the license to conceal/mis-declare the Tramadol Powder as some other medicine (Sildenafil Micro Granules 90% BP in this case) and there are multiple conditions to be adhered to while selling and transporting Tramadol Powder.
Page 6 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023
NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined 7.1 Mr.Pandya has further submitted that the applicant-accused was present during the panchnama proceedings at ICD Sanand on 22.06.2023 from where he was attempting to illegally export the said consignment to Democratic Republic of Congo and during the said panchnama proceedings, he himself has identified the drums in which he had mis-declared/concealed the said Tramadol Powder as Sildenafil Micro Granules 90% BP. Mr.Pandya has further drawn the attention of this Court that the applicant accused has revealed in his voluntary statement that another director of his company M/s.Agonist Pharmaceuticals Pvt. Ltd. i.e. Dhaval Kamani has actively and knowingly conspired in the aforesaid offence and he is on the run since the date of the seizure and a summons to record his statement has been sent to his available address. Mr.Pandya has further submitted that the investigation in the present matter is at the initial stage and a lot of incriminating documents/articles have been recovered/ seized and lot of angles are yet to be covered in the Page 7 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined investigation. If the applicant-accused is enlarged on bail, he will definitely try to tamper with the evidence which is yet to be collected or influence the witnesses which are yet to be examined in this case.
7.2 Mr.Pandya has further submitted that the applicant is facing very serious charges and it is a case of commercial quantity and therefore, the provisions u/s.37 of the N.D.P.S. Act are applicable in the present case and therefore, the present bail application is liable to be rejected. It has been categorically stated that accused of the offence under the N.D.P.S. Act should not be released on bail pending trial unless the mandatory conditions provided in section 37 are fulfilled i.e. there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely commit any offence while on bail. Mr.Pandya has further submitted that the offence committed by the accused is against society and prejudicial to the interest of general public, therefore, if the accused is enlarged on bail, there is every probability/likelihood of his Page 8 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined tampering with the prosecution evidence, hence, the accused deserves to be kept behind the bar and bail is not required to be granted. Moreover, the enlarging of accused on bail at this stage would encourage the offenders of the like nature. Mr.Pandya has further submitted that as it is not a simple case of drug trafficking but a case of large scale manufacturing of contraband and therefore, considering the totality of facts and circumstances as well as the materials available against the present applicant, he may not be enlarged on bail. In support of his submissions, learned advocate Mr.Pandya, has relied upon the judgment of Hon'ble Supreme Court in the case of Naroctics Control Bureau Vs. Mohit Aggarwal, reported in 2022 SCC Online SC 891 and requested this Court to reject the present application for regular bail.
8. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in regard to grant or refusal of bail under the provisions of Section 37 of NDPS Act. In the case of Union of India Vs Page 9 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined Niyazuddin Sk and another, reported in 2017 (4) Crimes 384 (SC), the Hon'ble Apex Court while setting aside the order of the High Court granting bail to the accused indicted for possessing commercial quantity of contraband without discussing the two mandatory conditions appearing in section 37of the Act viz; (1) the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence & (2) the person is not likely to commit any offence on bail, while rejecting bail, in paras 7, 8 & 9 of the judgment held as under:-
(7) Section 37 of NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said section. They are:-
(1) In the case of person accused of an offence punishable under section 19. (2) Under section
24. (3) Under Section 27A and (4) Of offences involving commercial quantity. The accusation in the present case is with regard to the fourth Page 10 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under section 37 of the NDPS Act, in case, the court proposes to grant bail to such person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr. PC or any other enactment, (1) the court must be satisfied that there is reasonable ground for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail.
(8) There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail.
(9) Hence, we are stratified that the matter needs to be considered afresh by the High Court. Impugned order is set aside and the matter is Page 11 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentious to the High Court.
9. In the case of Satpal Singh Vs The State of Punjab, reported in 2018 (5) Supreme 705, the Hon'ble Apex Court while rejecting bail to an accused indicted for the allegations of possession of commercial quantity of contraband in Head note C & para 15 of the judgment held as under:-
(c) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37, 22 and 29 - Instantly quantity of drug commercial - Order could not be passed by High Court u/s 438 or 439, Cr.PC without reference to section 37 and without entering a finding on the required level of satisfaction - Impugned order set aside.
15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Page 12 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21.09.2017 is only to be set aside and we do so.
10. Therefore, the decisions rendered by the Hon'ble Apex Court in Niyazuddin Sk's case & Satpal Singh's Case (supra) make the legal proposition abundantly clear and also settles the legal controversy at rest that in case of the accusations against accused regarding possession of commercial quantity of the contraband, the court has to render findings regarding, (i) the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence & (ii) the person is not likely to commit any offence on bail, and if these conditions Page 13 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined are not satisfied by the court, the accused is not entitled bail.
11. It is apt to mention here that the Hon'ble Apex Court in the case of N.C.B Vs Krishan Lal, reported in AIR 1991 S.C 588 held that unless conditions prescribed under section 37 of the NDPS Act are not fulfilled, the court has no discretion to relax these conditions in order to give the benefit of bail to an accused.
12. In the present case, as per the case of the prosecution, the respondent No.2 received specific information that a pharmaceutical company i.e. Agonist Pharmaceuticals Private Limited, Plot No.20, Somnath Industrial Estate, Kerala GIDC, Bavla - Bagodara Highway, Bavla, Ahmedabad are trying to export one product in around 400 drums which they have declared as 'SILDENAFIL MICRO GRANULES BP 90%. Such product is stuffed in a container bearing number PONU0047066 and is destined for Congo, Africa via ICD, Sanand. However, out of the 400 drums, 25 contain Tramadol, a psychotropic Page 14 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined substance in powder form and not the declared SILDENAFIL MICRO GRANULES BP 90%. In pursuance of this information, the officers of the respondent No.2 in the presence of the independent panch witnesses went to the office and called the applicant accused who is one of the Directors of M/s Agonist Pharmaceuticals Private Limited and Shri Ankit Patel and in their presence, inquired about the container bearing number PONU0047066 to which they were informed that the container is lying in the container yard. The door of the container was inspected and in the presence of the applicant and others, it was found that the door of the container was sealed with Maersk Shipping Line bottle seal bearing No.ML IN0797344 and the seal was opened and it was found that the container was stuffed with blue coloured HDPE drums which were unloaded from the container and on counting, they were found to be 399 in number. All the drums had stickers pasted on the drums which stated "Sildenafil Microgranules B.P. 90%, Batch No.AP138, MFG Date 06/2023, retest date 05/2026, Mfg.Lic.No.G/25/2307, Gross Wt. 27.00 kg, Net Wt. 25.00 Page 15 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined kg." Out of these 399 drums, randomly four drums bearing numbers 86, 95, 240 and 363 were chosen and opened after cutting the seal on their metallic neck and drum Nos.240 and 363 contained white coloured granular substance, whereas drum nos.86 and 95 contained off-white powder substance put in transparent bags and having a strong characteristic odour and colour. The randomly opened drums were inquired about and it was the present applicant accused who disclosed that the substance in drum Nos.86 and 95 is Tramadol, whereas other drums contained Sildenafil Microgranules B.P. 90%. Thereupon, it was found that drums from serial numbers 77 to 101 contained Tramadol and all these drums were misdeclared as Sildenafil Microgranules B.P. 90%. The entire panchnama was drawn up in the presence of the applicant accused and independent panch witnesses, as also other persons including Mr.Ankit Patel. During the investigation, it was found that 500 kgs of Tramadol which were found in drum Nos.77 to 101 were received by the applicant from EMMENNAR Pharmaceutical Private Limited and were Page 16 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined purchased to be sold to Mega Pharma Sarl in Bamaco Mali Africa but as the import permission letter for Tramadol powder was not received, it was kept in factory. That it was also found that there was no permission to receive Tramadol powder in Democratic Republic of Congo, but purchase order for 10,000 kgs of Sildenafil Microgranules B.P. 90% were received and 95000 kgs Sildenafil Microgranules B.P. 90% and 500 kgs Tramadol powder was to be sent in the container.
13. It can also be noticed that the prosecution has recovered contraband at the instance of the applicant accused and the prosecution has prima facie shown the full involvement of the applicant accused. It is apt to reiterate here that the contraband i.e. TRAMADOL seized from the factory premises is of commercial in nature weighing 500 kgs. It can be seen from the material made available to this Court that the applicant accused came to be arrested on 1.7.2023. The contraband i.e. TRAMADOL came to be seized from the factory premises on 22.6.2023. The investigation in the matter is at initial stage and the Page 17 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined chargesheet is not filed. It is the contention of learned senior advocate Mr.Unwalla that the applicant is holding the license but the validity of the same is yet to be ascertained and even if it is found to be valid, that does not permit the holder of the license to conceal/mis-declare the Tramadol Powder as some other medicine (Sildenafil Micro Granules 90% BP in this case) and there are multiple conditions to be adhered to while selling and transporting the Tramadol Powder. It can also be seen from the panchnama proceedings at ICD Sanand on 22.06.2023 from where the applicant was attempting to illegally export the said consignment to Democratic Republic of Congo and during the said panchnama proceedings, the applicant himself identified the drums in which he had mis-declared/concealed the said Tramadol Powder as Sildenafil Micro Granules 90% BP. It also appears that another director of the company M/s.Agonist Pharmaceuticals Pvt. Ltd. i.e. Dhaval Kamani who has actively conspired in the aforesaid offence is on the run since the date of the seizure and a summons to record his Page 18 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined statement has been sent to his available address. In the facts of the present case, this Court is of the considered opinion that there are reasonable grounds for believing that the applicant accused is guilty of the offence and there is possibility of the applicant accused commit a similar offence. Moreover, prima facie, it appears that if the applicant accused is enlarged on bail, he will try to tamper with the evidence which is yet to be collected or influence the witnesses which are yet to be examined in this case as the chargesheet has not yet been filed.
14 This Court has also considered the decisions relied upon by Mr.Unwalla in support of his submissions and is in agreement with the law laid down by the Hon'ble Apex Court in the decisions cited by the learned Senior Advocate for the applicant, but in the facts of the case on hand, the same are not applicable to the facts of the case. This Court has also considered the decision of Hon'ble Apex Court in the case of Naroctics Control Bureau Vs. Mohit Aggarwal (supra).
Page 19 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023
NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined
15. At the same time, this Court cannot lose sight of the fact that the menace of the crime of smuggling of contraband drugs is on increase and therefore, the perpetrators of the crime who are destroying society and the younger generations rendering them incapacitated by falling prey to drug abuse must be dealt with iron hands. The crime alleged against applicant accused is against society and by such criminal activities, the young generation of the country are destroyed. Such type of offences are to be dealt with severity and heavy hands and leniency in such matters would be a case of misplaced sympathy. The criminal act of the applicant/accused operating in a manner as one of the members of drug cartel manufacturing commercial quantity of contraband Alprazolam is destructive, and is aimed to destroy the social fiber of the country, therefore, curtailment of his liberty is reasonable. The granting of bail to the applicant accused would lead to the danger of the course of justice being thwarted. This Court, therefore, holds that this is a fittest case where discretion cannot be exercised in Page 20 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/14373/2023 ORDER DATED: 10/10/2023 undefined favour of the applicant accused, more particularly, when the investigation is at the initial stage and chargesheet is not yet filed.
16. In view of the above discussion and considering the decision of the Honourable Apex Court in the case of Narcotics Control Bureau Vs Mohit Aggarwal referred above and Section 37 of the NDPS Act, this Court does not see any reason to enlarge the present applicant on bail and therefore, the present application deserves to be dismissed and the same is dismissed. Accordingly, Rule is discharged.
(S. V. PINTO,J) H.M. PATHAN Page 21 of 21 Downloaded on : Tue Oct 10 20:53:15 IST 2023