Manipur High Court
Shri Bhadresh Kr. Patel vs The Union Of India Represented By The ... on 13 December, 2024
KHOIROM Digitally signed by
KHOIROM
BIPINCHAN Date: 2024.12.13SINGH
BIPINCHANDRA
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
DRA SINGH 16:56:12 +05'30'
BAIL APPLICATION NO. 16 OF 2024
Shri Bhadresh Kr. Patel, aged about 51 years, s/o
Subhashbhai Patel, R/o, 3-147 Patelfaliyua, Avakhal
- 2, Vadodara, Gujarat - 391250.
.... Petitioner
- Versus -
The Union of India represented by the Narcotics Control
Bureau (NCB), through its Intelligence Officer, Narcotics
Control Bureau (NCB), CPWD Quarters, Changangei
Kongba Uchekon, Imphal West, Manipur - 795008.
.... Respondent
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. T. Momo, Senior Advocate assisted by
Mr. Ph. Niranjoy, Advocate
For the respondent : Mr. W. Darakishwor, Senior Advocate
Date of hearing : 18.10.2024
Date of judgment &
order : 13.12.2024
Bail Appln. No. 16 of 2024 Page 1
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. T. Momo, learned senior counsel assisted by
Mr. Ph. Niranjoy, Advocate appearing for the petitioner and Mr. W.
Darakishwor, learned senior counsel appearing for the respondent.
[2] The present application has been filed under Section
439 of the Cr.P.C. 1973 read with Section 37 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 with the following prayer:
(i) To pass an order for enlarging the
petitioner/accused person on bail in connection
with the Special Trial Case No. 26 of 2023 with
reference to NCB Crime No. 02/NCB/Imp/2024
dated 03.03.2024 U/S 8(c) & 9A r/w S.21(c),
25A, 25 & 29 of the ND & PS Act, 1985, which is
pending before the Ld. Special Court (ND & PS),
Manipur.
(ii) To pass any further order or any appropriate
order/direction in the facts and circumstances of
the case.
[3] Brief facts of the present case are that the petitioner,
who is a father of 1(one) child and also taking care of his wife and
ailing mother aged about 77 years, is sole proprietor of M/s Recover
Healthcare Ltd. which is in operation since 2002 dealing in
pharmaceutical products and a resident of Vadodara Gujarat.
Bail Appln. No. 16 of 2024 Page 2
[4] The petitioner was arrested on 10.05.2023 by NCB
officer and formally arrest memo thereof was also issued to him.
Since then, he has been in judicial custody till date. On 03.07.2023,
in connection with the NCB Crime No. 02/NCB/Imp/2023 dt. 03-03-
2023 U/S 8(c) & 9A r/w S.21(c), 25A, 25 & 29 of the ND & PS Act,
1985, the I.O. of the case had submitted charge sheet before the
Special Judge (ND & PS), Imphal West, Manipur.
In the charge sheet, it has been alleged that the
petitioner supplied 1500 (one thousand and five hundred) packets of
Pseudoephedrine tablets; out of which, 533 (five hundred and thirty
three) packets were seized by the NCB team on 03.03.2023 from the
premises of Jangminthang Guite. He supplied the said tablets to
other accused namely, Abdul Wakil without any valid drug license
using fake authorization of Elite Medical Store, Aizawl, Mizoram in the
name of drug "Cetrizine HCL 10 mg (Levocet)"; for which, the
petitioner received a sum of Rs. 11.68 lakhs in his account at Bank of
Baroda. In connivance with other accused namely, Harshal Desai,
Director of Ardro Drugs Pvt. Ltd., Tapi, Gujarat, the petitioner
received a consignment of the said tablets in the brand name of
"Phifed" tablets and the bill was generated in the name of "Admos
SR" upon instructions of the said Abdul Wakil.
It was also alleged that during search of the office-cum-
godown of the petitioner on 09.05.2023, well prepared fake labels of
"Cetrizine HCL 10 mg" tablets manufactured by the Sunview Biotech
Bail Appln. No. 16 of 2024 Page 3
were recovered which were similar in nature found affixed onto the
seized 533 packets of Pseudoephidrine tablets by the NCB team on
03.03.2023 and the search-cum-seizure list was prepared on the
same day.
[5] The petitioner filed a case being Special Trial Case No.
26 of 2023 before the Special Judge (ND & PS), Imphal West,
Manipur at Lamphelpat. While pending the case for charge hearing
before the Court, since the petitioner had health issues/problems, he
had filed a bail application being Cril. Misc(B) Case No. 209 of 2023
(Ref. : S.T. Case No. 26 of 2023) before the same Court for releasing
on bail on medical ground. However, vide order dated 12.09.2023
(Annexure - A/3), the said bail application was rejected. The
operative portions of the order are extracted hereunder:
"10. Perused materials on record including the Search cum
Seizure list, statement of witness so far recorded, etc.
At this stage, there exists no such facts and
circumstances on record that are sufficient in
themselves to justify satisfaction that the accused is
not guilty of the alleged offences or no reasonable
grounds to believe that the accused is not guilty of the
said offences. There is also nothing to show that the
accused is not likely to commit any similar offence
while on bail.
11. In view of the above said health status report of the
accused, having regard to the relevant considerations
including seriousness of the alleged offences and the
stage of the case being at charge hearing, I am not
inclined to release the accused on bail.
12. Therefore, the application is rejected and stands
disposed of."
Bail Appln. No. 16 of 2024 Page 4
[6] Since the petitioner had continued to suffer from
multiple health issues/problems and the jail authority was unable to
provide proper medical attention to him, he had filed another bail
application being Cril. Misc.(B) Case No. 261 of 2023 (Ref.: S.T. Case
No. 26 of 2023) before the Ld. Special Judge (ND & PS), Manipur at
Lamphelpat praying for releasing him on bail(Annexure - A/4).
[7] Further, he had filed a case being Cril. Misc. Case No.
154 of 2023 (Ref.: Cril. Misc. (B) Case No. 261 of 2023 in S.T. Case
No. 26 of 2023) before the same Court with the prayer for releasing
him on bail pending trial of referred case, coupled with prayer for
calling medical report from the Superintendent, Manipur Central Jail,
Sajiwa(Annexure - A/5). Vide order dated 17.11.2023 (Annexure -
A/6),the Ld. Special Judge (ND & PS) passed the following order:
"As above, the S.P. Jail, Sajiwa is directed to get the
accused/petitioner medically examined and submit the health
status report on 22-11-2023.
Fix 22-11-2023 for report and hearing.
Send a copy of this order to the S.P., Manipur Central
Jail, Sajiwa.
Petitioner is to take steps."
As per the order dated 17.11.2023, the medical report
dated 22.11.2023 was filed before the Ld. Special Judge (ND & PS),
Manipur at Lamphelpat(Annexure - A/7).
[8] Vide order dated 07.12.2023 (Annexure - A/8), the Ld.
Special Judge (ND & PS), Manipur praying for releasing on bail
rejected the bail application being Cril. Misc.(B) Case No. 261 of 2023
Bail Appln. No. 16 of 2024 Page 5
(Ref.: S.T. Case No. 26 of 2023). The operative portions of the said
order are extracted as follows:
"8. On perusal of the materials on record, at this stage,
there exists no such facts and circumstances on record
that are sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged offences
or no reasonable grounds to believe that the accused
is not guilty of the said offences. There is also nothing
to show that the accused is not likely to commit any
similar offence while on bail.
9. In view of the above statement of said Dr. M. Amarjit
Singh, Medical Officer of MCJ, Sajiwa in c/w the health
status report of the accused, having regard to all the
relevant considerations including seriousness of the
alleged offences and the stage of the case, I am not
inclined to release the accused on bail.
10. The SP, Manipur Central Jail, Sajiwa is hereby
informed to provide all the necessary and proper
medical facilities (including MRI, Colonoscopy and
Endoscopy) to the accused at the earliest and submit
a report in this regard on or before 15/12/2023.
11. Therefore, the application for bail is rejected and
stands disposed of.
12. Copy of this order be sent to the S.P., Manipur Central
Jail Sajiwa for information and necessary steps."
As per the order dated 07.12.2023, the S.P., Manipur
Central Jail Sajiwa wrote a letter dated 14.12.2023 to the Ld. Special
Judge (ND & PS), Manipur mentioning that the medical report could
not be submitted timely since the medical investigation report done
in JNIMS have not been received by his office and therefore,
requested to submit the same on another date after receiving the
report from the JNIMS.
[9] However, the medical report has not been given to the
petitioner and no report has also been submitted before the Ld.
Special Judge (ND & PS), Manipur till date by the S.P., Manipur
Bail Appln. No. 16 of 2024 Page 6
Central Jail, Sajiwa. Accordingly, the present bail application has been
filed under the following grounds:
(i) The petitioner is under trial prisoner and his
detention in jail for an indefinite period violates Article
21 of the Constitution of India. Every person detained
or arrested in jail is entitled to get speedy trial. It is
settled law that bail is the rule and jail an exception and
that the refusal of bail is a restriction on the personal
liberty of the individual guaranteed under Article 21 of
the Constitution of India.
(ii) Detention of the petitioner in jail will not serve
any useful purpose as the investigating authority
already submitted the charge sheet before the Ld.
Special Judge (ND & PS), Manipur at Lamphelpat after
completion of the investigation and no charge has been
framed against the petitioner till date and the
proceedings of the present trial case has been
adjourned without framing of charges.
(iii) There is no prima facie case against the
petitioner from the evidence and the documents
produced by the prosecution.
(iv) Nothing incriminating or contraband has ever
been found from the premises of the petitioner. The
allegation in the charge sheet against the petitioner is
Bail Appln. No. 16 of 2024 Page 7
that during the search of the office-cum-godown of the
petitioner on 09.05.2023, the fake labels of "Citrazine
HCL 10 mg tablet" manufactured by the Sunview
Biotech was recovered which were similar in nature
found affixed onto the seized 533 packets of
Pseudoephidrine tablets by the NCB team on
03.03.2023. The said materials found and seized from
the house premises of Jangminthang Guite who is a
resident of Moreh, Manipur, which has no any nexus
with the petitioner, who is a resident of Gujarat.
(v) The petitioner has nothing to do with the alleged
offence in connection with the charge sheet of the Sp.
Trial (NDPS) Case No. 26 of 2023 and since the arrest
till date, the petitioner has been cooperating with the
I.O. of the case.
(vi) Since the material seized is neither narcotic drug
nor psychotropic substance, the classification of small
quantity, moderate quantity and commercial quantity
etc. would not be applicable to the present case.
(vii) The petitioner has many health issues/problems
and furthermore, he is the sole bread earner of his
family.
Bail Appln. No. 16 of 2024 Page 8
(viii) Even though the Ld. Special Judge (ND & PS),
Manipur vide order dated 07.12.2023 directed the S.P.,
Manipur Central Jail Sajiwa to provide the necessary
and proper medical facilities to the petitioner and
submit a medical report in that regard on or before
15.12.2023, no report has been submitted by the S.P.,
Manipur Central Jail Sajiwa till date.
(ix) The Ld. Special Judge (ND & PS), Manipur, vide
its order dated 07.12.2023, has not given any cogent
reasons for rejecting the bail application of the
petitioner. The said order is cryptic and is devoid of any
reasons for rejecting the bail application.
[10] Counter affidavit has been filed on behalf of the
respondent wherein grounds for rejection of the bail application have
been mentioned as follows:
i) The accused Md. Abdul Wakil came in contact
with Bhadresh Patel through his staff Anil Nayaka
through B2B business platform that is Tradeindia and
made a deal ofpurchasing 15 lakh tablets of
Pseudoephedrine Hydrochloride in the month of January
2023. On 19.01.2023 Bhadresh Kumar Patel received a
consignment of 15 lakh tablets (without label) in the
billing of Admos SR from M/s Ardor Drugs Pvt. Ltd which
is a manufacturer located at Vankhel, Songadh Ukai
road, Songadh, Gujarat by carrying one tempo driven by
Vipul Batt. Thereafter Bhadresh Patel directed Nitin Kr.
Panchal to receive the consignment on 19.01.2023 at
Bail Appln. No. 16 of 2024 Page 9
M/s Recover Healthcare godown in assistance with Anil
Bhai Nayaka and also instructed them to put the labeling
of Citrizine HCI (Levocet) tablets which actually
contained Pseudoephedrine tablets on each of the 1500
packets of loosed tablets in plastic packets for further
dispatched to Abdul Wakil.
ii) On the demand of Abdul Wakil, Bhadresh Kumar
has given 1500 packets of Pseudoephedrine tablets
weighing more than 300 kg of Pseudoephedrine tablets
in 26 cartoon boxes on 31.01.2023 which was booked in
Giri Cargo on Sanand road. Ahmedabad on 31.01.2023.
By showing them fake label of Triprolidine HCI tablets
(Colzen) as per plan and get it affixed on the
consignment of Pseudoephedrine tablets. However when
Abdul Wakil hinted Bhadresh Patel that it would be
difficult to transport the tablets in the name of
Pseudoephedrine tablets and as per suggestion of Abdul
Wakil, Bhadresh Patel arranged labels of such drugs
which do not contain Pseudoephedrine salt. Hence
Bradhesh Kumar Patel arranged from one Kalpan Modi
who runs a shop in the name of Intergraph at Sola
Bhuyang Dev. Ahmadabad to design labels of Cetrizine
Hydrochloride tablets 10 mg (Levocet) and later on
affixed on all the 1500 packets of Pseudoephedrine
tablets by two of M/s Recover Healthcare employees
namely Nitin Kr. Panchal and Anil Nayaka in the godown
of M/s Recover Healthcare own by Bhadresh Patel.
Further Abdul Wakil made a payment of Rs 11.68 lakh to
Bhadresh Patel's bank account no. 03320100399 of
Kalupur Commercial Co-op Bank Ltd. in between
27.01.2023 to 02.02.2023.
Bail Appln. No. 16 of 2024 Page 10
iii) Bhadresh Kumar Patel revealed that M/S Recover
Healthcare has received 1500 packets of Phifed tablets
which delivered by M/s Ardor Drugs Pvt. Ltd on the
billing of Admos SR on 19.01.2023 that was
manufactured by M/s Ardor Drugs Pvt. Ltd. owned by
the accused Harshal Desai who is working in
consultation with the accused Mehul Desai in supplying
the seized Pseudoephedrine and Tramadol based
pharmaceuticals tablets under different brand names
such as Phifed, Asifed, Admos SR ete and sold out more
than 1 crore Phifed tablets containing Pseudoephedrine
salt to M/S Recover Health care.
iv) Bhadresh Patel has also admitted in his
statement that Harshal Desai used to generate Tax
Invoices in the name of M/s Recover Healthcare but the
products mentioned in the Tax Invoices used to be
supplied to some other parties. Sometimes Harshal
Desai used to generate false bills with the name of some
other products for supply of Pseudoephedrine based
tablets to Bhadresh Patel to sell the said
Pseudoephedrine tablets. For the said purpose Harshal
Desai paid Rs. 10 lakh (i.e. @ Rs. I for 10 tabs of
pseudoephedrine) as commission to Bhadresh Patel,
which is reflected in the bank account statement of
Kalupur Commercial Co-operative Bank of M/s Recover
Healthcare own by Bhadresh Patel. Since Ardor Drugs
Pvt. Ltd., is a manufacturing company hence Rs 10 lakh
might have been credited to company's bank account
but here amount has been paid from the company's
bank account to M/s Recover Healthcare bank account
which is something not generally practice. Further
Bhadresh Patel and Harshal Desai also admitted the fact
Bail Appln. No. 16 of 2024 Page 11
that said Rs 10 lakh was commission paid to Bhadresh
Patel for generating fake bills/invoices in the name of
M/s Recover Healthcare. Here also in the present bail
petition, nothing proper justification has been given by
the petitioner.
v) The accused Abdul Wakil also corroborated in his
statement that he procured the consignment of 1500
packets of Pseudoephedrine tablets from M/s Recovery
Healthcare Ahmedabad through accused Bradesh Kumar
Patel in association with his other two staffs/employee of
M/S Recover Health Care namely Nitin Kr. Panchal and
Anil Bhai Nayaka.
vi) During investigation, CDRs of mobile number of
Bhadresh Patel/Abdul Wakil, Bhadresh Patel Anil Nayaka
and Bhadresh Patel/Harshal Desai were also analyzed
which clearly indicates that they were in regular touch
during the process of delivery of the consignment of
Pseudoephedrine tablets. (Copy of CDR analysis of
Bhadresh Patel has already been submitted at Final
Complaint dated 03.07.2023 of pages no. 363 and
additional/supplementary complaint dated 03.10.2023.
vii) During the search of the office/godown premises
of M/s Recover Healthcare in Ahmedabad, fake labels of
Levocet Cetrizine Hydrochloride 10 mg was recovered
and seized also. It is pertinent to mention that same
labels were also found on the seized 533 packets of
Pseudoephedrine tablets which clearly establish the
linkage of seized tablets with Bhadresh Patel and his
firm Recover Healthcare, Ahmedabad.
viii) During investigation it was also found that, it
was Bhadresh Patel who made the arrangement of stay
of Abdul Wakil when he reached to Ahmedabad in
Bail Appln. No. 16 of 2024 Page 12
January 2023 for the deal of Pseudoephedrine tablets.
All these facts have been corroborated in the statements
of his two of the staff Nitin Panchal and Anil Nayaka who
were also found indulged in the present crime along with
Bhadresh Patel.
ix) There is adequate piece of evidence available
with the prosecution which indicates the key role of
accused. There are still various facts which are to be
corroborated to ascertain the further linkage or the
source of the seized 110.5 kg of Pseudoephedrine
tablets, which will not be possible if the accused is
granted bail at this juncture.
x) The forensic examination report no.
CFSL(KR)/627/NAR/32/23 dated 26.10.2023 was
received from Guwahati which gave positive test or
result as given: Diacetyl morphine (heroine), Morphine-
3-acetate, 6- Monoacetylmorphine and Acetylcodein
have been detected in Exhibit-A and Pseudoephedrine
has been detected in Exhibit-B. (The chemical test report
has already been submitted in separate supplementary
petition dated 09.11.2023 through SPP, NCB). The
chemical test report has proven and completed the
prosecution justification that all the accused are involved
in illegal trade/business which also clearly indicates the
huge conspiracy made on the diversion of the
Pseudoephedrine tablets meant for trafficking and
manufacturing of Methamphetamine (ATS), a banned
drug.
xi Further proclamation issued against wanted
suspect namely, Ms. Sultani, Sh. Jaminthang Guite and
Ms. Hawlemneng Guite u/s 82 of the NDPS has been
published/flashed in local newspaper on 14.04.2024 and
Bail Appln. No. 16 of 2024 Page 13
15.04.2024 and accordingly the Special NDPS court,
Lamphel is taking up action in continuing with the trail
and proceeding of the case.
xii) The accused, in the present case, Harshal Desai
and Mehul Desai has been issued Detention Order under
PITNDPS Act by the Joint Secretary. Ministry of Finance
on dated 28.02.2024 and copy of the same served on
29.02.2024 and 01.03.2024 for engaging in illicit
trafficking of narcotics drugs & psychotropic substance
and confirmation order is awaited from the advisory
board.
[11] The learned senior counsel appearing for the petitioner
submits that rejoinder affidavit has been filed stating that the
allegations made in the final complaint (charge sheet) dated
03.07.2023 submitted before the Ld. Special Judge (NDPS) Court,
Manipur in Special Trial Case No. 26 of 2023 are yet to be proved
and the same is at the stage for charge hearing, which is pending
before the Ld. Special Judge (NDPS) Court, Manipur.
[12] Further, the learned senior counsel appearing for the
petitioner submits that there is no prima facie or reasonable ground
to believe that the accused had committed an offence from the
evidence and the documents produced by the prosecution. The
petitioner/accused person was arrested on 10-05-2023 and
thereafter,accused/petitioner was remanded into judicial custody by
an order of the Ld. Special Judge (ND&PS) Manipur. The
investigating officer submitted the final complaint (charge-sheet)
Bail Appln. No. 16 of 2024 Page 14
dated 03.07.2023 before Ld. Special Judge ND&PS, Manipur.
Therefore, the presence of the petitioner/accused person is no more
required for any further investigation of the case. The charge has not
been framed against the petitioner/accused person till date and the
proceedings of the present trial case has been adjourned without
framing of charges.
The petitioner/accused person is in the judicial
custody since 10-05-2023 till date and he has spent more than 13
(thirteen) months in judicial custody. The petitioner/accused person
is under trial prisoner and his detention in jail for an indefinite period
violates Article 21 of the Constitution of India.
Every person, detained or arrested is entitled to get
speedy trial. It is settled law that bail is the rule and jail an exception
and that the refusal of bail is a restriction on the personnel liberty of
the individualguaranteed under Article 21 of the Constitution. The
detention of the petitioner/accused Person in jail will not serve any
useful purpose as the investigating authority already submitted the
charge sheet before the Ld. Special Judge, ND&PS, Manipur. There is
no likelihood that the petitioner/accused person will abscond after
releasing him on bail as he has been co-operating with the I.O.
Moreover, there is no question of the petitioner/accused person
hampering or tempering with any prosecution evidence or threating
the witness after the petitioner/accused person is released on bail.
Bail Appln. No. 16 of 2024 Page 15
The material seized in the present case is
"Pseudoephedrine", which is a controlled substance within the
meaning of Section 2(viid) of the Act. It is neither a Narcotic Drugs
nor a Psychotropic substance as envisaged under Section 2(viia) of
the Act. Section 9A of the Act deals with controlled substance is
concerned, there is no categorization of small quantity or commercial
quantity. Therefore, the classification of small quantity, moderate
quantity and Commercial quantity etc. would not be applicable to the
present case. Hence, the bar of Section 37 of the NDPS is not
attracted in the present case.
[13] The accused through their counsel prays for discharging
the accused from the liability of the case during the course of charge
hearing. But, vide order dated 18.09.2024, the Ld. Special Judge (ND
& PS), Manipur rejected the prayers to discharge the accused
persons from the case and accordingly, charges were framed against
the accused after threadbare discussion and taking into consideration
of the facts and circumstance of the case and the involvement
therein of the accused. The case is registered as Special Trial Case
No. 26 of 2023. The relevant portion of the said order is extracted
herein below:
"15. Without going into a detailed discussion about the
merits of the case, in the light of the above decision of
the Hon'ble SC, I consider that at this stage, there
exist sufficient materials showing prima facie case for
proceeding against all the accused persons in the
case. Based on the materials on record, I find
sufficient basis for framing charge for the commission
of offence under Section 25/25 A and 21(c) of the
Bail Appln. No. 16 of 2024 Page 16
NDPS Act as against the accused No. 2 namely, Mrs.
Nemkhohat Guite and for the commission of offences
under Section 25 A/29 of the NDPS Act and Sections
465/487 IPC as against the accused No. 1, 3, 4 and
5o. 1, 3, 4 and 5 namely, Md. Abdul Wakil, Shri
Bhadresh Patel, Shri Nitin Kumar Panchal and Shri
Anilbhai Nayaka (29) respectively. Further, I find
sufficient basis for framing charge for the commission
of offence under Section 25 A/29 of the NDPS Act as
against the accused No. 6 and 7 namely, Shri Harshal
Desai and Shri Mehul Desai. The above said charges
are to be framed in separate sheets. Therefore,
prayers to discharge the accused persons from the
case are hereby rejected and the applications filed in
that regard also stand disposed of."
The roles of the applicant/accused above name are
extracted herein below:
(i) Bhadresh Patel supplied 1500 packets each
containing 1000 tablets of Pseudoephedrine out of
which 533 packets actually seized by the team of NCB
Imphal on 03.03.2023 from the premises of
Jangminghtang Guite.
(ii) Bhadresh Patel supplied the Pseudoephedrine
contents tablets to Abdul Wakil without having any drug
license or valid documents for which he accepted an
amount of Rs. 11.68 lakh in his Bank of Baroda account.
(iii) Bhadresh Patel in connivance with Harshal Desai,
Director of Ardro Drug Pvt. Ltd. Tapi, Gujarat received
the consignment of Pseudoephedrine tablets in the
name of Admos SR (A non NDPS content drug) on
receiving instruction from Abdul Wakil.
Bail Appln. No. 16 of 2024 Page 17
(iv) Bhadresh Patel got prepared fake labeling of
Cetrizone Hydrochloride tablets 10 mg (Levocet) and
facilitated Abdul Wakil in safe passage of huge
consignment of Pseudoephedrine tablets in the false
billing and sent through Giri Cargo, Ahmedabad for
further transportation to Delhi.
(v) On 18.01.2023 Bhadresh Patel called Videsh Bhai
Patel (One driver of his native of Awakhal, Vadodra)
and asked him to deliver 26 carton boxes from Ardor
Drug Pvt. Ltd., Dev Krupa Estate, Songadh-Ukai Road,
Tapi to M/s Recover Healthcare, Sarkhej, Ahmedabad.
Accordingly, the consignment of Phifed tablets in
the false billing of Admos SR transported from
manufacturing unit Tapi to Ahmedabad.
Bhadresh Patel made the design the fake lebels
of Cetrizone Hydrochloride tablets 10 mg (Levocet) from
one shop Intergraph at Sola Bhuyang Dev, Ahmedabad
which he further sent to M/s Vardhman Printers at
Vastrapur, Ahmedabad for final printing which were
later affixed on all the 1500 packets of Pseudoephedrine
tablets by his two of the employees namely Nitin Kr.
Panchal and Anil Nayaka in the godown of M/s Recover
Healthcare.
Bail Appln. No. 16 of 2024 Page 18
(vi) From analyzing the CDR of Abdul Wakil of his
mobile no. 9366428134 and Bhadresh Patel mobile no.
9377958152, it is clear that they were in touch with
each other and planning for the conspiracy.
(vii) During the search of office-cum-godown
premises of Bhadresh Patel on 09.05.2023, the fake
labels of Cetrizine HCL 10 mg (Levocet) tablets
manufactured by Sunview Biotech was recovered which
was similar in nature found affixed onto the seized 533
packets of tablets by NCB Imphal on 03.03.2023.
(viii) Bhadresh Patel supplied the huge quantity of
Pseudoephedrine tablets only on production of fake
authorization of Elite Medical Store Aizawl, Mizoram by
Abdul Wakil and that is also in garb of an another drug
namely Cetrizine HCL 10 mg (Levocet) of which he
himself got prepared the labels with the help of one
Kalpan Modi etc.
The submissions made by Mr. W. Darakishwror, learned
senior PCCG appearing for the respondent (NCB) made in the reply
affidavit are corroborated with the facts and circumstances of the
case set out in the charge sheet.
Bail Appln. No. 16 of 2024 Page 19
[14] The learned Special Judge (ND & PS), Manipur while
passing the impugned order dated 12.09.2023 and while rejecting
the bail application of the present petitioner/accused considered all
these facts i.e. the facts of the case and allegation made against the
present petitioner/accused as narrated above including the health
status report submitted by the Medical Officer, Manipur Central Jail,
Sajiwa.
[15] Mention is made herein that this Court vide order dated
10.04.2024, was pleased to grant an interim bail to the
petitioner/accused. Thereafter, the accused/petitioner had a
Gallbladder removal operation and as per this Court's order, after the
Gallbladder removal operation surrendered before the Sajiwa Jail.
Thereafter, there is no report of further deterioration of the
petitioner/accused while in jail.
[16] The learned senior counsel appearing for the petitioner
relied on the following judgments:
Dhirendra Prakash Saxena V. Directorate of
Revenue Intelligence [2023 SCC OnLine Del
2770 : (2023) 385 ELT 662] -
"34. Judgments relied upon by the learned Sr. SC
appearing on behalf of the DRI concern grant of bail in
relation to the satisfaction of the twin conditions contained
in Section 37 of the NDPS Act. As aforesaid, the position
that rigors of Section 37 will not applicable in a case where
in the recovery is that of a controlled substance has been
clarified by way of various judgments. In Niranjan
Jayantilal Shah (supra), while granting bail to the applicant
in a case where 100 kg Pseudoephedrine was recovered, a
coordinate bench of this Court took note of various other
decisions involving controlled substances and observed as
under:
Bail Appln. No. 16 of 2024 Page 20
"6. During the course of arguments, it was fairly
conceded by learned counsel for the respondent that
bar of Section 37 of the NDPS Act is not attracted in
the present case since as per the prosecution 100
kgs. of Pseudoephedrine was recovered which is a
controlled substance within the meaning of Section
2(vii)(b) of the Act. Pseudoephedrine is not a
narcotics drug as envisaged under Section 2(vii)(a)
of the Act. In N.C. Chellathambi (supra) recovery
was of 1600 liters of Acctic Anhydride, in Rajiv
Kumar @ Sukha (supra) recovery was of 25 kgs
powder ephedrine hydrochloride, in Faijay Ahmed
Rasool Shaikh (supra) and another recovery was of
290 kgs of pseudoephedrine, in Chakrapani Dutt
(supra) recovery was of 100 litres of Acctic
Anhydride, and inal these cases since the accused
had remained in custody for certain period, they
were released on bail."
Manoj Kumar V. Director of Revenue
Intelligence (Through Vikram Singh) [2015 SCC
OnLine Del 7830 : (2015) 219 DLT 112] -
"3. The submission of learned counsel for the petitioner
is that he was merely an employee of Rakesh Arora, the
co-accused, who was the kingpin. The petitioner was
merely acting on the instructions of his employer. Learned
counsel submits that Section 37 of the Narcotic Drugs and
Psychotropic Substances Act (NDPS Act) is not applicable
in the present case, since pseudoephedrine is not a
narcotic substance. He submits that the petitioner has
been in custody since the date of his arrest, i.e.
02.05.2013. Learned counsel submits that this Court in the
decision in Niranjan Jayantilal Shah v. Directorate of
Revenue Intelligence decided on 19.11.2013 (Bail Appl No.
1202/2013) had granted bail on the accused, where the
recovery of the same controlled substance had been made
of 100 kgs. This decision referred to had relied upon
several other earlier decisions of the Court, where recovery
of much larger quantities of controlled substance have
been made.
10. As noticed above, the petitioner has been in custody
for nearly 22 months. The decision rendered by this Court
in Niranjan Jayantilal Shah (supra) shows that in cases
where quantity of the controlled substance recovered was
even much larger, the Court had granted bail to the
accused considering the period for which they had granted
bail to the accused considering the period for which they
had remained in custody during the trial. Accordingly, the
present application is allowed."
Bail Appln. No. 16 of 2024 Page 21
Tinimo Efere Wowo V. State Govt. of NCT of
Delhi [2022 SCC OnLine Del 46] -
"11. Section 9A of the NDPS Act deals with the power to
control and regulate' controlled substance. "Controlled
substance" means any substance which the Central
Government may, having regard to the available
information as to its possible use in the production
manufacture of narcotic drugs or psychotropic substances
or to the provisions of any international Convention, by
notification be a controlled in the official Gazette, declare
substance. The Ministry of Finance Department of
Revenue vide its notification dated 28th December, 1999
has declared pseudo-ephedrine a controlled substance
under the Act. The Central Government being of the
opinion that having regard to the use of the controlled
substances in the production or manufacture of any
narcotic drug or psychotropic substance, it is necessary or
expedient so to do in the public interest, in exercise of
powers conferred by Section 9A of the Act has made the
Narcotic Drugs and Psychotropic Substances (Regulation
of Controlled Substance) Order, 1993, which has come
into force w.e.f. 15th April, 1993.
12. The substance alleged to have been recovered from
the petitioner/accused is 5 Kg. of pseudoephedrine which
is a controlled substance. It has been rightly submitted by
the Ld. counsel for the petitioner/accused that it is neither
a narcotic drug nor a psychotropic substance under the
NDPS Act. The alleged offences are not punishable with
death or imprisonment for her NDPS Art The ailing U/s 9A
r/w section 254 of the NDPS Act is punishable with
imprisonment which may extend to 10 year and also fine
which may also extend to imprisonment which may of
Section 37 is not attracted in the present case as the
substance recovered is a controlled substance within the
meaning of Section 2 (viid) of the Act.
18. The other recovery from the possession of the
petitioner is 15 gm. Cocaine which is also not a
commercial quantity, therefore, in the instant case, bar of
Section 37 of NDPS Act is not applicable. Though the
petitioner is a foreigner but as already observed
hereinabove and in view of the judgments "supra" there is
no bar to release a foreign national on bail in the given
facts and circumstances of this case. In the present case,
the petitioner is married to an Indian lady and having kids
with her. The factum of his marriage and kids has been
verified by the state and statements of the relatives of the
wife of the petitioner have already been recorded in this
Bail Appln. No. 16 of 2024 Page 22
regard. The petitioner is in J.C. since 16.02.2018 and the
final conclusion of the trial of this case is likely to take
long time. Therefore, the petitioner is admitted to bail on
his furnishing personal bond in the sum of Rs. 1,00,000/-
with two solvent sureties each of the like amount subject
to the satisfaction of the trial Court. Being released on
bail, the petitioner shall inform the IO of the case, the
address at which he will reside during, the period he is on
bail. Any change in the address shall also be
communicated to the 10 of the case within 2 days. The
petitioner shall report to the 10 of the case at police
station Crime Branch, Delhi every fortnight till the
conclusion of the trial. The petitioner shall not leave the
limits of NCT of Delhi without prior permission of the Trial
Court. With these directions, the application is disposed
of. "
Niranjan Jayantilal Shah V. Directorate of
Revenue Intelligence [2013 SCC OnLine 4608]
-
"4. Rebutting the submission of learned counsel for the respondent it was submitted by learned counsel for the petitioner that Rizwan Ahmad, relied upon by learned counsel for the respondent, does not help him, inasmuch as, in that case also recovery was of the controlled substance and therefore Section 37 of NDPS Act was not applicable, yet on that ground alone the application was dismissed. SLP was dismissed by a non- speaking order. In the subsequent case titled as Department of Customs v. Hemant Kumar 2012 [4] JCC [Narcotics] 178 it was observed that the judgment of Rizwan Ahmad is contrary to the explicit language of Section 37 of NDPS Act. The same is per incuriam. That being so, the said order does not come in the way of the petitioner for getting the relief of bail.
6. During the course of arguments, it was fairly conceded by learned counsel for the respondent that bar of Section 37 of the NDPS Act is not attracted in the present case since as per the prosecution 100 kgs. of Pseudoephedrine was recovered which is a controlled substance within the meaning of Section 2(vii) (b) of the Act. Pseudoephedrine is not a narcotics drug as envisaged under Section 2(vii)(a) of the Act. In N.C. Chellathambi (supra) one tonne of ephedrine was recovered, in Ajay Aggarwal (supra) recovery was of 1600 liters of Acctic Anhydride, in Rajiv Kumar Sukha (supra) recovery was of 25 kgs powder ephedrine hydrochloride, in Faiyaz Ahmed Rasool Shaikh (supra) and another recovery was of 290 Bail Appln. No. 16 of 2024 Page 23 kgs of pseudoephedrine, in Chakrapani Dutt (supra) recovery was of 100 liters of Acctic Anhydride, and in all these cases since the accused had remained in custody for certain period, they were released on bail. As regards Rizwan Ahmed, where the bail application was dismissed, it is fairly conceded by learned counsel for DRI that DRI had not taken any plea that the petitioner was not entitled to bail due to rigour of Section 37 of the NDPS Act on which ground alone the application was dismissed, however, it was submitted that since the SLP has been dismissed, therefore, the petitioner is not entitled for ball. In Department of Customs (supra) relled upon by learned counsel for the petitioner, it was observed that the judgment in Rizwan Ahmad is contrary to the explicit language of Section 37 of NDPS Act and the same is per incuriam."
[17] It is admitted position of fact and law that the seized articles as mentioned in the present case are controlled drugs as such, Section 37 of the ND & PS Act is not applicable and the accused/petitioner and his co-accused are right now languishing in jail for about one and half years, but considering the nature of the case, the prosecution have taken the steps leading to the filing of charge sheet promptly and the Ld. Trial Court also conducted the case promptly without wasting time.
[18] In the facts and circumstances of the case, considering the role of the present petitioner/accused in commission of the alleged crime set out in the case, this Court is of the view that the Ld. Special Court (ND & PS) rightly passed the impugned order and there is no room for interfering with the impugned order.
Accordingly, the present bail application filed by the accused/petitioner is rejected as devoid of merit. However, the liberty is given to the petitioner/accused to approach the Ld. Special Court Bail Appln. No. 16 of 2024 Page 24 wherein, the trial is going on, if the health condition of the accused/petitioner is deteriorating and if need arises for further treatment. The Ld. Trial Court is directed to complete trial of the case as soon as possible.
Accordingly, with the above finding and direction, this bail application is dismissed and disposed of.
JUDGE
FR/NFR
Bipin
Bail Appln. No. 16 of 2024 Page 25