Gujarat High Court
Intelligence Officer vs State Of Gujarat & 2 on 5 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/14514/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
14514 of 2013
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INTELLIGENCE OFFICER....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS RV ACHARYA, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/01/2015
ORAL ORDER
1. By this application under Section 439(2) of the Code of Criminal Procedure, 1973, the applicant Intelligence Officer, Narcotics Control Bureau, Department of Internal Security, Ahmedabad prays for cancellation of bail granted in favour of the respondents Nos. 2 and 3 vide order dated 23 rd May, 2013 passed by the learned 3rd Additional Sessions Judge, Bharuch bearing C.R. No. 77 of 2013.
2. The learned Judge while releasing the accused persons on bail observed as under : "7. As per Notification S.O.1296 (E) dated 28th December, 1999 the ephedrine notified as N.D.P.S. Substance. The Notification is as under.
"S.O.1296(E) - Whereas the Central Government, Page 1 of 4 CRIMINAL MISC.APPLICATION/14514/2013 08/01/2015 12:14:01 AM R/CR.MA/14514/2013 ORDER having regard to the available information about the use of ephedrine and pseudoephedrine in the manufacture of certain amphetamines and metaphetamine decided to declare the same as controlled substances.
(2) Now, therefore, the Central Government in exercise of the powers conferred under clause (viia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), hereby declares Ephedrine and Pseudoephedrine and their salts as controlled substances for the purpose of the said clause".
8. In view of the above noted provision, I am of view that Ephedrine is a Narcotic substance.
9. Accused Umeshbhai Balvantbhai Pandya one of the accused of this offence has been released by the Hon'ble High Court of Gujarat vide order dated 18.01.2011 in C.M.A. No. 14910 of 2010. Wherein Hon'ble High Court of Gujarat observed that the Section 25 A of N.D.P.S. Act is not in purview of Section 37 of the N.D.P.S. Act and therefore Section 37 of the N.D.P.S. Act is applicable.
10. On perusal of the case papers and subject matter of the case, I prima facie find that the Ephedrine is a notified Narcotic substance, but not the Act, Hon'ble Apex Court in Petition No. 380/2013 held that the accused were found in possession of drugs that are mentioned in Schedule1 of the Act but not mentioned in the schedule to the Rules framed under the Act.
11. In view of Section37 of the N.D.P.S. Act 1985 the accused is involved in commercial quantity and involved in offences of Section 19, 24 and 27A shall not be released on bail.
12. The subsection(b)(ii) empowered Court to release on bail. The subsection(b)(ii) is as under. Subsection (b)(ii) of Section37. " Where the Public Prosecutor oppose the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."
13. Hence, in view of the above noted provision, the Court is satisfied. In such circumstances, the Court can exercise the power and use its discretionary power if it thinks fit to release on bail.
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CRIMINAL MISC.APPLICATION/14514/2013 08/01/2015 12:14:01 AM
R/CR.MA/14514/2013 ORDER
14. In the case on hand, the accused were manufacturing medicine and they were holding licence and licence is renewed for the period from 02.09.2008 to 01.09.2013. The Ephedrine is not included in commercial quantity, as per notification Section 9A and Section25 of the N.D.P.S. Act. The present case is also not covered U/s. 9A of the N.D.P.S. Act. In view of Notification and information produced by applicant, wherein it is disclosed that the ephedrine is Narcotic substance under the provision of Clause (viia) of Section 2 of the Narcotic Drugs and Phychotropic substance Act, 1985 and not under Section 9A of the Act.
15. Applicants/accused have dgiven assurance for complying condition of bail if any imposed by the Court.
16. In view of my above noted discussion and foregoing reasons, the disputed substance is not notified in second schedule. The applicant's case is not covered U/s. 19, 24 and 27A and therefore not covered U/s.37(b) of the N.D.P.S. Act. It transpires that the percentage of the ephedrine was not determined in any of the sample. Since last 31 month, though the charge sheet has been submitted, the trial is yet to be commenced and the charges are yet to be framed. Hence, in my view, there is no possibility of commencing the trial in near future days. Considering all these facts, I am of the view that the bail application is required to be allowed. In my view, this is a fit case to exercise the discretionary powers to enlarge the accused on bail. Hence, I am of the view that the accused are ordered to be released on bail. The accused/applicants are ordered to be released on bail in connection with the N.C.B. Case No.4/10 registered with Narcotics Control Bureau, Ahmedabad on their furnishing bond of Rs.1,00,000/(Rupees One Lacs Only) with one surety of like amount to the satisfaction of the Court and subject to following conditions.
3. The impugned order is also dated 23rd May, 2013. Almost one and half years has elapsed since the time the accused were ordered to be released on bail. The learned Judge has assigned cogent reasons while exercising discretion in favour of the accused persons. I do not find any basic infirmity in the Page 3 of 4 CRIMINAL MISC.APPLICATION/14514/2013 08/01/2015 12:14:01 AM R/CR.MA/14514/2013 ORDER order going to the root of the matter, warranting cancellation of bail
4. In that view of the matter, this application is rejected.
(J.B.PARDIWALA, J.) Manoj Page 4 of 4 CRIMINAL MISC.APPLICATION/14514/2013 08/01/2015 12:14:01 AM