Punjab-Haryana High Court
Satish Bansal vs Narcotics Control Bureau Chandigarh on 3 July, 2015
CRM-3188 of 2015 in CRA-S-3306-SB-2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-3188 of 2015 in
CRA-S-3306-SB-2014
Date of Decision:03.07.2015
SATISH BANSAL ......Applicant
Vs
NCB CHANDIGARH .....Respondent
Present: Mr. A.S. Virk, Advocate,
for the applicant-appellant.
Mr. D.D. Sharma, Advocate
for NCB, Chandigarh.
*****
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
RAJ MOHAN SINGH, J.
1) Applicant-appellant seeks suspension of sentence during pendency of appeal.
2) Applicant-appellant was charge-sheeted under Section 228(1)(b) Cr.P.C. for the offences punishable under Section 25A read with Section 9A of NDPS Act, 1985 and clauses 4 and 10 of the Narcotic Drugs and Psychotropic Substance (Regulation of Control Substance) Order, 2013.
3) The edifice of prosecution version is that on 23.09.2013, specific information was received by Intelligence SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 2 Officer Sachin Guleria in respect of control delivery operation conducted by Narcotic Control Bureau in India and Australian Federal Police in Australia. Further possibility of recovery of huge ephedrine/pseudo-ephedrine or other narcotic contraband from the house of the applicant was alleged. The information was considered worth reliance and was reduced into writing. Superintendent, NCB, Chandigarh, constituted NCB team for search operation. The case against the appellant was that he had indulged in illegal export of ephedrine/pseudo-ephedrine to Australia by concealing and mixing the same in the bags of basmati rice sent from his firm Prince Overseas, Labhu Complex, Salarpur Road, Kurukshetra. Australian Federal Police in Melbourne had seized approximately 273 kgs ephedrine exported by the applicant in the bags of basmati rice. The team constituted by NCB, Chandigarh raided the house of the applicant and has allegedly recovered 2.600 kg of pseudo-ephedrine, a controlled substance as per notification dated 26.03.2013 of Government of India from a room of the house of the applicant.
4) The applicant-appellant was tried for the aforesaid offences by the Special Court, Kurukshetra and was convicted and sentenced to undergo RI for 8 years under Section 25A of NDPS Act along with fine of Rs.1 lac. In the event of default of payment of fine, the applicant shall further undergo period of simple imprisonment for 9 months.
SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 3
5) Learned counsel for the applicant-appellant contends that alleged recovery of 273 kgs of ephedrine to Australia is a subject matter of prosecution there. Only cognizance by the Court in India can be taken in respect of alleged recovery effected in pursuance to the information received by NCB, Chandigarh. According to notification dated 26.03.2013 issued by the Department of Revenue, Ministry of Finance and their salts are covered under Schedule A and Schedule B as controlled substance whose manufacture, distribution, sale, purchase, possession, storage, consumption and export are the subject matter of condition as specified in the notification. Ephedrine and pseudo-ephedrine are found at serial No.4 and 5 in Schedule A, whereas the same are found at serial No.4 and 16 in Schedule B of the notification.
6) According to appendix attached with the notification, area of jurisdiction of a Zonal Director of Narcotic Control Bureau is distinctively categorized area of Delhi, NCR and Haryana are placed under jurisdiction of Zonal Director, NCB, New Delhi, whereas area of State of Punjab, Himachal Pradesh and U.T., Chandigarh are placed under the jurisdiction of Zonal Director NCB, Chandigarh zone. Learned counsel by relying upon aforesaid appendix attached to notification dated 26.3.2013 states that the proceedings undertaken by Director, NCB, Chandigarh SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 4 zone are wholly without jurisdiction as the area of Kurukshetra was under the territorial jurisdiction of Zonal Director, NCB, Delhi.
7) Learned counsel states that ephedrine and pseudo- ephedrine are controlled substances and Section 37 of NDPS Act deals with controlled substance and there is no categorization of small quantity or commercial quantity therein. Therefore, concept of commercial quantity is applicable only in the offences under Section 19 or 24 or 27A as given in Section 37(1)(b) of NDPS Act. Concept of commercial quantity is applicable only to narcotic drugs and narcotic substance and not to controlled substance and therefore, Section 37(1)(b) of NDPS Act is not applicable in respect of controlled substance, as the one involved in the present case. For ready reference, Section 37(1)(b) of NDPS Act is reproduced as under:-
"37 (i) (b) No person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless ---
i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
ii) where the Public Prosecutor opposes 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."SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 5
8) Learned counsel for the petitioner relied upon Rafael Palafox Garcia versus Union of India and Another, 2009 Criminal Law Journal 446 (Bombay) to contend that concept of commercial quantity in view of Section 37(1)(b) of NDPS Act is not applicable in case of controlled substance under Sections 9A/25A/29 of the NDPS Act. The aforesaid case was a case for grant of bail during pendency of trial. Learned counsel further cited order dated 05.02.2015 passed by this Court in Criminal Misc. No.655 of 2015 in Crl. Appeal No.S-2518-SB-2014 (Surjit Singh versus State of Punjab), order dated 18.05.2015 passed in Crl. Misc. No.13404 of 2015 in Criminal Appeal No.S-550- SB-2015 (Vikram Singh @ Vicky versus State of Punjab), order dated 04.05.2015 passed in Criminal Misc. No.22962 of 2014 in Criminal Appeal No.S-2480 of 2014 (Ravinder Singh versus State of Punjab) and order dated 11.05.2015 passed in Criminal Misc. No.13467 of 2015 in Criminal Appeal No.S-2095-SB-2014 (Bagicha Singh versus State of Punjab) for suspension of sentence during pendency of appeal. On the other hand, learned counsel for the State contends that rigour of Section 37 (1)(b) of NDPS Act even if not applicable to the facts of the case, the same does not automatically lead to any conclusion that the applicant is entitled to suspension of sentence/bail. Section 37(2) of NDPS Act makes it clear that limitation on granting bail are in addition to the SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 6 limitations under Code of Criminal Procedure or any other law for the time being in force, therefore, realistic approach is required to be adopted while considering suspension of sentence in a case like the present one. Reference has been made to Karutham Ponniaya versus Senior Intelligence Officer, 2013 Volume 7 RCR Criminal Page 15 (Kerala), wherein, in case of ephedrine, bail was rejected. That was also a case of pending trial. Further learned counsel states that in view of Section 67 of NDPS Act, the confession under Section 67 of NDPS Act is sufficient to ignore contradiction in respect of timing of raid and the same is per se admissible.
9) Thirdly, it has been pointed out that in view of the observation made by this Court in Dalip Singh @ Deepa versus State of Punjab, 2010, Volume 2, RCR, Criminal 566, suspension of sentence during pendency of appeal can only be granted only on the ground of long pendency of appeal in the spirit of Article 21 of Constitution of India. For granting suspension of sentence, Court has to see the nature of offence, the manner in which offence has been committed, the role attributed to the applicant, the gravity or heinousness of the crime and cruel mode of its execution, other factors like antecedent behaviour of the applicant, propensity and potentiality of the accused etc.
10) Learned counsel for the petitioner in order to rebut the presumption under Section 67 of NDPS Act relies upon Tofan SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 7 Singh versus State of Tamil Nadu (2013) 16 SCC 31, to contend that whether conviction can be recorded solely on the basis of confessional statement under Section 67 of NDPS Act stands referred to larger bench by the Hon'ble Apex Court and the reference is pending.
11) I have heard arguments of both sides and have considered the material on record from prima facie view point. At this stage, it will not be proper to give any expression on merits of this case. Taking into totality of facts and circumstances, particularly in view of the fact that ephedrine and pseudo- ephedrine are controlled substance and the concept of commercial quantity is not applicable to such a recovery under Section 37(1)(b) of NDPS Act. Applicant-appellant is in custody and has undergone about one year, 9 months of actual sentence. Learned counsel states that the applicant has no such antecedent record of any such criminal activity. Appeal is of 2014 and may take some time and is not likely to be taken up for final disposal in near future. In view of aforesaid, I am of the view that applicant can be granted benefit of suspended sentence.
12) Learned counsel for the State relies upon statement of Richard C Moses, PW-12, Commander of Australian Federal Police who has deposed in the case. The complicity of applicant vis-à-vis the alleged recovery of contraband in Australia would be a debatable issue at the time of final arguments. SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document CRM-3188 of 2015 in CRA-S-3306-SB-2014 8
13) The remaining sentence of the applicant is ordered to be suspended subject to furnishing heavy bail bonds and surety bonds to the satisfaction of CJM, Kurukshetra. However, before release, the applicant shall inform the office of Narcotic Control Bureau about his address at which he intends to reside during the pendency of appeal. Any change in address shall be communicated to the office of NCB forthwith.
14) Nothing expressed hereinabove would be construed to be an observation on merits of the case. The facts have been recorded only for the consideration of prayer of bail and for suspension of sentence.
Disposed of.
(RAJ MOHAN SINGH) JUDGE July 03, 2015 SwarnjitS SWARNJIT SINGH 2015.07.03 17:22 I attest to the accuracy and authenticity of this document