Gujarat High Court
Pramod Narhari Manjrekar vs State Of Gujarat & on 1 May, 2013
Author: Anant S.Dave
Bench: Anant S. Dave
PRAMOD NARHARI MANJREKAR....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/6042/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 6042 of 2013 ================================================================ PRAMOD NARHARI MANJREKAR....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MS. BHAVINI H JANI, ADVOCATE for the Applicant(s) No. 1 MS MD MEHTA APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/05/2013 ORAL ORDER
1. Rule.
Learned APP waives service of notice of rule on behalf of respondent State of Gujarat.
2. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 [for short, the Code ] in connection with File No.DRI/AZU/NDPS-01/2011 registered as NDPS Special Case No.5 of 2012 with the Directorare of Revenue Intelligence, Ahmedabad, for the offences punishable under Sections 8(c), 22, 23, 24, 25, 27A, 28, 29, 30 and 38 of the Narcotic Drugs & Psychotropic Substances Act, 1985 [for short, `NDPS Act ] read with Section 120B of the Indian Penal Code.
3. It is the case of the prosecution that the officers of Directorate of Revenue Intelligence (DRI), Ahmedabad, gathered information, that Shri Sujal Patel of M/s. Anshanu Exports and his employee Shri Babubhai Manibhai Sharma @Bakabhai are suspected to be involved in illegal exports/smuggling of Narcotic drugs and/or psychotropic substances by courier mode through Air Cargo Complex, Ahmedabad. The information gathered further indicated that some consignment of Narcotic drugs and/or psychotropic substances is scheduled to be sent to USA/UK by courier mode through Air Cargo Complex, Ahmedabad, on 03.12.2011. Based on the above, the officers of DRI, Ahmedabad examined the goods presented for export to U.K. and U.S. by M/s. Anshanu Exports, Ahmedabad at Air Cargo Complex, Ahmedabad. Examination of the courier parcels booked for UK by M/s Anshanu Exports, Ahmedabad resulted in recovery of 37 packets. Upon opening the said 37 packets, the officers found that each packet contained an inner aluminum foil package with sticker label containing the following markings:-
Kamud Drugs Pvt Ltd, 1-(4-methylphenyl)-2-methylaminopropan-1-one Batch No.MAD1101.
Gross wt.-----
Tare wt.------
Net Wt.1.000 Kgs Mfg.
Date Nov-2011 Exp Date -----
Pouch No.10/37 Storage Condition : Protect from Light N-6 & 8, MIDC, Kupwad Block, Sangli, 416 436, Maharashtra India, Ph:91-233-2644097, 2645797 Fax: 91-233-2644797, Email: [email protected], Web: www.Kamud.com Inside the silver foil pack was an inner plastic bag containing an odorless off white coloured crystals (small), which was other than the goods mentioned on the main packing of the said package i.e. Whole Wheat Atta, Maida, Washing Powder and Chakki Fresh Atta and these silver foil packages were concealed and camouflaged among the food packets. The officers suspected the said goods to be Narcotic Drugs and Psychotropic substances and samples, each of 10 gms., were drawn from each of the packets for getting the same tested to ascertain their exact nature.
3.1 In order to ascertain the veracity of the manufacturing details contained on the labels of the 37 packets of 'off white coloured crystalline substance' declared as 1-(4-methylphenyl)-2-methylaminopropan-1-one as per the request of the Directorate of Revenue Intelligence, Zonal Unit, Ahmedabad, the officers of Central Excise, Sangli, searched the premises of M/s.Kamud Drugs Pvt. Ltd., Sangli, under panchnama dated 4.12.2011.
During the course of panchnama the officers found 431 kgs of the same item i.e 1-(4-methylphenyl)-2-methylaminopropan-1-one, pertaining to different batch numbers as detailed below :
Sr.No. Batch Number Manufacturing Date Quantity 1 MAD 11001 Nov-2011 401 kgs 2 MAC 10016 Mar-2010 17 kgs 3 MAC 10018 Mar-2010 06 kgs 4 MAC 10021 Mar-2010 02 kgs 5 MAC 10023 Mar-2010 06 kgs TOTAL-432 kgs The above table clearly shows that out of the total seized quantity of 432 kgs, 401 Kgs. pertained to Batch No.MAD1 1001 with the date of manufacture as November, 2011. The entire quantity i.e. 432 Kgs. Of 1-(4-methylphenyl)-2-methylaminopropan-1-one were placed under seizure by the Central Excise officers of Sangli under a reasonable belief that the said item declared as 1-(4-methylphenyl)-2-methylaminopropan-1-one may be covered under narcotic drugs and psychotropic substances. The officers of Central Excise, Sangli drew representative samples under panchnama and placed the said goods under seizure.
3.2 The samples drawn from the 37 packets were forwarded for analysis to the Directorate of Forensic Science, Gandhinagar (DFS) and the DFS vide their test report letter DFS/NARCFOTICS/11/NC/82 dated 7.12.2011 has reported that the samples were prima facie suspected to be 'METHAMPHETAMINE HYDROCHLORIDE' and later on vide test report letter DFS/EE/2011/NC/82 dated 20.12.2011 and test report letter DFS/EE/2011/NC/84 dated 15.02.2012 confirmed that the samples drawn from the 37 packets tested positive for 'METHAMPHETAMINE HYDROCHLORIDE'. The DFS also confirmed that 'METHAMPHETAMINE HYDROCHLORIDE' was covered under the NDPS Act, 1985. The total value of the 37 kgs of seized material comes to Rs.37 Crores in the illicit international market.
The samples drawn by the officers of Central Excise, Sangli were forwarded to the Chemical Examiner, New Custom House, Mumbai for analysis of the same. The Chemical Examiner, New Custom House, Mumbai vide their report dated 21.12.2011 reported that :
....
each of the samples is hydrochloride salt of nitrogen bearing organic compound and gives the colour test for secondary amine. Methamphetamine and the product under reference (i.e.1-(4-methylphenyl)-2-methylaminopropan-1-one) both contain secondary amines and given same colour test. Therefore only on the basis of colour test categorical opinion cannot be given. For exact identification, instrumentation analysis i.e. I.R-Spectrophotometer is required, which is not available here.
With the above remarks, the remnant samples were returned by the Chemical Examiner, Custom House, Mumbai.
Accordingly, the second set of samples was forwarded to DFS, Gandhinagar for analysis. The DFS Gandhinagar vide their letter No.DFS/EF/2012/NC/02 dtd.04.02.2012 confirmed that, the samples tested positive for METHAMPHETAMINE HYDROCHLORIDE. The DFS also confirmed that METHAMPHETAMINE HYDROCHLORIDE was covered under NDPS Act, 1985. The total value of 432 kgs of METHAMPHETAMINE HYDROCHLORIDE comes to Rs.432.00 Crores approximately in the illicit international market.
3.3 Further, the officers of Central Excise during the course of Panchnama dated 04.12.2011 also seized a consignment of 81 kgs of Ketamine Hydrochloride from the premises of M/s Kamud Drugs Pvt. Limited having Central Excise Registration as AABCK1455BXD001 (a registered dealer under Central excise) for the purpose of further investigation. The said 81 kgs of Ketamine Hydrochloride pertained to the following batch numbers :
Sr. No Batch Number Quantity 1 KHP 10001b 32 kgs 2 KP-12-09-11-017 07 kgs 3 KP-12-09-14-013 3 kg 4 KP-12-10-11-002 1.8 kg 5 KP-12-09-14-011 16 kg 6 KP-12-09-11-020 17 kg 7 KP-12-19-14-014 1 kg 8 KP-12-10-14-001 1 kg 9 KP-12-09-14-021 2.850 kg TOTAL 81.650 Investigations carried out revealed that the 81.650 kgs Ketamine Hydrochloride was actually manufactured by the manufacturing unit M/s Kamud Drugs Pvt. Limited N-6 & 8, M.I.D.C., Kupwad Block, Sangli-416436, Maharashtra under the batch numbers mentioned in the above table.
3.4 During June-2011 DRI, Mumbai had searched the premises of M/s Kamud Drugs Pvt. Limited in connection with the seizure of 200.6 kgs of Ketamine Hydrochloride seized from a Tata Sumo vehicle at Andheri(East), Mumbai being illegally diverted for being exported by way of misdeclaration and concealment. During the course of search officers of DRI Mumbai had also recovered another consignment of about 826 kgs of Ketamine Hydrochloride contained in 32 drums from a farm house situated about 3 kms from the factory premises of M/s Kamud Drugs Pvt. Limited which was actually removed illegally from the factory premises of M/s Kamud Drugs Pvt. Limited and the said quantity was also placed under seizure by the officers of DRI, Mumbai.
3.5 Inquiries with the staff of M/s Kamud Drugs Pvt. Limited available at the factory premises during the course of Panchnama dated 04.12.2011 revealed that, consequent upon the above case, the FDI had cancelled licence No.SA-20B/1447 Dt.23.05.2008 and SA-21B/1418 Dt.23.05.2008 granted to M/s Kamud Drugs Pvt. Limited for manufacture of Ketamine and Ketamine Hydrochloride with effect from June-2011 and after the cancellation of the licence, M/s Kamud Drugs Pvt. Limited had shifted the stock of 81.650 kgs of Ketamine Hydrochloride to the dealers premises situated adjacent to the manufacturing unit. As, the manufacturers possessed a history of illicit removal of the controlled substance- Ketamine Hydrochloride i.e 81.650 kgs were placed under seizure by the officers of Central Excise, Sangli. It is noteworthy to mention that the officers of DRI, Ahmedabad had also recovered 06 kgs of 'White Coloured powder substance' from the courier parcels of M/s Anshanu Exports at Air Cargo Complex, Ahmedabad under Panchnama dated 03-04/12/2011 along with the 37 kgs of 'off-white crystals'. The chemical analysis report in respect of the said 'White Coloured powder substance' has declared the same as 'Ketamine Hydrochloride'.
3.6 The source of the said 06 kgs of Ketamine Hydrochloride seized by DRI, Ahmedabad was under investigation therefore in order to investigate and confirm the probability of pilferage of the substance- Ketamine Hydrochloride, the 81.650 kgs were placed under seizure by the officers of Central Excise, Sangli as per the directives of DRI, Zonal Unit, Ahmedabad.
4. It is to be noted that co-accused Abhijit Prabhakar Konduskar filed Special Criminal Application No.1353 of 2012 under Article 226 of the Constitution of India read with Section 482 of the Code and under Sections 22, 23, 24, 25, 27A, 28, 29, 30, 38 read with Section 8(c) of the NDPS Act for issuance of directions to respondent No.2 viz.
Directorate of Revenue Intelligence to send the sample as seized on 3rd December, 2011 at Air Cargo, Ahmedabad for retesting in any of the laboratories of the Central Government, including Central Forensic Science Laboratory, Hyderabad or Central Revenue Control Laboratory at New Delhi on the ground that contraband seized was not METAMPHETAMINE, which came to be rejected by this Court vide order dated 11.05.2012.
4.1 That another co-accused Sujal Vijaybhai Patel had filed successive bail application being Criminal Misc. Application No.14483 of 2012 under Section 439 of the Code raising various contentions, including that the substance viz. Contraband is not mentioned in Schedule-I of NDPS Rules, 1985 based on the judgment of Bombay High Court in the case of M.V.Henry v. Raviprakash Goyal in Criminal Misc. Application No.3295 of 2005 and order passed by the Apex Court in Criminal Appeal No.1845 of 2010 arising out of SLP [Cr.] No.4135 of 2010. After hearing learned counsels for the parties and considering the provisions of Sections 8, 9, 22 and 76 in the context of definition of Section 2[xxiii] of NDPS Act and Rules 53 and 54 of the NDPS Rules, a co-ordinate bench of this Court vide order dated 31.01.2013 dismissed the said bail application. Paras 29 to 35 of the said judgment read as under:
29.
The Court is conscious of the rigours of Section 37 of the NDPS Act where two conditions which are cumulative and not alternative, are necessary to be satisfied that the accused is not guilty of commission of offence and no recurrence at his end is possible while on bail. It is also to be noted that exceptions of Section 8 referred to specifically in the provision will not come to the rescue of the present applicant as the present applicant is either not a medical practitioner nor is he having any manufacturing unit nor is he, in any manner, connected with any medicinal preparations. It is also alleged in the complaint itself that surreptitiously and unauthorizedly huge quantity of this psychotropic substances were to be exported.
30. This Court is also made aware of the fact that the psychotropic substances attempted to be exported unauthorizedly would fetch in the international market, huge sum running into crores of rupees ( Rs.436 approximately). As noted in paragraph 12 of this order, Methamphetamine Hydrochloride is a very addictive stimulant drug and is structured similarly to Amphatamine.
31. Section 2(xxiii) explains psychotropic substances as follows:-
psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;
Undoubtedly, these three drugs find place in the schedule to the Act, but, not in Schedule-I appended to the Rules.
32. Rules 53 and 64 contain general prohibitions in respect of import into and export out of India of the Narcotic Drugs and Psychotropic Substances or manufacturing, selling and consumption or possession or transportation of these drugs or substances specified in Schedule-I of the Rules as mentioned hereinbefore.
33. What is made punishable under this law is the contravention of any provision of this Act or any Rule or order made or conditions of licence granted.
Section 8 prohibits export from India of narcotic drugs and psychotropic substances except for medical or scientific purpose that too by way of licence permitted or authorization. In a matter before the Apex Court the drugs which were seized from the person who claimed to be Ayurveda Acharya and otherwise had a licence and had also produced requisite documents complying with the provisions of Section 67A along the application of bail. These drugs fell under the purview of Schedule-G and H of the Drugs and Cosmetics Act. Thus, in matter before the Apex Court, exception contained in Section 8 of the Act was found to be applicable.
34. In absence of any licence, permit or for authorization for medicinal or research purposes either for the purpose of manufacturing or possession or for sale or for import or export of the said psychotropic substances, the case of applicant accused does not fall under the exceptions carved out under Section 8 of the NDPS Act.
Section 76(1) read with Section 9 of the Act contemplate making of rules by the Central Government for carving out purposes of this Act and not in contravention thereof which of course would be subject to the provision of Section 8 of the NDPS Rules, 1985 framed and notified pursuant to these provisions of Section 9 and Sections permit and regulate such operations , subject to provision of Section 8. In other words, when rules are made to permit and regulate operations of narcotic drugs and psychotropic substances, they cannot be in contravention of Section 8 of the act and the same need to be construed essentially keeping in mind exception to Section 8. Any other interpretation would make the provisions of the Act subservient to the rules and orders.
35. The question, therefore, would need to be answered that huge quantity of psychotropic substances seized from the accused even when is not mentioned in Schedule-I it would still become an offence under Section 8(C) read with Section 22 and he cannot be enlarged on regular bail for not having fallen under any of the exceptions carved out in the provision itself. Interpretation otherwise than this would render not only the Schedule to the Act otiose but would frustrate the very objective of the Act, particularly keeping in mind huge quantity of psychotropic substance seized from the applicant.
5. In the above backdrop of the case of prosecution and rejection of two applications by other two accused, now, the applicant herein accused No.3 has filed this application.
5.1 Learned counsel appearing for the applicant would contend that testings conducted by Directorate of Forensic Science, Gandhinagar that both the chemicals viz. Methamphetamine and Mephedrone are similar in respect of chemical formulas is contrary to the report of reputed institutions like Haffkin Institute, Maharashtra and guidelines issued by United Nations about recommended methods for testing such substances for use by National Narcotics Laboratory. It is also submitted that the accused is in jail since 23.12.2011 pursuant to his arrest and would be available for trial and by imposing conditions the applicant may be enlarged on bail.
6. Learned APP has opposed grant of bail to the applicant.
7. Heard learned counsels for the parties. This is a case where a huge quantity of contraband was seized by DRI and offences are registered under Sections 22, 23, 24, 25, 27A, 28, 29, 30, 38 read with Section 8[C] of the NDPS Act read with Section 120B of the IPC. Under one or the other pretext attempts are made by either of the accused to see that case of prosecution does not fall under the NDPS Act and Rules by indulging into getting the samples tested from one or the other institutions to show that the contraband in question is distinguished.
7.1 This Court has perused the detailed record in this case as well as earlier orders passed by this Court in cases of co-accused and the contentions raised by learned counsel for the applicant about method, standard and parameters to be complied for testing by DFS, Gandhinagar and Haffkin Institute, Maharashtra and recommendations by United Nations about recommended methods for testing such substances for use by National Narcotics Laboratory, which are in the realm of evidence to be appreciated by the trial court. Further, due to the aforesaid attempts made by accused, the trial is getting delayed.
7.2 So far as report submitted by DFS, Gandhinagar based on standard and method of carrying out tests of the substance of the subject complaint is concerned, there is no iota of doubt about the legality and validity of the report since DFS, Gandhinagar is also recognized by law and having creditworthiness and reputation in the country and considering oral order dated 31.01.2013 passed by a coordinate Bench in Criminal Misc. Application No.14483 of 2012, this court in absence of any merit in this application not inclined to enlarge the applicant on bail in exercise of powers under Section 439 of the Code.
7.3 Considering the serious nature and gravity of the offence and the manner in which the offence is said to have been committed and punishment prescribed for such serious offence, this Court is not inclined to enlarge the applicant on bail.
Accordingly, this application fails and is hereby dismissed.
Rule is discharged.
(ANANT S.DAVE, J.) pvv Page 12 of 12