Gujarat High Court
Patel Jimitkumar Bipinbhai vs State Of Gujarat on 4 November, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
R/CR.MA/15330/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15330 of 2020
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PATEL JIMITKUMAR BIPINBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. JIT P PATEL(6994) for the Applicant(s) No. 1
MS. CHETNA M. SHAH APP (2) for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2
MR. KARTIK PANDYA, ADVOCATE for the the Respondent no.2
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 04/11/2020
ORAL ORDER
1. Heard learned advocate Mr. Jit Patel for the applicant, learned advocate Mr.Kartik Pandya for the respondent no.2 - original complainant and learned Additional Public Prosecutor Ms. Chetna M. Shah for the respondentState through video conference.
2. This application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for releasing the applicant on regular bail in connection with the F.I.R. registered as NCB/AZU/CR4/2020 registered with NCB, Ahmedabad Zone, for offences punishable under Sections 8(c), 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act").
3. Learned advocate Mr. Patel for the applicant Page 1 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER states that there is no contravention of the provisions of the NDPS Act, as the quantity of the contraband seized was not falling in the definition of commercial quantity so also the applicant is doing business of medicine on license being issued by appropriate authority and the said contraband being used for medicinal and therapeutic use there being contravention as stated in Sections 8 and 21 of the NDPS Act.
4. Learned advocate Mr.Patel states that the applicant is having the licence in name of UMA Khodal Medical Agency from the year 2015, which is valid till 14th October, 2020 and has also purchased the seized goods from R.S. Pharma on 5th March, 2020 and 23rd April, 2020 and received the delivery of the goods on 23rd April, 2020 and the respondent no.2 seized such goods on 26th April, 2020. Learned advocate Mr.Patel further submitted that the decision of the Supreme Court in case of Hira Singh Vs. Union of India, in Criminal Appeal No.722 of 2017 would not be applicable in the facts of the present case as there is no allegation made by the respondent no.2 with regard to the contraband use of the seized medicine as the respondent no.2 seized the alleged contraband goods from the place near to the house of the applicant, as the applicant could not take the delivery of the goods at his medical shop in view of the lockdown on account of Covid19 pandemic situation. Mr.Patel, therefore, submits that prima facie there is no violation of the provisions of the Page 2 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER NDPS Act by the applicant and he is therefore, required to be enlarged on bail as the chargesheet is filed and no further investigation is required to be made by the respondent no.2.
5. On the other hand, learned advocate Mr.Pandya appearing for the respondent no.2 Intelligence Officer, Narcotics Control Bureau submitted that as per the settled legal position as the petitioner has not kept the seized material at the place where he is required to keep the same and the material was found in a security cabin near the house of the applicant, therefore, the respondent no.2 was justified in seizure of the material containing the following three items.
1. Seven (07) cartons, each containing 120 bottles labeled as RTXCare Premium Cough Syrup', Codeine Phosphate and Chloropheniramine Maleate Syrup 100 ml. Bearing batch No.CBL1516/19 manufactured by C.B. Healthcare, Solan (H.) and marketed by We care Pharmaceauticals, Kalol, Distt. Gandhinagar (Gujarat).
2. One (01) carton containing 22 boxes labeled as SPASTRACAN PLUS Dicyclomine Hydrochloride, Tramadol Hydrochloride & Acetaminophen Capsules bearing batch No.CBC1371/19 manufactured by C.B. Healthcare, Solan (H.P) and marked by We care Pharmaceauticals, Kalol, Distt.
Gandhinagar (Gujarat). Batch packet
contains 06 strips, each strip
containing 24 capsules and each
capsule containing Tramadol
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R/CR.MA/15330/2020 ORDER
Hydrochloride IP 50 mg.
3. One (01) carton containing 97 boxes labeled as ALPRACAM 0.5, Alprozolam Tablets I.P. 0.5 mg bearing batch No.CBT1449/19 manufactured by C.B. Healthcare, Solan (H.P) and marked by We care Pharmaceauticals, Kalol, Distt. Gandhinagar (Gujarat). Each box contains 08 strips, each strip containing 75 tablets.
6. Mr. Pandya further submitted that there is a clear violation of provisions of Section 8(c) read with Section 21(c), 22(c) and Section 29 of the NDPS Act, 1985. Mr. Pandya relied upon the following averments made in the affidavitinreply filed on behalf of the respondent no.2 Narcotic Control Bureau.
7. That at the cost of repetition the undersigned states that to release the accused on bail provisions of S.37 of the N.D.P.S. Act will come into play. As discussed earlier, two conditions mentioned in S.37 are to be satisfied. In this case none of the conditions are satisfied and so the bail application is liable to be rejected.
8. The Apex Court in a reported case at 1999 SCC (Cri.) 1522 Union of India Vs/ Ram Samujh & Anr. at para no. 7 has categorically observed that " it is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of or two persons, while those persons who are dealing in narcotic drugs are Page 4 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER instrumental in causing death or inflicting deathblow to a number of innocent young victims, who are vulnerable; it caused deleterious effects and a deadly impact on the society; they are hazard to the society; even if they are released temporarily, in all probability they would continue their nefarious activities of trafficking and / or dealing in intoxicants clandestinely".
In the above referred judgment of the Apex Court at para no. 8 has observed that "to check the menace of dangerous drugs flooding the market, parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during the trial unless the mandatory conditions are satisfied.....".
9. That above referred judgment is followed by the Hon'ble Supreme Court in a reported case at 2001 SCC (Cri.) 648 Supdt., Narcotics Control Bureau, Chennai V/s respondent. Paulsamy wherein, at paragraph no. 6 the Hon'ble Supreme Court has discussed S. 37 of the N.D.P.S Act and ultimately has stated that both the conditions mentioned in S. 37 are to be fulfilled.
10. Thereafter, the Hon'ble Supreme Court in another matter reported at (2007) 3 SCC (Cri.) 505 Union of India V/s Shiv Shanker Kesari wherein at paragraph no. 6, S.37 of the N.D.P.S Act is discussed and the Hon'ble Supreme Court has categorically mentioned that 'no persons shall be granted bail unless the two conditions mentioned therein are satisfied.
11. Thereafter, the Hon'ble Apex Court in a judgment reported at 2014 Page 5 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER Cri. L.J. 4329 Union of India & Another V/s Sanjeev V. Deshpande wherein at paragraph no. 6, S. 37 of the N.D.P.S Act is discussed at length and ultimately it has been observed that 'in other words, S. 37 from long established principle of presumption of innocence in favour of an accused persons until proved otherwise.
12. Thereafter, the Hon'ble Apex Court in a judgment reported CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(S), 154157 OF 2020 (Arising out of SLP (Cri,). No(s) 73097312 of 2019) State of Kerala Vs. Rajesh with respect of interpretation of S. 37 of NDPS Act 20 and para 21 of the judgment. Para
20. The scheme of section 37of the NDPS reveals that the exercise of power to grant bail is not only subject to the limitation contained under section 439 of the Cr.PC, but is not only subject to the limitation placed by section 37 which commences with nonobstante clause. The operative part of the section is in the negative from prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first conditions is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable ground for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
13. Para 21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not Page 6 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.
14. That undersigned, therefore, begs to submit that the applicant accused may not be enlarged on bail for want of any valid grounds. That there is no merit. Moreover, the applicant accused is facing very serious charges under the N.D.P.S. Act. Thus, on the ground of the Hon'ble Court may not be pleased to exercise the powers u/s. 37 of the N.D.P.S. Act in favour of the accused and thus, may be pleased to reject the bail application.
15. The undersigned also submits that the investigation of the instant case is completed and the complaint of the case was filed on 20.10.2020 within stipulated time i.e. 180 days however the charges against the petitioner is yet to be framed and that the undersigned apprehends that if the applicant accused is released on bail even for a day he will definitely get involved in illegal transportation of contraband substance. The undersigned also apprehends that if the applicant accused is released on bail, considering the gravity of offence, the applicant will definitely jump the bail and may Page 7 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER not be available to face the trial or may cause prejudice to trial of the case as the entire case is based on documentary evidences. Considering the apprehension on the part of the undersigned, the Hon'ble Court may not be pleased to exercise the powers u/s. 37 of the N.D.P.S. Act in favour of the applicant accused.
7. Mr.Pandya further relied upon the following averments made in the affidavitinreply in response to the grounds raised in the application for bail.
"16. Reply to the grounds sought in the application:
A. The Drugs seized in this case were not seized from the premises of "UMA KHODAL MEDICAL AGENCY but from an unlicensed premises and hence, under illegal possession of applicant accused applicant accused was found under illegal possession of narcotic drugs and psychotropic substances which were later seized. He was not authorized to keep the seized drugs in other than the licensed premises and he has also accepted his role in his voluntary statements. The seizure was done only on the basis of the information received from FDCA, Patan, Gujarat that the Narcotics Drugs & Psychotropic substances was stored in unlicensed premises which was found correct and later on seized by NCB Ahmedabad. During investigation it was also came to notice that he stored the seized drugs for diversion other than the therapeutic use.Page 8 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020
R/CR.MA/15330/2020 ORDER B. The Drugs seized in this case were
not seized from the premises of "UMA KHODAL MEDICAL AGENCY but from an unlicensed premises and hence, under illegal possession of applicant accused. Applicant accused was found under illegal possession of narcotic drugs and psychotropic substances which were later seized.
C. That, in the instant case the contraband article seized are 840 Bottles (100 ml. each)of Codeine Phosphate (Narcotics drugs) Syrup, which is equivalent to 84 Liters equivalent to Approx. 84 Kg. It is far more than the commercial quantity of Codeine which is 1 Kg. 58200 Tablets of Alprazoflam (0.5 mg) (Psychotropic substances) were recovered which is equal to 29.1 gm and weight of the 3168 tablets containing Tramadol Psychotropic substances) is equivalent to 1.21968 Kg. It is far more than the possession of Jimitkumar Patel at the unlicensed premises i.e. Security Office, Sai Kutir Bunglows, Near Surabhi tenement, Patan Unjha Highway, Hansapur, Patan, Gujarat knowingly that storing of such drugs at unlicensed place is illegal and keeping the keys of the premises in his possession without the knowledge of the Security Guard of the society. He was also having the lock down exemption documents as the medical facility comes under essential services. He kept the seized drugs at the unlicensed place only for the diversion of the drugs other than medical purposes and he sold 03 boxes to Bhikhabhai Ukabhai Mali of Desa, Page 9 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER Gujarat without any bill and in investigation it was found that the same person have not valid license.
Sec2 (xi) "Manufactured drugs" means
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug; Sec.21 of the NDPS Act 1985 Punishment for contravention in relation to manufactured drugs and preparations. whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,
(a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
Page 10 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020R/CR.MA/15330/2020 ORDER (b) Where the contravention involves quantity, lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than oire takh rupees but which may extend to two lakh rupees; Provided that the court may for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
Sec. 2 (xxiii) "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;
Section 22 of NDPS Act, 1985 :
Punishment for contravention in relation to Psychotropic substances. whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under, manufactures, possesses, sells, purchases, transports, imports inter State, exports interState or uses any psychotropic substance shall be punishable,
(a) Where the contravention involves shall quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees or with both;Page 11 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020
R/CR.MA/15330/2020 ORDER (b) where the contravention involves
quantity lesser than commercial quantity but - greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
[Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]. So that the complaint of the instant case was filed within stipulated time i.e. 180 days u/s 36A(4) of the NDPS Act 1985 (as amended).
D. It is a full proof case and when the contraband article seized are 840 Bottles (100 ml. Each) of Codeine Phosphate Syrup, which is equivalent to 84 Liters equivalent to Approx. 84 Kg. it is far more than the commercial quantity of Codeine which is 1 Kg. 58200 Tablets of Alprazolam (0.5 mg) were recovered which is equal to 29.1 gm and 3168 tablets containing Tamadol equivalent to 1.21968 Kg. It is far more than the commercial quantity of Tramadol which is 250 gm. It is hereby referred to notification of Government of India vide S.O. 2941(E) dated 18th November 2009 which infers that 'whatever contraband substance recovered from the accused i.e. the total Page 12 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER weight of the contraband substance is to be considered and not just its pure drug content'. The Hon'ble Supreme Court has considered this point in Cri.
Appeal No.722/2017 in a case of Hira Singh and another versus Union of India and another which infers "In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances". Vide this judgment is also infers "Section 21 of the NDPS Act is not standalone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001"
E. Refer to Para D and it may be pertinent to note that over and above S.439 of Cr.P.C. Provisions of S.37 of the N.D.P.S. Act will come into play. Section 37 speaks in volume. It has been categorically stated that accused of the offence under the N.D.P.S. Act should not be released on bail during the trial unless the mandatory conditions provided in S.37 viz.
i. There are reasonable grounds for believing that the accused is not Page 13 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER guilty of such offence and ii. That he is not likely to commit any offence while on bail.
F. The applicant accused is himself a licence holder under Drugs and Cosmetic Act and fully aware of license provisions. In his voluntary statements he has stated that he knows it is illegal to store drugs in unlicensed premises. Still, he consciously stored drugs under his possession in unlicensed premises.
G. As per Honourable Apex court observation in Union of India vs. Sanjeev V. Deshpande (supra), wherein it was held that:
"25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fac that the DEALING IN narcotic drugs and pyschotropic substances is for a medical or scientific purpose does not by itself lift the embargo created Under Section 8(c). Such dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.
"26. The Act does not contemplate framing of rules for prohibiting Page 14 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c).
It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances..."
Also as per rationale provided in State of Punjab Vs. Rakesh Kumar Section 21 © will be applicable in present case.
Decision rendered by the Apex Court in Union of India v. Sanjeev V. Deshpande (2014) 13 SCC 1, wherein it was clearly held that dealing in narcotic drugs and psychotropic substances is permissible only if it is for medical or scientific purposes. But even the usage for medical and scientific purposes is not restriction free, as it is subject to rules under the N.D.P.S. Act.
H. that the complaint of the instant case was filed within stipulated time i.e. 180 days u/s 36A(4) of the NDPS Act 1985 (as amended). It may be pertinent to note that over and above S.439 of Cr.P.C.
Provisions of S.37 of the N.D.P.S. Act will come into play. Section 37 speaks in volume. It has been categorically stated that accused of the offence under the N.D.P.S. Act should not be released on bail during the trial unless the mandatory conditions provided in S.37 viz.
I. Refer to Para A. Page 15 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER J. It is hereby referred to notification of Government of
India vide S.O. 2941(E) dated 18th November 2009 which infers that 'whatever contraband substance recovered from the accused i.e. the total weight of the contraband substance is to be considered and not just its pure drug content'. The Hon'ble Supreme Court has considered this point in Cr.
Appeal No.722/2017 in a case of Hira Singh and another versus Union of India and another which infers "In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances". Vide this judgment is also infers "Section 21 of the NDPS Act is not standalone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001". So that the complaint of the instant case was filed within stipulated time i.e. 180 days u/s 36A (4) of the NDPS Act 1985 (as amended).
K. Thus, it is full proof case and when the contraband article seized are 840 Bottles (100 ml. Each) of Codeine Phosphate Syrup, which is equivalent to 84 Liters equivalent Page 16 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER to Approx. 84 Kg. It is far more than the commercial quantity of Codeine which is 1 Kg. 58200 Tablets of Alprazolam (0.5 mg) were recovered which is equal to 29.1 gm and 3168 tablets containing Tramadol equivalent to 1.21968 Kg. It is far more than the commercial quantity of Tramadol which is 250 gm. and hence, this bail application is liable to be rejected and refer to para A & Para J.
L. No Comment.
17. On cost of repetition it is stated that The Drugs seized in this case were not seized from the premises of "UMA KHODAL MEDICAL AGENCY but from an unlicensed premises and hence, under illegal possession of applicant accused. Applicant accused was found under illegal possession of narcotic drugs and psychotropic substances which were later seized. He was not authorized to keep the seized drugs in other than the licensed premises and he has also accepted his role in his voluntary statements. The seizure was done only on the basis of the information received from FDCA, Patan, Gujarat that the Narcotics Drugs & Psychotropic substances was stored in unlicensed premises which was found correct and later on seized by NCB Ahmedabad. During investigation it was also came to notice that he stored the seized drugs for diversion other than the therapeutic use. Thus, it is a full proof case and when the contraband article seized are 840 Bottles (100 ml. each) of Codeine Phosphate Syrup, which is equivalent to 84 Liters equivalent to Approx. 84 Kg. It is far more than the commercial quantity of Codeine which is 1 Kg. 58200 Page 17 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER Tablets of Alprazolam (0.5 mg) were recovered which is equal to 29.1 gm and 3168 tablets containing Tramadol equivalent to 1.21968 Kg. it is far more than the commercial quantity of Tramadol which is 250 gm. It is hereby referred to notification of Government of India vide S.O. 2941(E) dated 18th November 2009 which infers that 'whatever contraband substance recovered from the accused i.e. the total weight of the contraband substance is to be considered and not just its pure drug content'. The Hon'ble Supreme Court has considered this point in Cri. Appeal No.722/2017 in a case of Hira Singh and another versus Union of India and another which infers "In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances". Vide this judgment is also infers "Section 21 of the NDPS Act is not standalone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O. 2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001". It may be pertinent to note that over and above S.439 of Cr.P.C. Provisions of S.37 of the N.D.P.S. Act will come into play. Section 37 speaks in volume. It has been categorically stated that accused of the offence under the N.D.P.S. Act should not be released on bail during the trial unless the mandatory conditions provided in S.37 viz.
Page 18 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020R/CR.MA/15330/2020 ORDER iii. There are reasonable grounds for believing that the accused is not guilty of such offence and iv. That he is not likely to commit any offence while on bail.
18. The applicant accused had illegal possession of drugs and same were seized following due procedures under NDPS Act. The undersigned apprehends that if the applicant accused is released on bail even for a day he will definitely get involved in illegal transportation of contraband substance. The undersigned also apprehends that if the applicant accused is released on bail, considering the gravity of offence, the applicant will definitely jump the bail and may not be available to face the trial or may cause prejudice to trial of the case.
That the applicant is facing very serious charges and there is a full proof case going against the accused and so after considering the provisions u/s. 37 of the N.D.P.S. Act, this bail application is liable to be rejected. All procedures under NDPS Act were duly followed and necessary action taken as per law.
19. Considering all these facts on record, it is prayed that the bail application by the accused applicant may please be rejected in the larger interest of the society."
8. Relying upon the aforesaid averments Mr.Pandya submits that in view of the aforesaid settled legal position, the respondent authority was justified in arresting the applicant and seizure the goods, as the same were falling within the scope of contraband Page 19 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER goods under the provisions of the NDPS Act. Mr.Pandya further submitted that the Supreme Court in case of Union of India Vs. Sanjeev Deshpande (supra) has categorically held that the dealing in Narcotic Drugs and Psychotropic Substances for medical or scientific purpose does not by itself lift embargo created under Section 8(c) and therefore, the petitioner is not entitled to the regular bail only on the ground that the petitioner having licence to sell such contraband goods for the medical purpose. It was submitted by Mr.Pandya that there is a violation of provisions of the Act resulting into seizure of the goods and as such the applicant was arrested, which is evident from the documents on record.
9. Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of the respondent State has opposed grant of regular bail looking to the nature and gravity of the offence.
10. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.
11. Having heard the learned advocates for the respective parties and having gone through the materials on record and after considering the submissions canvassed by both the sides, I am of the opinion that there is a prima facie case in favour of the applicant for releasing him on bail.
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12. This Court has considered following aspects :
(a) Applicant is in jail since 27th April, 2020.
(b) Investigation is over and chargesheet is filed.
(c) Prima facie it appears that only fault on the part of the applicant is due to lockdown on account of Covid19 pandemic situation, the applicant took the delivery of the goods, which are alleged to be contraband near his house instead of his medical shop, where he was supposed to take the delivery as per the terms of the license and provisions of the NDPS Act.
(d) Learned advocate for the applicant submitted that there is nothing on record to show that the petitioner has sold such goods to any unauthorised person and therefore, prima facie the applicant could not said to have contraband the provisions of Section 8(c) read with Section 21(c), 22(c) and Section 29 of the NDPS Act, 1985.
Looking to the overall facts and circumstances of the present case, I am inclined to consider the case of the applicant.
13. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Page 21 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER Investigation, reported in [2012] 1 SCC 40.
14. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with F.I.R. registered as NCB/AZU/CR 4/2020 registered with NCB, Ahmedabad Zone on executing a personal bond of Rs.10,000/ (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the concerned trial court till the trial is over;
[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month till the trial is over;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;
15. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge Page 22 of 23 Downloaded on : Fri Nov 06 23:49:06 IST 2020 R/CR.MA/15330/2020 ORDER concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
16. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
17. Rule is made absolute to the aforesaid extent. Direct service is permitted.
18. The Registry is directed to communicate this order to the concerned Court/authority by Fax or Email.
(BHARGAV D. KARIA, J.) AMAR RATHOD...
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