Gujarat High Court
Sujal Vijaybhai Patel vs State Of Gujarat & on 31 January, 2013
Author: Sonia Gokani
Bench: Sonia Gokani
SUJAL VIJAYBHAI PATEL....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/14483/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 14483 of 2012 ================================================================ SUJAL VIJAYBHAI PATEL....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR IH SYED, ADVOCATE for the Applicant(s) No. 1 SMITAKSHI ROY, ADVOCATE for the Applicant(s) No. 1 MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 2 MR RC KODEKAR, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 31/01/2013 ORAL ORDER
1. Applicant has preferred this successive bail application under Section 439 of the Code of Criminal Procedure in connection with F.No.DRI/AZU/NDPS-1/2011 under Sections 22, 23, 24, 25, 27A, 28, 29, 30, 38 read with Section 8(c) of the NDPS Act, 1985 read with Section 120(B) of the Indian Penal Code.
2. The applicant accused, had preferred Criminal Miscellaneous Application No. 11287 2012 seeking default bail under Section 167(2) of the Code of Criminal Procedure and thus, his case on merits is being examined for the first time as he also chose not to prefer the bail under Section 439 of the Code of Criminal Procedure before the Sessions Court.
The brief facts necessary to understand the issues raised in this case are as narrated herein :-
The officers of DRI conducted a raid at the Air Cargo Complex, Ahmedabad on 4.12.2011. Two courier consignments ready for being exported through courier shipping bill of Anshanu Exports ( a courier company) were examined. The first consignment was destined for USA; the contents of the cargo did not tally with the description of the courier shipping bill. The consignor was found to be fictitious and the contents of the consignment is alleged to be 6 kgs. Ketamine Hydrochloride. The second consignment was destined to UK, which contained the contents of Methamphetamine Hydrochloride of 37 kgs. where also description of the courier and all contents of cargo did not match and the consignor was found to be fictitious.
One Manibhai Sharma @ Bakabhai is alleged to have been dealing with the consignment and the documents. The officers of DRI also learnt that he is the manager of M/s. Anshanu Exports. His statement was recorded under Section 67 of the NDPS Act wherein he stated that he was acting as per the instruction of the present applicant. The premise of manufacturer shown on one of the consignments namely M/s. Kumud Drug Pvt. Ltd., Sangli was raided recovering 432 kgs of Methamphetamine Hydrochloride. In the follow up action on 5.12.2011 a premises at 10, Amrut Appartment. Opposite Red Cross Society, Gujarat Society, Paladi, Ahmedabad was searched and a seizure of a consignment/package consisting of 48 kgs of Alprazolam took place. The present petitioner was apprehended on 15.12.2011 along with his wife and his statement was recorded on 15.12.2011 and 16.12.2011. Accordingly, he was arrested and subsequently other co-accused also were arrested on different dates.
4. On issuance of notice learned counsel for DRI appeared and filed affidavit-in-reply inter alia contending that the applicant has not approached the Sessions Court with similar prayer under Section 439 of the Code of Criminal Procedure. Earlier application for bail was preferred under Section 167(2) of the Code and not under Section 439 of the Code of Criminal Procedure. It is further contended that the applicant has made a clear violation of Section 8(C) of the NDPS Act for his having indulged in possession, sale, purchase and transport of psychotropic substances seized in the instant case like Methamphetamine, Alprazolam, Ketamine Hydrochloride. There is nothing to indicate according to the respondents that the applicant accused is authorized either for medicinal or scientific purpose to possess these psychotropic substances. It is further urged that the applicant acted as a courier and attempted illegal export of these substances by hiding these packets with the packets of flour and such export was designed in the name of fictitious consignors and consignees. It is also contended that in absence of any licence or authorization, Rule 57 of NDPS Rules 1985 prohibits such possession and other connected activities. Schedule II of NDPS Rules, 1985 reflects all the three psychotropic substances seized in the instant case and Rule 53A prohibits export of such substances. It is further contended that in a statement given under Section 67 of the NDPS Act, the applicant has accepted confirming his knowledge that these were the psychotropic substances such version this has been corroborated by his employee Shri Babubhai Sharma. It is also the say of the respondents that Rule 66 would not allow the applicant to possess/deal with psychotropic substances unless, he has a licence to so do it and he has followed the provisions of NDPS Act and Rules, he cannot get the benefit of discretion of bail.
4.1 It is further contended that reliance is placed on the decision of the Apex Court and of Bombay High Court on the ground that these substances are not mentioned in Schedule I of NDPS Rules, 1985.
Such decisions in the case of applicant would not be applicable. It is further contended that in the matter before the Apex Court, the drugs seized were from the clinic of the applicant, as the applicant there was a doctor having valid licence. Moreover, the Apex Court had no occasion to deal with the applicability of Rule 57 as well as Rule 53A of the Rules, which would have an applicability in the instant case. As far as the decision of the Bombay High Court rendered in Criminal Appeal No.1845 of 2010 is concerned, it is contended by the other side that the substances seized may not be mentioned in Schedule I of NDPS Rules, 1985. However, with nothing to indicate with regard to adjudication or interpretation of Rules 53A, 57 and 66, this authority should not be applicable to the case of the present applicant.
4.2 It is further the say of the respondents that in SLP(Criminal) No.9035 of 2011 pending before the Apex Court, no final order has been passed and the same is still pending. From these details, it is urged that total quantity of 1.556 kgs of seized psychotropic being very large, Interim order in such background must not be granted.
4.3 Again, in Criminal Miscellaneous Application No. 2343 of 2011 one of the co-accused vide order dated 25.4.2012 has been enlarged. However, in absence of any reasons, the same should not be treated according to the respondent, as a precedent.
4.4 Reference is also made of SLP(Criminal) No.4976 of 2006 where the Apex Court has referred the issue to three Judges Bench, as there are conflicting decisions with regard to applicability of Section 8 of NDPS Act. However, according to the respondent, in that case also authorized representative of M/s. Gujarat Market had held a drug licence for manufacturing of injection and certificate of exporter and importer also was issued in favour of Gujarat Marketing. It is, therefore, urged that the present applicant does not have any valid licence under the Drugs and Cosmetics Act, 1940 and he has clearly indulged in transport of psychotropic drugs and that too holding the commercial quantity. Rigors of section 37 of NDPS Act would apply in his case. It is urged that huge quantity of psychotropic substances have been seized estimating value worth crores of rupees in the illicit international market. Therefore, also no benefit be accorded of grant of bail as it is a conscious and deliberately engineered conspiracy executed by the applicant.
Learned counsel Mr.I.H.Syed appearing with Ms. Smitakshi Roy for the applicant and Mr. Hriday Buch, learned Standing Counsel for DRI have been heard at length who have fervently argued their respective submissions.
6. At the outset, the first contention raised by the respondents with regard to the applicant having directly approached this Court under Section 439 of the Code of Criminal Procedure requires to be dealt with. Section 439 of the Code of Criminal Procedure confers special powers on High Court and the Court of Sessions for grant of bail to a person, who is accused of an offence of a nature prescribed in sub-Section (3) of Section 437 of the Code of Criminal Procedure on imposing certain conditions, which they think are necessary.
6.1 The Court needs to regard the nature and seriousness of the offence, possibility of tampering of prosecution evidence by the accused, possibility of accused fleeing away from justice and the punishment the offence may entail, the circumstances peculiar to the accused and the larger interest of the public etc., while considering such application for bail. As the powers are given to both the Courts, it is a discretion of the litigant to invoke jurisdiction of either of them. If the applicant chooses not to prefer any application under Section 439 before the Sessions Court that itself cannot be the ground for this Court to dismiss his application or direct him to approach this Court only after having exhausted the remedy before the Sessions Court.
7. This brings this Court to the another vital aspect on merit. As mentioned earlier, application of this applicant for grant of bail on account of alleged default made by the Investigating Agency in laying the chargesheet has been rejected when he preferred default bail under Section 167(2) of the Code of Criminal Procedure. However, while upholding the order of the learned Sessions Judge, this Court had not touched the merits of the case. It is for the first time that the matter is being pursued on merits. Therefore, it will not be possible to treat the this as a successive bail in stricto senso and uphold the contention that unless the change in the circumstances are made out, the Court cannot entertain the same on merits.
8. This brings this Court to the third and the most vital aspect whether the petitioner is entitled to the grant of regular bail particularly on account of non-inclusion of the all the three psychotropic substances allegedly seized from him in the Schedule I of NDPS Rules.
10. Much emphasis is laid by learned advocate Mr. I.H.Saiyed appearing for the applicant accused on the decision of the Bombay High Court and also on the decision of the Apex Court to urge this Court that absence of such specific inclusion of these substances in the schedule would not make the act of the person an offence under Section 8 of the NDPS Act and thus, benefit of such situation needs to be availed to the applicant. He reiteratively argued that such technical loophole if benefits the applicant, Court should allow the same as it is a matter of personal liberty.
11. Per contra, learned advocate Mr. Buch has fervently objected to such proposition, particularly, arguing that various rules mentioned in the affidavit-in-reply were not discussed before the Apex Court. Moreover, there were conflicting judgments and one of them has been referred to the Larger Bench. However, he does not dispute that while so doing, the Court had enlarged the accused on regular bail noting that the liberty of an individual cannot be subjected to the outcome of the reference. He although emphasized all along that circumstances peculiar to the applicant would not entitle him any discretionary relief.
12. At the outset, some of the details available from National Institute on Drug Abuse Site would be necessary to be capsulized to understand the gravity of seized substance.
12(i) Methamphetamine is a central nervous system stimulant drug and is similar in structure to amphetamine . Due to its high potential for abuse, Methamphetamine is classified as Schedule-H drug and is available only through a prescription that cannot be repeated. Although Methamphetamine can be prescribed by a doctor its medical uses are limited and the dose that are prescribed are much lower than those typically abused.
12(ii) Methamphetamine is a white odorless, bitter tasting crystal like powder that easily dissolves in water and alcohol and is taken orally and inhaling by (sharing the powder) by needle injection or by smoking.
12(iii) Methamphetamine is a very addictive stimulant drug. It can be smoked, injected, inhaled or taken orally. It has many street names such as speed, meth and chalk. Methamphetamine Hydrochloride, the crystal form inhaled or by smoking is referred to as ice, crystal, glass and tina.
12(iv) Taking even a small amount of Methamphetamine can result in many of the same physical effects as those of other stimulants, such as cocaine and amphetamine.
12(v) Methamphetamine increases the release and blocks the brain chemical (a neurotransmitter) dopamine, leaving high levels of chemicals in brain, a common mechanism of action for most drugs of abuse.
12(vi) Methamphetamine affects the brain and creats feelings of pleasure, increases energy and elevates mood. Abuser may be addicted quickly, needing high doses more often. Adverse health affects with irregular heartbeat and increased blood pressure and variety of phychological problems. Long term abuse affect several mental disorder, memory loss and severe dental problems.
12(vii) Transmission of HIV and Hepatitis B & C can be consequences of Methamphetamine abuse.
13. Before adverting to the rival contentions of the parties, law on the subject would be important to note. Section 8 of the NDPS Act, 1985 profitably requires to be reproduced:-
8. Prohibition of certain operations.- No person shall (a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance.
Except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.
14. What is made punishable under Section 22 is the contravention of any of the provisions of the NDPS Act as well as any Rules or orders made thereunder. Different punishments are prescribed in respect of small quantity, quantity which is less than the commercial quantity and also for the commercial quantity.
15. Section 22 of the NDPS Act reads thus:-
22. 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 thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable:
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(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 lakhs rupees but which may extend to two lacs rupees:
PROVIDED THAT the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lacs rupees.
16. The Central Government, in exercise of its powers conferred by Section 9 read with Section 76 of the NDPS Act, has made Narcotic Drugs and Psychotropic Substances Rules, 1985 ( Rules for short).
16.1 Chapter VI of NDPS Rules talks about import, export and transhipment of narcotic drug substances.
Unless there is valid authorization issued by the Government, no consignment of any narcotic drug and psychotropic substance can be exported, of course, subject to provisions of Section 79 and Rule
53. 16.2 Rule 53 speaks of general prohibition. No drugs or psychotropic substances specified under Schedule I can be imported or exported. Of course, if there is import certificate or export authorization, exception is permissible only under these authorizations.
16.3 Rule 53A of the said Rules prohibits export of any of the narcotic drugs and psychotropic substances specified in Schedule II. However, it is within the authority of the Narcotic Commissioner to permit export of specified quantities of such narcotic drugs or psychotropic substances under the special import licence to be issued by the competent authority of the country.
16.4 Rule 66 of NDPS Rules does not permit any person to possess psychotropic substances for any purpose unless he is authorized lawfully to possess such substances for any of the said purpose under the Rules for medicinal purpose, psychotropic substance in the possession of individual should not exceed 100 dosage units at a time. It is further provided that the individual may possess the quantity not exceeding 300 dosage units at a time if advised medically.
Research institute or hospital or dispensary supported by a Government Local Body or by voluntary subscription are permitted to possess reasonable quantity of such substance for genuine scientific and medical requirements and individual can possess for a personal medical use the quantity not exceeding 100 dosage units and for long term medical use prescribed by registered medical practitioner the quantity must not exceed 300 dosage units.
Thus, it can be deduced from this rule that any one possessing more than 300 dosage units at a time, for personal consumption even with prescription for medical usage, the rule prohibits such possession.
16.5 Rule 67 permits transportation and importation inter-State or exportation inter-State subject to the provision of Rule 64 which prohibits any psychotropic substance to be sold, purchased, consumed or possess. Psychotropic substance specified in Schedule I means that those substance specified in Schedule I are having general prohibition and none of the above-mentioned activities is permissible.
17. In a matter before the Bombay High Court (in Criminal Application No.3618 of 2010) in case of Union of India vs. Ravindran Krarapaya @ Ravi and Ors. (with Criminal Application No.5640 of 2009) in the case of Union of India vs. Xie Jing Feng @ Richard & Anr, the High Court was considering the request of Union of India for cancellation of bail of the accused granted by the Special Court.
In these matters, the officers of NCB had raided flat of the accused. They found 7 kgs of Methamphetamine and 5 kgs of Ephedrine. These contraband articles were seized and sealed under Panchnama. The accused were arrested and they were taken into custody in connection with the seizure. The statements were recorded and it was revealed that accused Xie Jing Feng dealt with export of contraband drugs and other accused, who were his employees, assisted him. The Court noted that Methamphetamine is a psychotropic substance while Ephedrine is a controlled substance. Accused were alleged to have committed offence under Section 22 and 25A of the NDPS Act.
Special Judge relying on the judgment and order passed by the Bombay High Court in Criminal Miscellaneous Application No. 3295 of 2005 , (M.V. Henry vs. Raviprakash Goyal) and Pradeep Dhond vs. NCB, Mumbai held that the provisions of NDPS Act were not prima facie applicable and therefore embargo under Section 37 of NDPS Act would not come into play.
Such grant of bail, therefore, came to be challenged on the ground that Methamphetamine is a psychotropic substance as defined under Section 2(xxiii). It was contended before the Bombay High Court that Section 8(C) provided for prohibition and Section 22 provided for punishment of contravention in relation to psychotropic substances. Punishment prescribed under the provisions of Section 22 is less than 10 years and which can extend upto 20 years, and therefore, the bail ought not to have been granted. Other side argued that Methamphetamine is not shown in Schedule I as per the Rules 53 and 64 of the NDPS Rules. Therefore, general prohibitions as contained in both these rules would not applicable. Various judgments of different High Courts were relied upon and relying on the judgment of Bombay High Court in M.V. Henry vs. Raviprakash Goyal (supra), the accused contended that the order required no interference. The Court, after a detailed discussion of the provisions, allowed both these applications cancelling the bail granted to both the accused.
It would be worthwhile to reproduce the relevant paragraphs for the purpose of determining contentions raised by the petitioner herein:-
12. Section 76(1) of the Act provides that subject to other provisions of the act, the Central Government may, by notification in the official Gazette, make rules for carrying out purposes of this Act. Section 9 provides that subject to provisions of Section 8, the Central Government may, by rules permit and regulate cultivation, production, manufacture, etc. of coca plant, opium, other narcotic drugs as well as psychotropic substances. The Central Government by virtue of powers under Sections 9 and 76 framed and notified Narcotic Drugs and Psychotropic Substances Rules, 1985. Chapter III and IV provides for opium. In view of the language of Section 9, it is clear that the Rules, that the Central Government has framed to permit or regulate such operations, are subject to provisions of Section 8 and Section 8, as pointed out above, prohibits any such operation in respect of narcotic drugs or psychotropic substances except for medical or scientific purposes. It means under section 9, the Government may frame rules to permit and regulate such operations as per the said exception to Section 8 and not in contravention of the same. Similarly, Section 76 clearly shows that the Central Government may frame and make rules for carrying out purposes of the act and not for anything in contravention to that. The schedule of the psychotropic substances under the Act is part of the act and no rule can be framed or can be interpreted in the manner which would be in contravention of the said schedule or the contravention of Section 8 or Section 22.
13. Chapter 5 of the Rules deals with the rules and grant of licence for the manufacture of drugs. Chapter 6 of the Rules deals with import, export, transhipment of narcotic drugs and psychotropic substances. Rule 53 puts a general prohibition on the import into and export out of India on the narcotic drugs and psychotropic substances specified in Schedule I subject to other provisions of that chapter. Chapter 7 deals with psychotropic substances and Rule 64 provides that no person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. Thus, it will be clear that while Rule 53 prohibits import in and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I. Rule 64 prohibits inter-State import or export, sell, possession, etc. of psychotropic substances specified in schedule I of the Rules. It may be noted that prior to amendment with effect from 13th October, 2006 in the Schedule I of the Rules 33 narcotic drugs and some psychotropic substances were included in that Schedule I. After the amendment, only there are three entries under the Narcotic Drugs and there are three entries under the Psychotropic Substances. Fourth in each category is salts, preparations, admixtures, extracts and other substances containing any of these drugs or psychotropic substances. Thereafter, there is a Schedule II framed under Rule 53-A which provides that narcotic drugs or psychotropic substances or preparations specified in Schedule II shall not be exported to the countries or to the regions mentioned therein. Again in Schedule II, there are in all 45 entries and against each substance, in which, that particular narcotic drug and psychotropic substance cannot be exported. Methamphetamine at Serial No.30 in the said Schedule and against that entry, names of 14 countries are mentioned to which this substance cannot be exported. Rule 65 provides that manufacture of psychotropic substances other than those specified in Schedule I shall be in accordance with conditions of licence granted under the Drugs and Cosmetics Rules, 1945, framed under the Drugs and Cosmetics Act, 1940, by an authority in charge of drugs control in a State appointed by the State Government in this behalf. Proviso of Rule 65 provides that said authority in charge of the drug control may issue a licence to manufacture a psychotropic substance specified in Schedule III for the purpose of export only. In the Schedule III, there are 34 items.
14. If the schedule of the Act is perused carefully along with Schedules I, II and III under the Rules, it will be clear that while the Schedule under the Act describes the psychotropic substances, the Schedule I, II and II are framed under the Rules for different purposes and none of those three schedules contains all the psychotropic substances which are shown in the schedule to the Act. Some of them are in Schedule I, some of them are in Schedule II and some are in Schedule III of the Rules and the purpose of each schedule is different. If these schedules I, II and III are read along with Rules, it will become clear that under Rule 53, drugs and psychotropic substances specified in schedule I cannot be imported into and exported out of India, except under an import certificate or export authorisation issued under different provisions of that chapter. Under Rule 64, no person shall manufacture, transport, possess, import inter-State, export inter-State, sell, purchase, consume, use any of the psychotropic substances specified in Schedule I. As per Rule 65, the manufacture of psychotropic substances other than those mentioned in Schedule I shall be in accordance with the conditions of the licence granted under the Drugs and Cosmetics Rules, 1945. The psychotropic substances in Schedule III should be manufactured under licence issued by the authority in charge of the drug control in the State. Rules 66(1) specifically provides that no person shall possess any psychotropic substance for any of the purposes covered by the Drugs and Cosmetics Rules, 1945 unless he is lawfully authorised to possess such substance for any of the purposes under the Rules. Thereafter, Rules 66(2) provides for possession and use of psychotropic substances by research institutions, hospitals, dispensaries, etc. It also provides for possession by an individual for his personal medical use subject to prescription by the registered Medical Practitioner. In normal circumstances for medical purposes, one may be permitted to possess not exceeding 100 dosage units at a time and for his personal long term medical use, he may be permitted to possess more than 100 dosage but not exceeding 300 dosage at a time. The quantity which may be possessed by the research institutions, hospitals, dispensaries, etc. are also prescribed by the Rules and the licence or permit which may be issued to them. From this, it is clear that nobody can be in possession of any such psychotropic substance unless he has appropriate licence, permit or authorisation either under these Rules or under the Drugs and Cosmetics Rules, 1945. At the cost or repetition, it may be again stated that in the present case, none of the accused persons claim to have any such licence, permit or authorisation to possess or store or use any quantity of Methamphetamine.
xxx xxx xxx xxx xxx xxx xxx xxx xxx In the present case, huge quantity of 7 kg. Methamphetamine was recovered from flat no.601 which was, prima facie, in possession of the accused persons. It is not the case of the accused that they had any licence, permit or authorisation either to manufacture or possess or store the said psychotropic substance. Therefore, none of the above authorities or the Rules comes to support the accused. In fact, Rule 66 also prohibits any person from possession of any psychotropic substance for any of the purposes covered by the Drugs and Cosmetics Rules, 1945 unless he is lawfully authorised to possess a substance for any of the said purposes under the Rules. In the present case, accused do not claim to have any such authorisation. Therefore, in view of the provisions of Section 8 read with Section 22 of the NDPS act, prima facie, the accused had comitted the offence of possession of commercial quantity of psychotropic substance i.e. Methamphetamine and are prima facie, liable to be convicted and sentenced under Section 22(c). Taking into consideration huge quantity which is much beyond the limits of commercial quantity also and the revelation made during the investigation that accused No.3 was regularly dealing with export of psychotropic substance form India and that accused Nos.1 and 2 were assisting him, no case is made out to grant bail to them. The learned Special Judge did not consider the facts of the present case and without considering the facts and the legal position, granted bail following the judgment in Ravi Prakash Goel and Pradeep Dhond (supra), without looking to the difference in the facts of the cases. In view of the above facts and circumstances, I hold that the trial court committed serious error in granting bail to the accused persons and therefore, in the larger interest of justice, it is necessary to set aside the said order of bail.
The Apex Court in Criminal Appeal No.1845 of 2010 arising out of SLP(Criminal) No.4135 of 2010, lifted the stay granted by the Bombay High Court against the order of the Special Judge granting bail to the appellant before it. The Court noted thus:-
Leave granted.
On June 08, 2009, the appellant was found in possession of 25 kilo grams of Methamphetamine. He was arrested and made accused in a case instituted under Psychotropic Substances Act, 1985 ( for short, the Act ). It is undeniable that the aforesaid drug Methamphetamine, though included in the Schedule to the Act does not find mention in Schedule -I to the Rules framed under the Act.
The appellant was granted bail in this case by order dated March 03, 2010 passed by the Special Judge, NDPS Act, Mumbai. The learned Special Judge passed a detailed order referring to and relying upon several decisions of the High Court and of this Court in support of the order granting bail to the appellant-accused, subject of course to certain terms and conditions. One of the orders relied upon by the learned Special Judge was a bail order passed by the Bombay High Court granting bail to one Pradeep Dhond in a case on similar facts ( Pradeep Dhond v. Intelligence Officer, Narcotic and Control Bureau, Ballard Estate and Anr: Criminal Application No.6787/2005 disposed of by the Bombay High Court on February 07, 2006).
The Union of India challenged the order passed by the learned Special Judge granting bail to the appellant before the Bombay High Court. The High Court noted that its order granting bail to Pradeep Dhond was taken to this Court where the matter was referred to a larger Bench. On that ground, the High Court issued Rule on the application filed by the Union of India and stayed the operation of the bail order passed by the Special Judge with the result that the appellant continues to languish behind bars.
Mr. Amarendra Sharan, learned senior counsel, appearing for the appellant, submitted that the order of the Bombay High Court granting bail to Pradeep Dhond was not set aside by this Court and merely a reference to the larger bench was hardly a reason justifying denial of bail to the appellant indefinitely. In this regard, Mr. Sharan, pointed out that after issuing Rule, the disposal of the case of Pradeep Dhond by the larger bench of this Court and in the meanwhile had stayed the operation of the bail order passed by the Special Judge. There was no indication that the case of Pradeep Dhond pending before this Court would be disposed of at an early date. In other words, the appellant was left incarcerated indefinitely.
Mr. Sharan also invited our attention to a decision of this Court in State of Uttaranchanl vs. Rajesh Kumar Gupta, (2007) 1 SCC 355, in which the order of the Bombay High Court granting bail to Pradeep Dhond was referred with approval.
Mr. Mahesh Jain, learned ASG, appearing for the Union of India relied upon rule 66 of the NDPS Rules and submitted that the High Court rightly denied bail to the appellant.
In the facts of the case, we are unable to agree with the learned ASG and we are of the view that it was not proper, fair or correct for the High Court to stay the bail order passed by the Special Judge for the reason assigned in its order and to leave the matter indefinitely in the limbo. We, accordingly, lift the stay granted by the High Court against the order of the Special Judge granting bail to the appellant.
In the result the appeal is allowed.
19. It would be worthwhile noticing two conflicting judgments of the Division Bench of the Supreme Court in the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira reported in (2004) 3 SCC 549 and in the case of State of Uttaranchal vs. Rajesh Kumar Gupta reported in (2007)1 SCC 355.
In the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira (supra) the accused were found carrying larger quantity of Diazepam of 5 mg. tablets. The Apex Court was of the opinion that the seized article since was psychotropic substance and twin conditions for grant of bail were not satisfied, it cancelled the bail of the accused by holding thus:-
6.As observed by this Court in Union of India v. Thamisharasi and Ors.
(JT 1995 (4) SC 253) clause (b) of sub-section (1) of Section 37 impose limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not 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 at hand the High Court seems to have completely overlooked the underlying object of the Section 37. It did not take note of the confessional statement recorded under Section 67 of the Act. Description Serial No. 43 of the Schedule which reads as follows has not been kept in view.
Sl.
No. International Non-proprietary names Other Non-proprietary names Chemical Name
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43. Diazepam 70Chloro-1 3-dihydro-1
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In addition, the report of the Central Revenue Control Laboratory was brought to the notice of the High Court. The same was lightly brushed aside without any justifiable reason.
8. In the aforesaid background, this does not appear to be a case where it could be reasonably believed that the accused was not guilty of the alleged offence. Therefore, the grant of bail to the accused was not called for. The impugned order granting bail is set aside and the bail granted is cancelled. The accused respondent is directed to surrender to custody forthwith. Additionally it shall be open to the trial Court to issue notice to the surety and in case the accused does not surrender to custody, as directed, to pass appropriate orders so far as the surety and the amount of security are concerned. It is made clear that no final opinion on the merit of the case has been expressed in this judgment, and whatever has been stated is the background of Section 37 of the Act for the purpose of bail.
20. Whereas in the case of State of Uttaranchal vs. Rajesh Kumar Gupta (supra), the respondent was an Ayurvedacharya operating from two clinics of his. He though advertised that his medicines were prepared from herbal plants collected from the banks of river Ganges, he was alleged to have possessed medicine containing psychotropic substance and, thereby he was charged of addicting patients with such drugs. He was arrested and charges were framed against him under Section 8(2) of the NDPS Act.
In his application for bail, the Court allowed his application by holding that Section 37 would have no prima facie application in view of the exception contained in Section 8 and that the provision of Section 37 must be construed in a pragmatic manner. Rules 53 and 65 are held to be containing genus and other provisions following the same under chapter are held to be species thereof. The Apex Court took note of Section 76 and Section 9 recognizing the rules making provisions. It also took note of Rules 53, 64, 66, 67, 67A and has held thus:-
18. Chapter III of the 1985 Act, however, provides for prohibition, control and regulation. Section 8 provides for prohibition of certain operations in terms whereof no person shall make any cultivation of the plants mentioned in clauses (a) and (b) thereof or, inter alia, produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance. The said provision contains an exception which takes within its fold all the classes of cases preceding thereto. Use of the contraband for medical or scientific purposes is, therefore, excluded from the purview of the operation thereof.
However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder.
19. It has not been brought to our notice that 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under Section 9 of the 1985 Act read with Section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import, export and trans-shipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I appended thereto is prohibited. Such prohibition, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general prohibition contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67A provides for special provisions for medical and scientific purposes.
20. The general prohibitions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances.
21. The respondent admittedly possesses in Ayurveda Shastri degree. It is stated that by reason of a notification issued by the State of Uttar Pradesh dated 24-2-2003, the practitioners of ayurvedic system of medicines are authorised to prescribe allopathic medicines also. The respondent runs a clinic commonly known as Neeraj Clinic . He is said to be assisted by either other medical practitioners being allopathic and ayurvedic doctors. It is also not in dispute that only seven medicines were seized and they are mentioned in Schedules G and H of the Drugs and Cosmetics Rules.
xxx xxx xxx
22. It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Rules. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlordiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder.
23. In view of the fact that all the drugs, Items 1, 2,3,4,6 and 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Rules indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression medicinal purposes .
24. The exceptions contained in Section 8 of the 1985 Act must be judged on the touchstone of:
(i) whether drugs are used for medicinal purposes;
(ii) whether they come within the purview of the regulatory provisions contained in Chapters VI and VII of the 1985 Rules.
25. Chapter VII-A of the 1985 Rules which was introduced by the notification dated 25-6-1997 with effect from 27-6-1997 provides for special provisions regarding manufacture, possession, transport, import-export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes.
26. It, therefore, permits use of narcotic drugs and psychotropic substances for the purposes mentioned therein. Rule 67-A does not abrogate the provisions of Rule 53 or Rule 64 provided for in Chapter VI and VII of the 1985 Rules. They are in addition to the said provisions. It, however, contains some more restrictions. We are only concerned with clause (b) of Rule 67-A, in terms whereof the records concerning the acquisition of the substance and the details of their use in Form 7 of those Rules are to be mentioned.
27. Violation of clause (c) of Rule 67-A does not appear to have been alleged against the respondent. It was, however, stated at the Bar that the respondent has complied with the said provisions and, in fact, along with his bail application requisite documents have been furnished. Rule 67-A expressly permits use of certain drugs for limited medical requirements of a foreigner. It, however, appears that the sentence contained in clause (b) of Rule 67-A is not complete.
xxx xxx xxx xxx xxx xxx
36. In the instant case, we are of the opinion that Section 37 of the 1985 Act would prima facie have no application in view of the exception contained in Section 8 thereof read with the Rules.
37. The views which we have taken appear also to have been taken by the High Court of Delhi in Rajinder Gupta v. State as also the Bombay High Court in Pradeep Dhond v. Intelligence Officer, Narcotic & Control Bureau.
38. The respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses our morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly, in view of the fact that he has been in custody for a period of more than two years now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India.
In case of Union of India vs. Pradeep Shivram Dhond (supra), the High Court had granted bail to the accused, which came to be challenged before the Apex Court in the petition for Special Leave to Appeal (Criminal) No.4976 of 2006. The petition memo of this appeal is also brought on the record, which indicates that the accused persons were intercepted by the authority from boarding Ethiopian Airlines Flight and recovered from their baggage total of 17976 ampules of Fortwin injection of 1 ml each containing Pentazocine ( 30 mg) which is a psychotropic substance listed in the list of psychotropic substances specified in Schedule under Section 2(23) of the NDPS Act. Pentazocine is a Schedule-H prescription drug and according to the Special Judge the bail application could not have been granted in wake of stringent provisions of NDPS Act. However, the Bombay High Court was of the, prima facie, opinion that the Act itself is not applicable in the case of applicant accused and, therefore, he was granted bail. The Court emphasized on Rule 64, which speaks of general prohibition of transportation, importation, exportation etc. of the psychotropic substance specified in Schedule-I. The Court held that the reasons given in Criminal Miscellaneous Application No. 3295 of 2005 would squarely apply to the instant case.
At this stage, relevant findings of Bombay High Court in Criminal Miscellaneous Application No. 3295 of 2005 rendered in the case of in cancellation of bail proceedings would bear significance.
30. The Schedule contains list of pyschotropic substances and for our purpose Item No.92 and 106 thereunder are relevant. N.D.P.S. Rules, 1985 contain Chapter VII and Rule 64 thereunder reads thus:-
64. General Prohibition:- No person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I.
31. No person, on a bare perusal of this Rule can carry on the activities mentioned therein pertaining to the psychotropic substances specified in Schedule I. This Schedule I is schedule to the Rules. Admittedly, this schedule does not include or mention the psychotropic substance in question.
32. The issue, therefore, that falls for consideration is whether merely because the psychotropic substance included in the Schedule to N.D.P.S. Act is not mentioned or included in Schedule I to the Rules, then, prohibition contained in section 8(c) is attracted and the exception thereunder becomes inapplicable?
33. It is contended before me that for the purpose of definition of the term Psychotropic Substance , The Schedule to the Act has been framed. That is for the purpose of understanding the definition and only those substances which are mentioned and included in The Schedule to the Act would be Psychotropic Substance in the Act. Therefore, for the purpose of applicability of the Act to the Psychotropic substance in the question, the schedule is relevant. However, as to whether any opearation pertaining to this Psychotropic Substance is prohibited or not, the provision in that behalf is Section 8. If Section 8 prohibits the operations totally inasmuch as, they are not even saved by the exception carved out therein, then, indulging in these operations or continuing them would be an offence under the Act. For that purpose, NDPS Rules and Rule 64 in particular will have to be looked into. In other words, whether the operation is covered by the exception or not must be tested on the basis of the above said Rule and Schedule I to the Rules. Prima facie, this contention appears to be well founded.
34. A similar question or issue fell for consideration of Delhi High Court in the cse of Rajinder Gupta & Ors. vs. State, reported in 2005 (84) DRJ 19, and the learned Single Judge after noticing earlier decisions as also the above mentioned statutory provisions answered the same thus:-
Re:
Question No.2:
A.10:-
So, it is clear that buprenorphine hydrochloride is a psychotropic substance within the meaning of the N.D.P.S Act. But, would that in itself make the possession, sale or transportation of buprenorphine hydrochloride injections an offence under the N.D.P.S. Act, punishable under section 22 thereof? The answer is in the negative. IN the context of section 21 of the NDPS Act which is an analogous provision in respect of narcotic drugs , the Supreme Court, in the case of Sajan Abraham vs. State of Kerala (2004) 4 S.C.C. 441 held (page 43):-
7. It is thus apparent that what is made punishable under section 21 is possession, sale, purchase, etc. of the drugs and preparations mentioned therein in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder.
Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the limits specified under the rule and subject to such conditions as the rule may prescribe, such a person cannot be held guilty of the offence under section 21 of the Act if it is shown that his possession is not in contravention of such rule.
This would apply equally to the offence punishable udner section 22 of the NDPS Act in relation to psychotropic substance. This is clear as, in the case of Ouseph vs. State of Kerala (2004) 4 SCC 446, the Supreme Court had observed that If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed and in Hussain vs. State of Kerala (2000) 8 SCC 139 (pg. 142), the Supreme Court had already held that :- If it was psychotropic substance possession of the same would amount to an offence only if it was in contravention of section 8 of the Act. That section shows that no person shall possess any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder Therefore, an examination of Section 8 of the NDPS Act and the provisions of Chapter VII of the NDPS Rules is called for.
Section 8:-....
Section 8(c) which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale use etc. of any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the NDPS Act or NDPS Rules or orders made thereunder. This means that while there is a general prohibition against the manufacture, possession, sale, use etc. of an psychotropic substance, if the same is a medicine and is to be used for a medical purpose then the manner and extent of its manufacture, possession, sale use shall be as provided in the NDPS Act or NDPS Rules or orders made thereunder. We must remember that buprenorphine hydrochloride I.P. is a Schedule H drug within the meaning of the D & C Act and Rules. Its manufacture, sale etc. is regulated by the D & C Act and D & C Rules. Coming back to the N.D.P.S. Act, I find that in the case of a medication, which also happens to be a psychotropic substance within the meaning of the N.D.P.S Act, its extent and manner of use etc. would be governed by the other provisions of the NDPS Act or NDPS Rules.
A11. Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with Psychotropic Substances . Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribes the general prohibition. It provides that:-
No person shall manufacture, possess, transport, import inter-state, export inter-state, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. It is to be notied that this Schedule I is different to the Schedule to the NDPS Act. This Schedule I is appended to the NDPS Rules and is in two parts (1) Narcotic Drugs and (II) Psychotropic Substances. We are concerned with psychotropic substances. There is a list of 33 specific psychotropic substances with entry No.34 being Salt and preparations of above . It is significant to note that neither buprenorphine hydrochloride nor buprenorphine find mention in this list. This clearly means that Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules and, therefore, the general prohibition contained in Rule 64 of the NDPS Rules does not apply to it. Consequently, Rules 65 to 67, which also have reference to psychotropic substances specified in the same Schedule I, would also not be applicable in respect of Buprenorphine Hydrochloride. In this connection, it is pertinent to point out that there are several psychotropic substances which find place both in the schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example: Methaqualone, Delorazepam, Ketazolam, Loprazolam, Pipradrol, Tetrazepam. At the same time, there are others like Buprenorphine, Amphetamine, Bromazepam, Lorazepam, Phenobarbital and Pemoline which, though specified in the Schedule to the NDPS Act, do not find mention in Schedule I to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in Schedule I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule to the NDPS Act, are not part of the listed psychotropic substances in schedule of the NDPS Rules. It may be mentioned here that the Supreme Court, in the afore-mentioned decisions, was not called upon to examine this aspect of the matter, namely, whether Rule 66 of the NDPS Rules applied to all psychotropic substances or only those specified in Schedule I to the NDPS Rules. It is,therefore, open to this Court to consider and decide this aspect of the matter. Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in schedule I shall be in accordance with the conditions of licence granted under the D & C Rules and D & C Act. In other words, insofar as the psychotropic substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the D & C Act and Rules and not by the NDPS Act or NDPS Rules. Rule 66 relates to possession etc., of psychotropic substances. Sub-rule (1) thereof provides that no person shall possess "any psychotropic substance" for any of the purposes covered by the D & C Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under the NDPS Rules. The expression "any psychotropic substance" obviously has reference to those listed in Schedule I to the NDPS Rules. Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance does not find mention in Schedule I to the NDPS Rules, the prohibition qua possession contained in Rule 64 does not apply. That being the case, in respect of such a psychotropic substances which are included in Schedule I to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule I to the NDPS Rules. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited or regulated by the NDPS Rules and consequently by the NDPS Act. It being a Schedule H drug would fall within the rigours of the D & C Act and Rules."
This judgement of the Delhi High Court has been followed by High Court of Uttaranchal while deciding Criminal Bail Application No.917 of 2005. A copy of that judgement is also placed on record.
35.
Mr.Salvi and Mr.Thakare contended that the observations of Delhi High Court as also Punjab and Haryana High Court do not take into account the fact that if one is guilty of offences under D & C Act that by itself does not mean no penalty can be imposed for violation of N.D.P.S.Act. Area and field covered by these two enactments, according to them, is not identical. Therefore, the judgement of the Delhi High Court proceeds on an erroneous basis that whenever Psychotropic substances or drugs are manufactured, sold, exported, used, possessed and consumed for medical and scientific purpose, then all that can be done is to proceed against persons involved therein for breach or violation of the D & C Act alone and they cannot be proceeded or tried for breach or contravention of N.D.P.S. Act.
36. It is true that N.D.P.S. Act and D & C Act operate in separate area and field and breach of one or violation or contravention of one does not mean breach or contravention or violation of the other and in a given case, both can be breached and violated and for such violation, penalties can be imposed under both. However, it is equally well settled that whenever, a person is accused of commission of any offence that offence must be specifically provided as also the punishment. The act or ommission which is made an offence punishable by law must be specifically and clearly set out and provided. It is not the case of the applicant Union of India that there is any ambiguity in the relevant statutory provisions. What is contended is that the Act and the Schedule thereto is paramount and, therefore, the rules and the schedule thereto being subordinate to it, the Act and the Schedule to the Act must prevail. There is nothing in the provision which would indicate any conflict. As to what would prevail and what is subordinate or subservient is not the question at all when the provisions are unambiguous and clear. They have to be read as they are and nothing can be added or subtracted therefrom.
37. If section 8(c) had been worded differently, then possibly an argument could have been advanced that the schedule to the Act must prevail over Schedule I to the Rules. However, section 8(c) itself refers to not just the Act but rules and/or orders made thereunder. Admittedly, N.D.P.S. Rules are made under N.D.P.S. Act. Admittedly, they can and they do deal with the operations covered by section 8(c). Once an exception is carved out under section 8(c), by reference not just to the Act but to the Rules as well as orders framed thereunder and also to any provision which requires taking out of a licence and terms and conditions of such licence, then all this would have to be taken into account for finding out whether section 8 is attracted. In other words, whether section 8 has been violated or not must be considered in the light of not just the Act but the Rules, orders made thereunder and also by looking at the terms and conditions of the licence stipulated by N.D.P.S. Act. If section 8 is not attracted, then, admittedly, section 22 also becomes inapplicable as it also uses same phraseology. It is well settled that whenever Legislature uses identical words in the same Statute then, the intent is that they carry same meaning, unless intended otherwise. Here, the intention is clear. The prohibition in section 8 is pertaining to certain operations and if they are carried out contrary to the mandate of section 8, then such contravention becomes punishable under the Act. The punishment is in section 22 and that penal provision also contains identical phraseology. In other words, contravention of any provision of the Act or any rule or order made is punishable. In this case, contravention is of section 8 and, therefore, punishable.
However, section 8 itself has an exception and prohibition carved out therein would not then apply to the operation which is covered by the exception. It is well settled that the function of exception and proviso in Legislative drafting is to exclude something from the purview of the main section or to elaborately explain it. The exception which is part and parcel of section 8(c) must be given the effect as intended by the Legislature.
38. So given, as far as Psychotropic substances in the present case are concerned, operations pertaining to them are permitted because Schedule I to the Rules do not include them at all. That these substances are included in the schedule to the Act is not of any relevance because one has to see everything viz., the Act, the Rules and order made thereunder together and in a harmonious manner. It is well settled that the Psychotropic substance is included in the Schedule to the Act but it is not included in the Schedule I to the Rules, then operations covered by section 8 cannot be said to be contravening provisions of the Act and, therefore, punishable. That is how, these provisions have been interpreted by Delhi High Court and earlier by Punjab and Haryana High Court. Their views have my respectful concurrence .
23. In light of the aforementioned discussions and the decisions of the Apex Court pressed into service by the applicant herein the only question that needs to be answered by this Court is as to whether the aforementioned authorities of the Apex Court and those of Bombay and other High Courts can apply to the case of the applicant thereby entitling regular bail to him?
24. Learned advocate Mr. Saiyed has pointed out that in Criminal Appeal No.1405 of 2010 (Union of India vs. Jagdish Singh and Anr.), the Apex Court has clearly noted that mere reference to Larger Bench of the order of the Apex Court granting bail to Pradeep Shivram Dhond cannot justify denial of bail to the accused indefinitely, and therefore, when all the three psychotropic substances found from the accused are not finding mention in Schedule-I of the NDPS Rules framed under the Act, can the applicant cannot be denied the bail by this Court invoking provision of Section 8 read with Section 21 of the NDPS Act.
25. Before answering the question in wake of factual matrix of the applicant, contention of learned advocate Mr. Buch shall have to be considered as far as Rule 53 and 53-A are concerned, Rule 53-A was inserted on 10.8.1993 which read as thus:-
53. General prohibition.-
Subject to the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Sch.I is prohibited:
PROVIDED THAT nothing in this rule shall apply in case the drug substance is imported into or exported out of India subject to an import certificate or export authorisation issued under the provision of this Chapter and for the purposes mentioned in Chapter VII-A. 53-A. Prohibition of export.-
(1) Subject to the provisions of sub-rule (2), no person shall export any of the narcotic drugs or psychotropic substances or preparation containing any of such narcotic drugs or psychotropic substances specified in Sch.II to the countries or to the region of such country specified therein.
(2) Notwithstanding anything contained in sub-rule(1) above, the Narcotics Commissioner may authorise export of specified quantities of such narcotic drug or psychotropic substance or preparation containing such narcotic drug or psychotropic substance on the basis of special import licence issued by the competent authority of the country mentioned in Sch.II which intends such import by way of issance of special import licence. The shipment of the consignment so allowed shall be accompanied by a copy of such special import licence duly endorsed by the Narcotics Commissioner.
25.1 It does not permit export of any narcotic drug or psychotropic substance or any preparation specified in Schedule-II to the countries or to the region of such country specified therein except with the authorization of the Narcotics Commissioner, who can permit specified quantities on the basis of Special Import Licence issued by the competent authority of the country mentioned in Schedule-II.
25.2 It is a fact that none of the above referred authorities even referred to Rule 53A of 1985 Rules. The decision of the Apex Court rendered in the case of State of Uttranchal vs. Rajesh Kumar Gupta (supra), of course, has referred to both Rules 53 and 64 as genus and rest of the rules as species. Yet when it is found that this provision which is introduced in the year 1993 and which clearly prohibits any export of psychotropic substances or narcotic drugs or any preparation also containing such drug or substance specified in Schedule-II to the country or to the regions of such countries specified therein, For instance, Methamphetamine is at Sr.No.30 in Schedule-II and the countries or region to which the export of this substance is prohibited are given column No.5.
26. Allegedly, in the instant case, the applicant was going to export it to UK and to the USA. Neither of these countries fall under the list of countries where export is prohibited. Likewise in case of Alprazolam and Ketamine Hydrochloride none of these countries find place. Therefore, it can be said that what is specially prohibited under Rule 53A is the export to the countries specified in Column No.5 of Schedule-II against those specified substances. That of course cannot automatically give any licence to any person not to observe the Rules contained in Chapter VII A. This Chapter governs special provisions for medical, scientific and training purpose and permits use of psychotropic substance as drug as mentioned therein.
27. In the case of the present applicant, therefore, what needs to be regarded in light of the discussion above is the factum that the applicant has worked as a courier and has allegedly attempted illegal export of the substances by hiding the packets as ostensibly containing the packets of flour Maida snacks etc. He has also admitted in his statement that these substances were psychotropic substances and he was aware of that fact. He had no licence admittedly issued under drugs and Cosmetics Act nor was he given any authorization to possess these substances.
28. Although from the facts of any of the cases where the accused applicant had some connection with medicinal preparations or scientific research, only question, therefore, requires to be answered by this Court is as to whether the interpretation of law in the aforementioned authorities, in absence of reference of these three psychotropic substances in Schedule-I of the Rules would entitle the applicant the grant of bail?
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, Metamphatamine 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 psychotropis 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.
36. Petitioner has in the past indulged into such similar offences and has changed the very legal entity of firm/business. His release will invite, in its all probabilities, recurrence and also send wrong signal in the society. With no reasonings available in the order of release of his co-accused and role of the applicant being very grave, his application on none of these counts deserve any favourable consideration. The same is, therefore, dismissed.
(MS SONIA GOKANI, J.) SUDHIR Page 44 of 44