Bombay High Court
Gudipati Subramaniam vs Union Of India And Anr on 17 May, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22486
-BA4210-23-4160-23-223-24.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 4210 OF 2023
Gudipati Subramaniam ...Applicant
Versus
Union of India and anr. ...Respondents
WITH
BAIL APPLICATION NO. 4160 OF 2023
Ahmed Saleh Hasan alias Aldosky ...Applicant
Versus
Union of India ...Respondent
WITH
BAIL APPLICATION NO. 223 OF 2024
Ravindra Rajaram Kavthankar ...Applicant
Versus
Union of India and anr. ...Respondents
Mr. Taraq Sayed, a/w Sana Khan, Ashwini Achari, Alisha
Parikh and Bhumika Gada, for the Applicant in
BA/4210/2023 and BA/4160/2023.
Dr. Sujay Kantawala, a/w Karan Jain, Ankit Dhindale,
Avinash Limbola, for the Applicant in BA/223/2024.
Mr. Amit Munde, SPP, a/w Jai Vohra, for the Custom
Department/Respondent No.1.
Ms. Gauri Rao, APP, for the State/Respondent No.2.
Mr. Vipul Kumar, SIIB (X), IO, ACC, Mumbai, present.
CORAM: N. J. JAMADAR, J.
Reserved On: 9th MAY, 2024
Pronounced On: 17th MAY, 2024
ORDER:-
1. The applicants, who are arraigned in NDPS Special Case No.1506 of 2023, arising out of CR No.CIU/INV- 23/2022-23/ACC(G), registered with Central Intelligence Unit, 1/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC for the offences punishable under Sections 22(c), 23(c), 27A, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act, 1985") have preferred these applications to enlarge them on bail.
2. On the basis of the intelligence input, one export consignment covered under Shipping Bill No.7996704 dated 23 rd February, 2023 of M/s. First Wealth Solution destined to Yasoub Adam Hamdoun, Atalbara (A), Juba, South Sudan with declared description in shipping bill and in export invoice as 'Tamol-X-225' quantity as 21 packages containing 10.5 lakhs tablets, having gross weight 729 kg. and net weight 720 kg., was intercepted by the Central Intelligence Unit (CIU) Air Cargo Complex, Sahar, (ACC) and kept on hold, on 25 th February, 2023, for 100% examination by the officers of CIU, ACC, Mumbai.
3. A search panchnama was drawn on 27 th February, 2023 by the officers of CIU in the presence of the panch witnesses. The description on each boxes as well as on the inside packages was calcium carbonate 225 mg. Quantity found was 9,99,500 tablets of Tamol-X. The goods were thus found to be mis- declared in terms of quantity and description. Thus the consignment was seized under seizure memo. Samples were 2/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC drawn and sent for analysis to CRCL Lab. The test was positive for Tramadol, a psychotropic substance.
4. In the backdrop of the aforesaid broad prosecution case, post investigation, the applicants came to be arrested. The role attributed to each of the applicants as borne out by the prosecution complaint and the material on record, can be summarised as under:
(a) Gudipati (A1) was the Chief Operating Officer of M/s.
First Wealth Solution (First Wealth), the consignor. Gudipati (A1) had placed the purchase order with M/s. Safe Formulation Pvt. Ltd. to procure Tramadol Hydrochloride with brand name, 'Tamol-X'. Gudipati (A1) forged the documents and invoices raised by M/s. Safe Formulation Pvt. Ltd. under which the said drug was supplied for export purpose only, to change the description from Tramdol Hydrochloride to Calcium Carbonate.
(b) Initially Gudipati (A1) had sent export documents for Shipping Bill No.7996704 through WhatsApp to Ravindra Kavthankar (A5), the Courier Manager of M/s. Galaxy Freight Forwarder (Galaxy) with the correct description of the goods as 'Tamol-X-225' tablets, Tramadol Hydrochloride-225 tablets. On the next day i.e. 22nd February, 2023 Gudipati (A1) forwarded another export invoice No.FWS-EX-0017 with the same details 3/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC except the name of the product. The description of the product was changed from Tapentadol Hydrochloride-225 tablet to Calcium Carbonate 225 tablets.
(c) Gudipati (A1) was the mastermind of the plan to disguise the Tramadol into some other pharmaceutical product such as calcium carbonate to obviate the export authorization for Tramadol Hydrochloride under Rule 58 of the NDPS Rule, 1985. Gudipati (A1) alongwith Ahmed Saleh Hasan alias Aldosky (A4), an Iraqi National, and G. Rajani Kanth (A2), GM, Finance, First Wealth conspired to export Tramadol without obtaining export authorization from CBN. Investigation revealed Gudipati (A1) was involved in hawala transactions in relation to the purchase and sale of Tramadol tablets, a psychotropic substance.
(d) Ahmed Saleh Hasan alias Aldosky (A4) placed orders for supply of Tramadol on behalf of his foreign clients with Gudipati (A1). Ahmed Saleh Hasan alias Aldosky (A4) introduced many foreign clients to Gudipati (A1) for supply of Tramadol disguised as some other pharmaceutical product, and collected commission from Gudipati (A1) for the same. There were financial transactions between Gudipati (A1) and Ahmed Saleh Hasan alias Aldosky (A4). In the search at the residence of 4/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC Ahmed Saleh (A4) Rs.60,50,000/-, in Indian currency, and US$ 1000, in denomination of 100 US$, alongwith an executive diary containing the details of the transactions between Gudipati (A1) and Ahmed Saleh (A4) were found and seized. Gudipati (A1) and Ahmed Saleh (A4) were in regular touch with each other and the WhatsApp chats between Gudipati (A1) and Ahmed Saleh (A4) revealed the conspiracy Gudipati (A1) and Ahmed Saleh (A4), alongwith other accused, had hatched to export the psychotropic substance.
(e) Ravindra Kavthankar (A5), the prosecution alleges, was in constant touch with Gudipati (A1). The change in the description of the product proposed to be exported was such that Ravindra Kavthankar (A5) must have questioned the same in his capacity as the freight forwarder. The WhatsApp chat between Gudipati (A1) and Ravindra (A5) and the fact that Ravindra (A5) had got extra commission for each consignment from Gudipati (A1) indicates that Ravindra (A5) was privy to the alleged conspiracy. The prosecution thus alleges Ravindra (A5) has also actively conspired with the other co-accused and was instrumental in transportation of Tramadol for illegal export thereof and thereby committed the offences punishable under Sections 22(c), 23(c), 28 and 29 of the NDPS Act, 1985. 5/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
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5. In the backdrop of the aforesaid nature of the accusation qua each of the applicants, I have heard Mr. Taraq Sayed, the learned Counsel for the applicants Gudipati Subramaniam (A1) and Ahmed Saleh Hasan alias Aldosky (A4), in BA/4210/2023 and BA/4160/2023; respectively, Mr. Sujay Kantawala, the learned Counsel for the applicant Ravindra Kavthankar (A5), in BA/223/2024, Mr. Amit Munde, the learned Special PP for the respondent No.1 CIU, and Ms. Rao, the learned APP, for the State.
6. Mr. Sayed, the learned Counsel for the applicant Gudipati (A1) and Ahmed Saleh (A4), advanced a two-pronged yet diverse submission qua Gudipati (A1) and Ahmed Saleh (A4). First, indisputably First Wealth has a licence to trade in drugs. The only question that warrants consideration is, whether First Wealth could have exported the drug in question i.e. Tramadol. An endeavour was made by Mr. Sayed to urge that the very premise of the prosecution that the drug in question could not have been exported without the authorization as envisaged by Rule 58 of the NDPS Act, 1985, is incorrect. It was submitted that once First Wealth has the licence to possess and sell the drugs, in conformity with the provisions contained in Section 8(c) of the NDPS Act, 1985, the export in question would be 6/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC governed by the provisions contained in the proviso to Rule 53 of the NDPS Rules, 1985. Since the export was for medicinal purposes, there was no requirement of the export authorization envisaged by Rule 58 of the NDPS Rules, 1985.
7. Mr. Sayed candidly submitted that there is prima facie material to show that First Wealth, of which Gudipati (A1) is the COO, made an attempt to export the drug Tramadol. However, if no authorization, as envisaged by Rule 58 of the NDPS Rules, 1985 is warranted, the substratum of the prosecution case gets dismantled and Gudipati (A1) deserves to be released on bail.
8. As regards Ahmed Saleh (A4), Mr. Sayed would urge that the role attributed to Ahmed Saleh (A4) is only that of introducing the alleged foreign purchasers of Tramadol to Gudipati (A1). The role of possessing and transporting and/or attempting to export the psychotropic substance thus cannot be attributed to Ahmed Saleh (A4). The material on record, according to Mr. Sayed, does not indicate that Ahmed Saleh (A4) was a confederate in the alleged conspiracy to export the psychotropic substance.
9. Mr. Kantawala, the learned Counsel for Ravindra (A5), submitted that the provisions contained in Section 8(c) of NDPS Act, 1985 are not at all attracted qua Ravindra (A5). As a freight 7/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC forwarding agent the role of the Ravindra (A5) was that of reserving the space for freight. A strenuous endeavour was made by Mr. Kantawala to draw home the point that Ravindra (A5) had forwarded the boxes which were received from Gudipati (A1) to CHA. Ravindra (A5) was totally unaware of the contends of the product to be exported. In fact, Gudipati (A1) categorically states that the Ravindra (A5) was unaware of the fact that the consignment contained Tramadol.
10. Mr. Kantawala would further urge that the fact that at times some amount came to be credited to the account of Ravindra (A5), instead of the Galaxy, by itself, is not sufficient to establish the nexus between Ravindra (A5) and the alleged offences. Therefore, Ravindra (A5), who has been in custody for one year and three months, deserves to be enlarged on bail.
11. As against this, Mr. Munde, the learned Special PP for respondent No.1, submitted that a huge quantity of 4,224 kg. of psychotropic substance was recovered. There is overwhelming material to indicate that the applicant had entered into a conspiracy to export Tramadol disguised as calcium carbonate. Thus to salvage the position, a submission is sought to be canvassed on behalf of Gudipati (A1) that export authorization was not warranted.
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12. Mr. Munde would urge the provisions of Rule 58 of the NDPS Rules, 1985 are explicitly clear. The submission that since First Wealth held a licence to possess and sell the drugs for medicinal purposes, it was authorized to also export the psychotropic substance, is preposterous, submitted Mr. Munde. An effort was made by Mr. Munde to take the Court through the transcript of the WhatsApp chat between Gudipati (A1) and Ahmed Saleh (A4) and Gudipati (A1) and Ravindra (A5) and the statements of the witnesses which, according to Mr. Munde, clearly indicate that an attempt was made to export a huge quantity of the psychotropic substance in pursuance of conspiracy. Therefore, none of the applicants deserve to be enlarged on bail, submitted Mr. Munde.
13. On facts prima facie there is adequate material to show that an attempt was made to export Tramadol, a psychotropic substance, sans authorization envisaged by the NDPS Rules, 1985. The prosecution case that attempt to export the psychotropic substance disguised as another pharmaceutical preparation is prima facie borne out by the two export invoices which were forwarded by Gudipati (A1) to Ravindra (A5). The first invoice forwarded on 21st February, 2023, described the product as Tamol-X-225 tablets - Tapentadol Hydrochloride-225 9/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC tablets. The second export invoice which was allegedly forwarded by Gudipati (A1) to Ravindra (A5) on 22 nd February, 2023 furnished the description of the product as Tamol-X-225; Calcium Carbonate 25 mg. tablets, instead Tapentadol Hydrochloride-225 tablet. Rest of the contents were the same as the first invoice forwarded by Gudipati (A1) to Ravindra (A5). In addition, there is prima facie sufficient material to show that the said change in the description of the product was not innocuous but with a view to obviate the requirement of authorization under the Rules, 1985 and also to overcome the import restrictions in the destination country.
14. In this view of the matter, the aspect of prima facie complicity of the applicants for the alleged offence deserves consideration. From the perspective of claim for bail, the submission of Mr. Sayed, premised on inapplicability of the authorization envisaged by Rule 58 of the NDPS Rules, 1985 merits consideration is as it may bear upon the entitlement for bail not only of Gudipati (A1) but also Ahmed Saleh (A4) and Ravindra (A5).
15. The relevant part of Section 8(c) of the NDPS Act, 1985 reads as under:
"8. Prohibition of certain operations.--10/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC No person shall--
.......
(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:"
16. Dealing with any narcotic drug or psychotropic substance in any manner is prohibited except for medical and scientific purposes and in the manner and to the extent provided by the provisions of the Act, the rules or order made thereunder. The Parliament has taken care to clarify that if there is a requirement of licence, permit or authorization for use of any narcotic drug or psychotropic substance for medical or scientific purpose then such use shall be in accordance with the terms and conditions of such licence, permit or authorization.
17. On first principles, the use of the terms 'licence', 'permit' or 'authorization;, disjunctively, indicates that these terms have not been used interchangeably. It is a well recognized principle of statutory interpretation that the Parliament uses the words for a definite purpose. A provision cannot be interpreted in such a manner that a particular word is rendered redundant or surplus. If the submissions sought to be canvassed on behalf of 11/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC accused Nos.1 and 4 that a 'licence' subsumes in its fold the "authorization" envisaged by Rule 58 of the NDPS Rules, 1985, the Parliament would not have used the terms licence and authorization disjunctively. On a plain construction of Section 8(c) of the NDPS Act, 1985 export of a psychotropic substance sans licence, permit or authorization under the governing rules or orders is expressly prohibited.
18. If there is any doubt, the same stands dispelled by the provisions contained in Chapter VI of the NDPS Rules, 1985 under the heading "Import, Export and Transhipment of Narcotic Drugs and Psychotropic Substance'. Rule 53 reads as under:
"53. General prohibition.- Import into and export out of India of the narcotic drugs and psychotropic substances is prohibited except with an import certificate or export authorization issued under the provision of this Chapter;
Provided that import into India or export out of India of the narcotic drugs and psychotropic substances specified in Schedule I of these rules shall be for the purpose mentioned in Chapter VIIA"
(emphasis supplied)
19. The relevant part of Rule 58 reads as under:
"58. Application for export authorization.-
(1) No narcotic drug or psychotropic substance shall be exported out of India without an export authorization issued by the issuing authority in respect of the consignment, in Form No.5 appended to these rules.
........"
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20. Rule 53 declares in clear and unambiguous terms that import into and export out of India of narcotic drugs and psychotropic substance is prohibited, except with a import certificate or export authorization issued under the provisions of the said Chapter.
21. The proviso to Rule 53, on which stress was laid by Mr. Sayed, does not advance the cause of the submission sought to be canvassed by him. The proviso mollifies the rigor of the prohibition contained in a main part of Rule 53 only for the purposes mentioned in Chapter VIIA of the NDPS Rules, 1985, which contains a fasciculus of provisions regarding manufacture, possession, transport, import, export, purchase and consumption of narcotic drugs and psychotropic substances for medical, scientific, and training purposes. Therefore, the proviso to Rule 53 cannot be so construed as to dilute the rigor of the prohibition contained in main part of Rule 53 to the extent that no authorization as such is required if a narcotic drug or psychotropic substance is exported for medical purposes. Such a construction would run counter to the object of prohibiting import into and export out of the India of narcotic drugs and psychotropic substances sans regulation. 13/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
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22. Sub-rule (1) of Rule 58 also emphasis the mandatory character of the said Rule. The necessity of export authorization is underscored not only by using the word, 'shall' but also by employing the legislative command in a negative form by using the word. 'No' at the beginning of sub-rule (1).
23. Negative words are ordinarily construed as prohibitory and used as a legislative device to make a statute imperative. A useful reference in this context can be made to a decision of Supreme Court in the case of Rangku Dutta alias Ranjan Kumar Dutta vs. State of Assam1, wherein while construing the provisions contained in Section 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, which began with the word 'No', the Supreme Court observed, inter alia, as under:
"18. It is obvious that Section 20-A(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression "No" after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command. Reference in this connection can be made to G.P. Singh's Principles of Statutory Interpretation, 12th Edn. at page 404, the learned author has stated:
"........ As stated by CRAWFORD: "Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience. As observed by SUBBARAO, J.: 'Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative".
Section 80 and Section 87-B of the Code of Civil Procedure, 1908, section 77 of the Railways Act, 1890; section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the 1 (2011) 6 Supreme Court Cases 358.
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-BA4210-23-4160-23-223-24.DOC Stamp Act, 1899; section 108 of the Companies Act, 1956; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972, the proviso to section 33(2)(b) of the Industrial Disputes Act, 1947 (as amended in 1956); section 10A of Medical Council Act, 1956 (as amended in 1993), and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not les than three months' notice is also for the same reason mandatory.' We are in respectful agreement with the aforesaid statement of law by the learned author."
(emphasis supplied)
24. In the case of A. K. Roy and another vs. State of Punjab and others2 construing the provisions contained in Section 20(1) of Prevention of Food Adulteration Act, 1954, which began with the expression, 'No prosecution for an offence under this Act', the Supreme Court enunciated the principle of construction of the statutory provisions as under:
"10. .......... The use of the negative words in s. 20(1) "No prosecution for an offence under this Act .. shall be instituted except by or with the written consent of" plainly make the requirements of the section imperative. That conclusion of ours must necessarily follow from the well- known rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law, 6th edn., p. 263 in his own terse language:
"If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding."
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting s. 20(1) was to 2 (1986) 4 Supreme Court Cases 326.
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-BA4210-23-4160-23-223-24.DOC confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise."
(emphasis supplied)
25. I am therefore not inclined to accede to the submissions on behalf of Gudipati (A1) and Ahmed Saleh (A4) that there was no requirement of export authorization as envisaged by Section 8(c) read with Rule 58 of the NDPS Rule, 1985. This inference, effectively seals the fate of the application for bail of Gudipati (A1). Since there is overwhelming material to point the complicity of Gudipati (A1), the interdict contained in Section 37 of the NDPS Act, 1985 operates with full force and vigor.
26. The endeavour of Mr. Sayed to draw home the point that the role of Ahmed Saleh (A4) is restricted to that of being a person, who introduced the foreign purchasers of the psychotropic substance to Gudipati (A1) does not merit acceptance. There is material to indicate that Ahmed Saleh (A4) had not only arranged the foreign purchasers but also received hefty commission. Ahmed Saleh (A4), as is evident from the transcript of the WhatsApp chats, adviced Gudipati (A1) not to write Tramadol and also suggested the name of the product to be used as a disguise for the psychotropic substance i.e. calcium carbonate or magnesium citrate and Lion photo (chats dated 8/10/2020 to 18/2/2022).
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27. Suffice to note that the transcript of the WhatsApp chats between Gudipati (A1) and Ahmed Saleh (A4) indicates that they were in regular touch, a number of consignments were exported in that fashion and there were even disputes between Gudipati (A1) and Ahmed Saleh (A4) over sharing of the commission. It is also imperative to note that a huge cash haul of Rs.60,50,000/-, in Indian currency, and US$ 1000, in denomination of 100 US$, was recovered from the possession of Ahmed Saleh (A4).
28. Prima facie there is sufficient material to demonstrate that Ahmed Saleh (A4) was a confederate in conspiracy to export the psychotropic substance. There is no substantial probable cause to believe that Ahmed Saleh (A4) may not be guilty of the offences for which he has been arraigned. Rigor of Section 37 of the NDPS Act, 1985 stands attracted.
29. On the aspect of the complicity of Ravindra (A5), the prosecution banks on the statements of Ravindra (A5) and Gudipati (A1) recorded under Section 67 of the NDPS Act, 1985. Secondly, the transcript of WhatsApp conversation between Gudipati (A1) and Ravindra (A5) is pressed into service. Third circumstance arrayed against Ravindra (A5) is the credit of amounts to the account of Ravindra (A5) by Gudipati (A1). The prosecution alleges that the aforesaid material would 17/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC cumulatively indicate that Ravindra (A5) was well awre about the modus operndi adopted by Gudipati (A1) to export the Tramadol disguised as some other pharmaceutical product.
30. I have carefully perused the material on record qua Ravindra (A5). As noted above, initial export invoice was changed by Gudipati (A1) disguising the product to be exported as calcium carbonate. All these shipping documents were forwarded by Gudipati (A1) to Ravindra (A5). That constitutes the bulk of the data exchanged by and between Gudipati (A1) and Ravindra (A5).
31. In this context, it is imperative to note, in paragraphs 213.3 (page 384) of the prosecution complaint with reference to the change in the description of the product in the export invoice, the complainant alleges, "accused Shri Ravindra R. Kavthankar, without questioning the modification of description in above said invoice, forwarded the same to the CHA firm M/s. Jafferali Laljee & Son for further filing of Shipping Bill 7996704 dated 23.02.2023."
32. The complainant thus alleges Ravindra (A5) ought to have questioned the change in the description of the product to be exported. The allegation cannot be said to be unfounded. However, the pivotal question that may warrant adjudication is, 18/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC was there an element of criminality on the part of the Ravindra (A5)?
33. For an answer, albeit prima facie, the statements of Gudipati (A1) and Ravindra (A5) recorded under Section 67 of the NDPS Act, 1985 are of no assistance to the prosecution. In view of the pronouncement of the Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu3 those statements cannot be used as confession at the trial for the offences punishable under NDPS Act, 1985. Nor such statement made by one accused constitutes a legal evidence against co-accused. On the contrary, in the case at hand, the statement of Gudipati (A1) recorded under Section 67 of the Act, 1985 on 10 th March, 2023 prima facie rules out involvement of Ravindra (A5). I may hasten to add that, the Court may not be understood to have drawn an inference on the basis of the statements under Section 67 of the NDPS Act, 1985. It is just to emphasise that even if the statements under Section 67 are considered, they may not advance the cause of the prosecution to the extent desired.
34. It has to be seen whether there is independent material de hors the statements under Section 67 of the NDPS Act, 1985. The transcript of the WhatsApp conversation, as noted above, 3 (2021) 4 Supreme Court Cases 1.
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-BA4210-23-4160-23-223-24.DOC does not indicate prima facie that the Ravindra (A5) was privy to the alleged conspiracy to export. The change in the description of the product to be exported ought to have aroused inquisitiveness on the part of Ravindra (A5). However, in the absence of any other material, failure to question Gudipati (A1), as alleged by the prosecution, may not in itself suggest mens rea on the part of Ravindra (A5).
35. The credit of an amount of Rs.1,20,000/- during the period 7th April, 2021 to 30th August, 2022, when there is material to show that, in the past, as well, the consignments were entrusted to Galaxy by First Wealth without any concomitant circumstance may not sustain an inference that Ravindra (A5) was cognizant of the attempt to export psychotropic substance. The proportion of the said amount to the value which Gudapati (A1) had received in the past and might have received by exporting the consignment in question, would also be a matter which may bear upon the element of criminality.
36. In the aforesaid view of the matter, whether Ravindra (A5) was privy to the alleged offences prima faice appears debatable. Having regard to the limited role of a courier manager of a Freight Forwarder Company, and the material which is pressed 20/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC into service against Ravindra (A5), in my considered view, the rigor contained in Section 37 of the NDPS Act, 1985 may not be attracted qua Ravindra (A5). The Court is not informed that the applicant Ravindra (A5) has antecedents. I am, therefore, persuaded to allow the application of Ravindra (A5).
37. Hence, the following order:
:ORDER:
(i) BA/4210/2023 filed by Gudipati Subramaniam, (A1) and BA/4160/2023 filed by Ahmed Saleh Hasan alias Aldosky (A4),stand rejected.
(ii) BA/223/2024 filed by Ravindra Rajaram Kavthankar stands allowed.
(iii) Ravindra Rajaram Kavthankar, the applicant in BA/223/2024, be released on bail in NDPS Special Remand No.1506 of 2023, arising out of CR No.CIU/INV-
23/2022-23/ACC(G), registered with Central Intelligence Unit, on furnishing a P.R. Bond in the sum of Rs.1,00,000/- with one or two sureties in the like amount to the satisfaction of the learned Special Judge.
(iv) The applicant shall mark his presence at the Central Intelligence Unit, between 10.00 am. to 12.00 noon, on 21/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC first Monday of every alternate month, for the period of three years or till conclusion of the trial, whichever is earlier.
(v) The applicant shall not tamper with the prosecution evidence. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any police officer.
(vi) On being released on bail, the applicant shall furnish his contact number and residential address to the investigating officer and shall keep him updated, in case there is any change.
(vii) The applicant shall not lave India without prior permission of the learned Special Judge.
(viii) The applicant shall regularly attend the proceedings before the jurisdictional Court.
(ix) By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for bail and they may not be construed as an expression of opinion on 22/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::
-BA4210-23-4160-23-223-24.DOC the guilt or otherwise of the applicants and the co- accused the trial Court shall not be influenced by any of the observations made hereinabove.
Applications disposed.
[N. J. JAMADAR, J.] 23/23 ::: Uploaded on - 17/05/2024 ::: Downloaded on - 02/06/2024 19:54:14 :::