Bombay High Court
Union Of India vs Ravindran Krarapaya @ Ravi & Ors on 19 November, 2010
Author: J.H. Bhatia
Bench: J.H. Bhatia
1 cri.applns.3618-10, 5640-2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 3618 OF 2010
Union of India ...Applicant
vs.
Ravindran Krarapaya @ Ravi & Ors. ...Respondents
WITH
CRIMINAL APPLICATION NO. 5640 OF 2009
Union of India ...Applicant
vs.
Xie Jing Feng @ Richard & Anr. ...Respondents
Appearance in above matters :-
Mr.Mandar Goswami, Public Prosecutor and Special
Counsel for the Appellant Union of India.
Mr.Anil Lalla i/b. M/s.Lalla & Lalla for Respondent
Nos.1 and 2 and for respondent no.1 in Cri.Appln.No.
5640/2009.
Mr.Y.M. Nakhwa, APP for Respondent No.3 and for
Respondent No.2 in Cri.Appln.No.5640/2009.
CORAM : J.H. BHATIA, J.
DATED : NOVEMBER 19, 2010
ORAL JUDGMENT :-
1 Both these applications are filed by the ::: Downloaded on - 09/06/2013 16:37:27 ::: 2 cri.applns.3618-10, 5640-2009 Narcotic Control Bureau through the Union of India for cancellation of bail granted to the accused persons by the learned Judge by two different orders.
2 Prosecution case in brief is that on 25th November, 2008, Intelligence Officer S.K. Sinha received intelligence that two Malaysian Nationals viz. Ravindran Karapaya @ Ravi, accused no.1 and Gunasekaran Pillay @ Guna, accused no.2 residing at flat no.601, building no.3, Mercury Co-operative Society, Evershine Millennium Paradise, Sector-2C, Thakur Village, Kandiwali, had stored substantial quantity of Methamphetamine, a psychotropic substance and Ephedrine which is a controlled drug in the said premises. It was also learnt that the said contrabands were procured by them from the factory of M/s.Sakha Organics Pvt.Ltd. situated at village Mokshi, Taluka Savali, District Vadodara in Gujarat State. On the basis of that information, officers of NCB along with panchas raided the said ::: Downloaded on - 09/06/2013 16:37:27 ::: 3 cri.applns.3618-10, 5640-2009 premises being flat no.601. At that time, none of the accused were present. In their absence, search of the flat was taken and 7 kg. Of Methamphetamine and 5 kg. Of Ephedrine in the form of white powder were recovered. Some glass/plastic bottles were also recovered from the containers containing the said chemicals. All these contraband articles were seized and sealed under panchnama. It was revealed that on 21st November, 2008 i.e. about four days before the above seizure, accused nos.1 and 2 were arrested by Ahmadabad Zonal Unit of NCB in connection with seizure of Methamphetamine at Vadodara. At the same time, Xie Jing Feng @ Richard, who is accused no.3, was also arrested at Vadodara by NCB in connection with the seizure of Methamphetamine. All the three accused were also taken into custody in connection with the seizure of Methamphetamine and Ephedrine from the flat no.601, Kandiwali (East), Mumbai. On 25th November, 2008 itself, their statements were recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ::: Downloaded on - 09/06/2013 16:37:27 ::: 4 cri.applns.3618-10, 5640-2009 referred to as the NDPS Act ). Their statements revealed that accused no.3 used to deal with export of the contraband drugs and accused nos.1 and 2 used to assist him for which they were getting monthly salary. It was also revealed that accused no.1 Ravindran Karapaya and accused no.3 Xie Jing Feng had brought 7 kg. Of Methamphetamine and 5 kg. of Ephedrine from a factory at Vadodara to Bombay and stored the said material in the flat no.601.
Methamphetamine is a psychotropic substance while Ephedrine is a controlled substance within the meaning of NDPS Act and accused persons committed offences punishable under Sections 22 and 25-A of the NDPS Act. In the said case being Crime No. 11/2008, Intelligence Officer filed a complaint before the Special Court which came to be registered as NDPS Special Case No.71/2009. Accused no.3 was granted bail on 26th November, 2009 and accused nos.
1 and 2 were granted bail on 5th March, 2010 by the learned Special Judge, mainly relying upon the judgment and order passed in Criminal Application ::: Downloaded on - 09/06/2013 16:37:27 ::: 5 cri.applns.3618-10, 5640-2009 No.3295/2005 (M.V. Henry vs. Raviprakash Goyal) and Pradeep Dhond vs. NCB, Mumbai, decided by the learned Single Judge of this Court. The learned Additional Sessions Judge held that prima facie the provisions of NDPS Act are not applicable and therefore, the embargo contained in Section 37 of the NDPS Act for grant of bail will also not be applicable.
3 Prosecution has challenged the grant of bail by the Special Judge on the ground that the Methamphetamine is a psychotropic substance as defined in Section 2(xxiii) as it is shown at Serial No.19 in the Schedule under Clause (xxiii) of section 2 of the NDPS Act. It is contended that Section 8(c) provides that no person shall 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 ::: Downloaded on - 09/06/2013 16:37:27 ::: 6 cri.applns.3618-10, 5640-2009 and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder. Section 22 provides punishment for contravention in relation to psychotropic substances. It is also pointed out that as per the table notified by the Government of India as per sub-clause (viia) and (xxiiia) of Section 2 of the NDPS Act, small quantity of Methamphetamine, also known as Metamfetamine, is 2 grams while commercial quantify is 50 grams. In this case, 7 kg. Of Methamphetamine in powder form was recovered. It is contended that in view of the large quantity of psychotropic substance under Section 22(c), the offence is punishable with imprisonment for not less than 10 years and which may also extend to 20 years with fine. It is also contended that Ephedrine is the controlled substance as per the provisions of Section 9(a) of the Act and contravention of provisions of Section 9(a) in respect of controlled substance is also punishable under Section 25-A with rigorous imprisonment for a term which may extend to ::: Downloaded on - 09/06/2013 16:37:27 ::: 7 cri.applns.3618-10, 5640-2009 10 years and also with fine. It is contended on behalf of the prosecution that the learned trial court committed error in holding that the provisions of NDPS Act are not applicable and that no offence under the said Act is made out.
4 On the other hand, the learned Counsel for the accused persons vehemently contended that even though Methamphetamine is shown as psychotropic substance in the Schedule annexed with the NDPS Act, it is not shown in the Schedule I as per Rules 53 and 64 of the NDPS Rules, 1985 and therefore, under the Rules, the general prohibition imposed by Rules 53 and 64 are not applicable. He also contended that it a drug in Schedule X under the Drugs and Cosmetics Act, 1940 and therefore, the provisions of NDPS Act will not be applicable. He contended that assuming, but not admitting, that the said substance was in possession of the accused persons, still it does not amount to an offence and in support of this, he placed reliance upon several authorities, ::: Downloaded on - 09/06/2013 16:37:27 ::: 8 cri.applns.3618-10, 5640-2009 particularly, the judgment of Delhi High Court in Rajinder Gupta vs. The State, judgment of this High Court in M.V. Henry, Intelligence Officer vs. Ravi Prakash Goel & Another (Criminal Application No. 3295/2005) and Pradeep Dhond vs. Intelligence Officer, Narcotics Control Bereau (Criminal Application No.6787/2005), Riyaz s/o. Razak Memon & Anr. vs. The State of Maharashtra (Criminal Application No.3196/2010) and Supreme Court judgment in State of Uttaranchal vs. Rajesh Kumar Gupta, 2007 (1) Crimes 6 (SC). According to him, when the said Methamphetamine is a scheduled drug under the Drugs and Cosmetics Act and when it is not included in Schedule I under the Rules, the provisions of Section 8 and 22 of the NDPS Act will not be applicable and no offence is made out. He contended that the trial court was justified in granting bail to the accused persons relying on the judgment of this Court in M.V. Henry, Intelligence Officer vs. Ravi Prakash Goel & Another (supra).
::: Downloaded on - 09/06/2013 16:37:27 :::9 cri.applns.3618-10, 5640-2009 5 Section 2(xxiii) defines psychotropic substance. It reads thus :-
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.
Methamphetamine
is shown at entry no.19 in the
Schedule of the psychotropic substances and
therefore, there can be no dispute that
Methamphetamine is the psychotropic substance as
defined in Section 2(xxiii). Section 2(viia)
provides that commercial quantity, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette and similarly, clause (xxiiia) provides that small quantity, in relation to narcotic drugs and psychotropic substances, means ::: Downloaded on - 09/06/2013 16:37:27 ::: 10 cri.applns.3618-10, 5640-2009 any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. The Central Government has issued a Notification under sub-clause (viiia) and (xxiiia) of section 2 and Methamphetamine, also known Metamfetamine, is at Entry no.159 of the said table and as per column 6, the commercial quantity means the quantity more than 50 grams. In the present case, 7 kg. of Methamphetamine was allegedly seized from flat no.601 and thus, undoubtedly, it is huge commercial quantity.
6 Section 8(c) of the NDPS Act reads as under
:-
8. Prohibition of certain operations No person shall -
(a) xxxxxxxxxxxx
(b) xxxxxxxxxxxx
(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, ::: Downloaded on - 09/06/2013 16:37:27 ::: 11 cri.applns.3618-10, 5640-2009 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:
7 From this it is clear that no person shall produce, manufacture, possess, sell, purchase, transport, import inter-State, export inter-State, import into or export from India or tranship any narcotic drug or psychotropic substance except for medical or scientific purposes and when it is produced, manufactured, possessed, sold, purchased, transported, warehoused, used, consumed, imported or exported inter-State or in India or outside India, all that has to be done in the manner and to the extent provided by the said Act, Rules or Orders that may be issued and also subject to the requirements of the licence, permit or authorisation which may be issued.::: Downloaded on - 09/06/2013 16:37:27 :::
12 cri.applns.3618-10, 5640-2009 8 Section 22 is a penal provision and is in relation to psychotropic substance. It reads thus :-
Section 22. Punishment for contravention in relation to
psychotropic substance.-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 lakh rupees but which may extend to two lakh rupees:
::: Downloaded on - 09/06/2013 16:37:27 :::13 cri.applns.3618-10, 5640-2009 Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
9 From the language of Section 22, it becomes clear that whoever manufactures, possesses as well as purchases, transports, imports inter-State, export inter-State or uses any psychotropic substance shall be punished if any such act is done in contravention of any provisions of the NDPS Act OR any rule OR order made under the Act OR in contravention of any conditions of the licence granted to him. Further if the provisions of Section 8(c) and Section 22 are read together, it would be clear that there is a complete ban on the production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export into India or transhipment of any narcotic drug or psychotropic substance, except for the medical or scientific purposes and where any person ::: Downloaded on - 09/06/2013 16:37:28 ::: 14 cri.applns.3618-10, 5640-2009 is found to be in possession, etc. of any such psychotropic substance and if he does not claim that he came in possession etc. for the medical or scientific purposes by virtue of the provisions of the Act, Rules, Orders, etc., he will be treated to have contravened the provisions of Section 8(c) and that contravention is punishable under Section 22.
To bring the case under exception, the initial burden will naturally lie on the accused to show that he had come in possession etc. for the medical or scientific purposes. If he claims that he has done any such act for medical or scientific purposes, it will be for him to show that he had done it in the manner and to the extent provided by the provisions of the Act, Rules or orders thereunder. If he fails to show that he had done any such act for medical or scientific purposes and as per the provisions of the Act, he will be liable to be convicted and sentenced under Section 22. Further if a person having done any such act under the provisions of the Act and but if contravenes any ::: Downloaded on - 09/06/2013 16:37:28 ::: 15 cri.applns.3618-10, 5640-2009 Rule or Order or if contravenes the terms and conditions of licence, permit or authorisation, still he is liable to be convicted under Section 22.
In view of the provisions of Section 105 of the Evidence Act, when a person is accused of an offence, the burden of proving the existence and the circumstances bringing the case within any special exception or proviso contained in any law defining the offence is upon him and Court shall presume the absence of such circumstances. As noted above, Section 8(c) prohibits a person from producing, manufacturing, possessing, selling, purchasing, transporting, warehousing, using, consuming, importing and exporting inter-State, import into India and export from India or transhipment of drug and psychotropic substance. Having prohibited such operations, Section 8 provides for exception where the person claims that he had done any such operation for medical or scientific purposes. In view of the provisions of Section 105 of the Evidence Act, the burden will lie on that person to ::: Downloaded on - 09/06/2013 16:37:28 ::: 16 cri.applns.3618-10, 5640-2009 prove circumstances and the facts which would bring his case within the exception.
10 In the present case, from the material collected by the NCB, prima facie, it appears that the accused nos.1, 2 and 3 were in possession of flat no.601 referred above. During the search of the said flat undertaken on 25th November, 2008, 7 kg.
of Methamphetamine and 5 kg of Ephedrine were found.
The said material-psychotropic substance and control substance came to be seized as per the procedure. It was revealed that the three accused persons were already arrested on 21st November, 2008 in connection with seizure of Methamphetamine at Vadodara in the State of Gujarat by Zonal Unit of NCB at Vadodara. After the Intelligence Officers received the said information, they took custody of all the three accused persons in the present case.
They were interrogated and during the interrogation, it was revealed that accused no.3 Xie Jing Feng, who is a Chinese National was dealing with the export of ::: Downloaded on - 09/06/2013 16:37:28 ::: 17 cri.applns.3618-10, 5640-2009 psychotropic substance from India. Accused Nos.1 and 2 were the Malaysian Nationals and were living in India and were assisting accused no.3 in these operations, for certain monthly payments made to them by accused no.3. The accused had nowhere taken a plea that they or any other person had obtained licence, permit, authorisation to purchase, possess, store, transport, import, export said Methamphetamine which is psychotropic substance, for medical or scientific purposes. Thus, it is clear that the accused persons have nowhere taken any plea nor any document or material is produced by them to show that they had come in possession of Methamphetamine for medical or scientific purposes to bring their case within the scope and ambit of exception to Section 8. If they do not claim to have come in possession and to have stored Methamphetamine for scientific and medical purposes as per any licence, permit or authorisation, such possession or storage by them is clearly in contravention of Section 8 of the Act and in view of ::: Downloaded on - 09/06/2013 16:37:28 ::: 18 cri.applns.3618-10, 5640-2009 the provisions of Section 22, the accused having done any such operation in contravention of the provisions of the Act, they will be liable to be convicted and sentenced.
11 As the accused have not taken any plea nor they have produced any document or material on record to bring their case within the scope and ambit of the exception to Section 8, consideration of the rules framed under the Act would, in fact, be unnecessary. However. because the learned Counsel for the respondent/accused has relied on certain authorities contending that Methamphetamine is not shown in the Schedule I to the Rules and therefore, the provisions of NDPS Act are not applicable, it will be necessary to deal with the relevant rules and the authorities relied on by the learned Counsel.
12 Section 76(1) of the Act provides that subject to other provisions of the act, the Central ::: Downloaded on - 09/06/2013 16:37:28 ::: 19 cri.applns.3618-10, 5640-2009 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 ::: Downloaded on - 09/06/2013 16:37:28 ::: 20 cri.applns.3618-10, 5640-2009 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 ::: Downloaded on - 09/06/2013 16:37:28 ::: 21 cri.applns.3618-10, 5640-2009 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 ::: Downloaded on - 09/06/2013 16:37:28 ::: 22 cri.applns.3618-10, 5640-2009 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 column no.5, names of the countries are mentioned to which, that particular narcotic drug and psychotropic substance cannot be exported.
Methamphetamine is 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 ::: Downloaded on - 09/06/2013 16:37:28 ::: 23 cri.applns.3618-10, 5640-2009 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 III 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 II 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 ::: Downloaded on - 09/06/2013 16:37:28 ::: 24 cri.applns.3618-10, 5640-2009 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 ::: Downloaded on - 09/06/2013 16:37:28 ::: 25 cri.applns.3618-10, 5640-2009 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 got appropriate licence, permit or authorisation either under these Rules or under the Drugs and Cosmetics Rules, 1945. At the cost of 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.
15 In Rajinder Gupta vs. State (supra), the ::: Downloaded on - 09/06/2013 16:37:28 ::: 26 cri.applns.3618-10, 5640-2009 accused-applicant was a partner in the firm known as M/s.A.D.S. Associates. It was alleged that as a partner of the said firm, he had sold 2,61,000 ampoules of Buprenorphine Hydrochloride Injections under the brand name Bunogesic which he had allegedly received from M/s.Pharma Deal Agencies, New Delhi. No recovery of the said Buprenorphine Hydrochloride Injections was made from the petitioner. On the basis of the record, it was revealed that he had sold those ampoules. Each injection was of 2 ml each bearing the branded name Bunogesic and each ml contained Buprenorphine Hydrochloride IP equivalent to Buprenorphine Hydrochloride 0.3 mg and water for injection. It means each ampoules contained 0.6 mg Buprenorphine Hydrochloride. Two questions were posed before the Delhi High Court, first, whether Buprenorphine Hydrochloride was a psychotropic substance and if yes, whether Chapter VII of the NDPS Rules could be applicable. It was held that Buprenorphine Hydrochloride is a psychotropic substance as shown ::: Downloaded on - 09/06/2013 16:37:28 ::: 27 cri.applns.3618-10, 5640-2009 in the Schedule to the Act. However, it was also schedule H Drug and it could be manufactured under the licence under the Drugs and Cosmetics Rules, 1945 and the said drug was manufactured by and was received from M/s.Pharma Deal Agencies by the petitioner. It was held that the petitioner was carrying on business in partnership and that he had received the injections which were manufactured by another company under the licence and therefore, the provisions of NDPS Act would not be applicable. In the result, the accused were granted bail. It may further be noted that the Delhi High Court also calculated the total quantity of the Buprenorphine Hydrochloride on the basis of the ampoules which were seized on the basis of certain disclosures and it was found that it was much less than the commercial quantity of 20 grams. In fact, in view of this, the case would not fall within the limits of commercial quantity to which the rigours of Section 37 NDPS Act are applicable and the bail application could be considered as per the provisions of Section ::: Downloaded on - 09/06/2013 16:37:28 ::: 28 cri.applns.3618-10, 5640-2009 437 or 439 of the Cr.P.C. The view taken by the Delhi High Court in Rajinder Gupta (supra) was followed by learned Single Judge of this Court in M.V. Henry, Intelligence Officer vs. Raviprakash Goyal (supra). In that case also, according to the prosecution, one Aslam Mohammed Shaikh was to receive a consignment of Norphazine Injections containing Buprenorphine, which is a psychotropic substance. On information, in presence of the panch witnesses and Aslam Mohammed Shaikh, search of the premises of transporter M/s.Chavla Carriers was carried out and the NCB recovered and seized 11950 ampoules of the said psychotropic substance. Said samples were manufactured by M/s.Gopish Pharma, a firm carrying on business in New Delhi. Accused Ravi Prakash Goel was a proprietor of the said firm. The said ampoules were transported from M/s.Gopish Pharma i.e. from the accused Ravi Prakash Goel to M/s. G and G Medicine Company which was the sole distribution agent for M/s.Gopish Pharma. In that case, Aslam Mohammed Shaikh was granted bail on the ::: Downloaded on - 09/06/2013 16:37:28 ::: 29 cri.applns.3618-10, 5640-2009 ground that the quantity of the psychotropic substance was less than commercial quantity. On the same ground, Ravi Prakash Goel was also granted bail. That order was challenged by the Intelligence Officer before this Court. This Court (Coram : S.C. Dharmadhikari, J.) concurred with the view taken by Delhi High Court in respect of the Rules and held that the said drug, though a psychotropic substance, was also a schedule H drug for which the licences are given under the Drugs and Cosmetics Rules, 1945.
In the result, the application for cancellation of bail was rejected. It is material to note that in paras 2 and 4 of that judgment, the learned Judge repeatedly stated that the observations and findings in the said order were only for the disposal of the bail application and those observations are only prima facie and shall not prevent the court below from recording its finding on merits at the time of the conclusion of the trial. The learned Judge further observed that the prohibition contained in the statute must be seen in the context of ::: Downloaded on - 09/06/2013 16:37:28 ::: 30 cri.applns.3618-10, 5640-2009 individual operations and the psychotropic substance, in question. This judgment was again followed by the learned Judge in Pradeep Dhond vs. Intelligence Officer (supra). In Riyaz s/o. Razak Memon vs. State of Maharashtra (Criminal Application No.3196/2010) (supra), it appears that alprazolam and diazepam powders were seized from the accused.
The order shows that it was argued that the said substances do not come within the ambit of Section 8(c) of the NDPS Act and that the said substance seized from the manufacturer therein may fall within the ambit of Drugs and Cosmetics Act and therefore, NDPS Act could not be applicable. The learned Judge referred to the judgments of Supreme Court in Ouseph vs. State of Kerala, (2004) 4 SCC 446, Hussain vs. State of Kerala (2000) 8 SCC 139 and State of Uttaranchal vs. Rajesh Kumar Gupta 2007 (1) SCC 355 and held that the provisions of Section 8(C) are not applicable. Details of the facts of that case are not revealed in the judgment.
::: Downloaded on - 09/06/2013 16:37:28 :::31 cri.applns.3618-10, 5640-2009 16 In State of Uttaranchal vs. Rajesh Kumar Gupta, 2007(1) Crimes 6 (SC), the accused was Ayurvedacharya and he was operating from two clinics viz. Neeraj Clinic Pvt.Ltd and Dr.B.S. Gupta Medical Charitable Society. He was assisted by eight other Medical Practitioners. During the raid, 70 kg. Pure Phenobarbitone was recovered. It was also revealed that from his two clinics, huge quantity of the said drug was sold and sent to the customers by post during the years 2001 to 2005. In that case also, the Supreme Court dealt with different rules and as he was a Medical Practitioner and he claimed that he was in possession of the said drugs for the medical purposes, the case would be covered by the Drugs and Cosmetics Act and Rules thereunder and therefore, even though the said drug was also psychotropic substance within the meaning of Schedule to the NDPS Act, still the provisions of Section 8 would not be applicable. The Supreme Court upheld the grant of bail and rejected the appeal preferred by the State.
The Supreme Court also noted that the Delhi High ::: Downloaded on - 09/06/2013 16:37:28 ::: 32 cri.applns.3618-10, 5640-2009 Court and Bombay High Court in the above referred two cases had taken the same view. It may be noted here that in Customs New Delhi vs. Ahmadalieva Nodira, 2004 Criminal Law Journal 1810 wherein Diazepam of 5 mg. tablets were seized. Three Judge Bench of the Supreme Court had set aside the bail granted to the accused. It may be noted that in Pradeep Dhond (supra), the Union had preferred appeal before the Supreme Court and in the order dated 20th April, 2007, the Supreme Court noted the judgment in Collector of Customs, New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 rendered by three Judge Bench and subsequent judgment of two Judge Bench in the State of Uttaranchal vs. Rajesh Kumar Gupta (supra) and in view of the provisions of Section 80 of the NDPS Act, Their Lordships observed that the matter needs to be placed before three Judge Bench. The learned Counsel for the parties informed that the matter is still not decided by the larger Bench of the Supreme Court. The reference of the matter to the larger Bench indicates the ::: Downloaded on - 09/06/2013 16:37:28 ::: 33 cri.applns.3618-10, 5640-2009 difference of opinion by the three Judge Bench in the earlier case and the two Judge Bench in the later case and therefore, Their Lordships of the Supreme Court felt that the matter needs to be considered by the three Judge Bench again, apparently to sort out the difference of opinion. It is not necessary for this Court to make any comment about the same. In my opinion, on facts none of the above authorities including State of Uttaranchal vs. Rajesh Kumar Gupta (supra) is applicable to the facts of the present case. In each of these cases, certain ampoules of injections were manufactured by some pharmaceutical company having certain licence under the Drugs and Cosmetics Act and Rules. In Rajesh Kumar Gupta (supra), he was a Medical Practitioner running two clinics and was also helped by other Medical Practitioners. According to him, he was in possession of the said drugs for medical purposes. Thus, in each of the cases, the accused had tried to bring the case within the ambit and scope of exception to Section 8 and the Courts had ::: Downloaded on - 09/06/2013 16:37:28 ::: 34 cri.applns.3618-10, 5640-2009 come to the conclusion, for the purpose of deciding the bail applications prima facie, that the case was not covered by the provisions of Section 8 read with Section 22 of the NDPS Act. Therefore, either bail was granted or confirmed.
17 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 of 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.
::: Downloaded on - 09/06/2013 16:37:28 :::35 cri.applns.3618-10, 5640-2009 Therefore, in view of the provisions of Section 8 read with 22 of the NDPS Act, prima facie, the accused had committed 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 substances from 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, ::: Downloaded on - 09/06/2013 16:37:28 ::: 36 cri.applns.3618-10, 5640-2009 in the larger interest of justice, it is necessary to set aside the said order of bail.
18 Therefore, Criminal Application No. 5640/2009 as well Criminal Application No.3618/2010 are hereby allowed. The impugned orders granting bail to the accused nos.1 to 3 are hereby set aside.
The bail granted to accused nos.1 and 2 by the Special Judge was stayed by this Court and they are still in custody in this case. They will continue to be in custody till the end of the trial. As far as accused no.3 Xie Jing Feng is concerned, he was granted bail and he has been released in this case but it is reported that he is in custody in different case at Ahmadabad. As his bail is cancelled, he shall be taken into custody in this case also.
19 In view of the fact that Criminal Application Nos.3618/2010 and 5640/2009 are allowed, Criminal application NO.537/2010 filed by the ::: Downloaded on - 09/06/2013 16:37:28 ::: 37 cri.applns.3618-10, 5640-2009 accused persons for vacating the stay does not survive and stands disposed of accordingly.
(J.H. BHATIA, J.) ::: Downloaded on - 09/06/2013 16:37:28 :::