Department Of Customs vs Hemant Kumar on 12 September, 2012

[Cites 15, Cited by 7]

Delhi High Court

Department Of Customs vs Hemant Kumar on 12 September, 2012

1. Present petition has been filed for cancellation of bail granted to the respondent vide order dated 26th February, 2008 passed by learned Special Judge, NDPS, New Delhi in case titled as 'Custom v. Pankaj Kumar and others'. Learned Special Judge, NDPS, New Delhi while granting bail to the respondent has observed as under:-

Crl.M.C. 2110/2008 Page 1 of 6

"Considering the facts that all accused in this case are charged for offence under Section 9-A read with Section 25- A and 29 of NDPS Act and co-accused have already been granted bail. Since rigour of Section 37 NDPS Act is not applicable to the facts of the present case, applicant-accused Hemant Kumar is also admitted to bail on furnishing personal bond in the sum of Rs.25,000/- with one surety each in the like amount. Bail application stands disposed of accordingly."

(emphasis supplied)

2. Learned counsel for the petitioner states that as the respondent is alleged to have been found in possession of a controlled substance, Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') is attracted and the respondent is liable to be punished under Section 25A of the NDPS Act.

3. He further submits that rigours of Section 37 of the NDPS Act would be applicable to the present case. In this connection, he has drawn my attention to a judgment of this Court in Rizwan Ahmed v. Directorate of Revenue Intelligence 2012 LawSuit (Del) 729 wherein a learned Single Judge of this Court has observed as under:-

14. In view of my above discussion, it comes out to be that Ephedrine Hydrochloride though was not a narcotic drug or psychotropic substance, but was a controlled substance and the export of the same was prohibited as per the Order of Central Government made under Section 9 of the NDPS Act. There is Crl.M.C. 2110/2008 Page 2 of 6 apparently violation of all the clauses i.e. (3), (4), (6) of the said Order of 1993.

15. Further, since the offence was apparently seen to have been committed under Section 25A which is punishable with rigorous imprisonment for a term which may extend to 10 years and also with fine which may extend to Rs.1 lac, the petitioner is also not entitled to be released on bail in view of Section 37 (1)(b) of NDPS Act. The provisions contained in this section are made applicable and operative "notwithstanding anything contained in Cr.P.C.".

The limitation of granting bail specified in clause (b) of sub section (1) of Section 37 are in addition to the limitations under Cr.PC or any other law for the time being in force for grant of bail. Having regard to the entire factual matrix, it is not possible for this Court to record satisfaction that there are reasonable ground to believe that the petitioner is not guilty of the offences for which he has been charged and that he is not likely to commit any offences while on bail. Therefore, the petitioner cannot be granted bail in view of provisions of Section 37(i)(b) of NDPS Act also."

4. Sections 2(viid), 9A, 25A and 37(1) of the NDPS Act are reproduced hereinbelow:-

"2. Definitions.--In this Act, unless the context otherwise requires,--

xxx xxx xxx (viid) "controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance........

                           xxx           xxx           xxx

      9A.     Power to control and regulate controlled substances--

(1) If the Central Government is of the opinion that, Crl.M.C. 2110/2008 Page 3 of 6 having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. .........

                           xxx           xxx          xxx

      25A.    Punishment for contravention of orders made under

section 9A.--If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees.

xxx xxx xxx

37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are Crl.M.C. 2110/2008 Page 4 of 6 reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

(emphasis supplied)

5. A combined reading of Sections 37, 2(viia) and 2(viid) of NDPS Act, prima facie indicate that Section 37 is not in relation to the controlled substance.

6. Even in the reply filed by the Customs Department before the Special Judge, NDPS, New Delhi, it has been admitted in para 4 that Section 37 of the NDPS Act is not applicable to the present case.

7. Since the aforesaid judgment of Rizwan Ahmed (supra) is contrary to the explicit language of Section 37 of the NDPS Act, the same is per incuriam.

8. At this stage i.e. after the order had been dictated, learned counsel for the petitioner states that the goods seized from the respondent are not controlled substances but are psychotropic substances.

9. This, to say the least, is strange as Special Judge, NDPS, New Delhi had proceeded on the basis that the respondent had been charged with Crl.M.C. 2110/2008 Page 5 of 6 possession of a controlled substance chargeable under Section 9A read with Section 25A of the NDPS Act and there is no averment or ground in the petition that the seized substance is not a controlled substance or that Sections 9A and 25 A are not applicable. In fact, the present petition is supported by an affidavit of an officer of the Customs Department and has been pending in this Court for the last more than four years.

10. However, in the interest of justice, one opportunity is given to the petitioner to amend its petition, if it so desires, subject to payment of costs of Rs.50,000/-. Half the costs shall be paid to the respondent and the other half shall be deposited with the Delhi High Court Legal Services Committee within two weeks.

List on 09th November, 2012.

MANMOHAN, J SEPTEMBER 12, 2012 NG Crl.M.C. 2110/2008 Page 6 of 6

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