Karnataka High Court
Shekappa vs Directorate Of Revenue Intelligence on 17 January, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No.12347/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 12347 OF 2023
BETWEEN
1. SHEKAPPA
S/O. SRI CHANDRAPPA,
35 YEARS, R/AT. 1-7-78, NAGAVI ROAD,
EK-KAMAN, JAFFAR GUNG,
CHITAPUR, GULBARGA - 585211.
NOW RESIDING AT THE TREE BY
PROVIDENT, SYNDICATE BANK LAYOUT,
ANDHARAHALLI MAIN ROAD,
BANGALORE - 560091.
2. RAJESH R
S/O. H RAMACHANDRA REDDY,
51 YEARS, DOCTOR BY PROFESSION,
R/AT. NO 12, I MAIN ROAD, UAS LAYOUT,
BHOOPASANDRA, BANGALORE-560094.
Digitally
VIJAYALAXMI signed by
M BHAT VIJAYALAXMI
M BHAT
...PETITIONERS
(BY SRI HASHPATH PASHA, SR. COUNSEL FOR
SRI KARIAPPA N.A., ADVOCATE)
AND
DIRECTORATE OF REVENUE INTELLIGENCE
BANGALORE ZONAL UNIT,
NO. 8(2), P, OPP. BDA COMPLEX,
HBR LAYOUT, KALYANNAGAR,
BANGALORE - 560043.
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR FOR DRI
HIGH COURT OF KARNATAKA - 560001)
...RESPONDENT
(BY SRI AMIT ANAND DESHPANDE, ADVOCATE)
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CRL.P No.12347/2023
THIS CRL.P FILED U/S 439 CR.PC BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY
BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN FILE
NO.DRI/BZU/S-IV/ENQ-08 (INT-NIL) 2023 ON THE FILE OF
RESPONDENT DRI, BENGALURU FOR THE OFFENCE P/U/S 8(C),
12, 21(C), 23(C), 24, 26, 28 OF NDPS ACT AND RULE WHICH IS
PENDING IN SPL.C.C.NO.2150/2023 ON THE FILE OF THE HONBLE
XXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.01.2024, COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER
1. Accused Nos.1 and 2 in Spl.C.C.No.2150/2023 pending before the Court of XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru registered for the offences punishable under Sections 8(c), 12, 21(c), 23(c), 24, 26, 28 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') are before this Court under Section 439 Cr.P.C.
2. Heard the learned counsel for the parties.
3. It is the case of the prosecution that on 04.04.2023, the Senior Intelligence Officer of the Directorate of Revenue Intelligence, Bengaluru Zone Unit (hereinafter referred to as 'DRI') had gathered credible -3- CRL.P No.12347/2023 information that certain consignments were being exported from Kempegowda International Airport, Bengaluru containing psychotropic substance, in violation of the provisions of NDPS Act. Based on such information, he had intercepted the export consignments at FED- Express transportation and Supply Chain Private Ltd., situated at Kempegowda International Airport, Bengaluru. Upon open examination of the said consignments in the presence of independent witnesses, it was found that the said consignments contained various types of medicinal tablets which were booked by a Company known as M/s.Rashe Life Sciences Private Ltd., Bengaluru. The said tablets were seized under a mahazar on 04.04.2023. On 05.04.2023, raid was conducted by DRI officers to the office of the Company known as M/s.Rashe Life Sciences Private Ltd., Bengaluru and another retail shop by name M/s.Rashe Pharma in RT Nagar at Bengaluru. Under two different mahazars, the DRI seized the medicinal tablets which included Alprazolam, Tramodal HCL and Paracetmol (Neurotom) tablets. The petitioners herein who are the directors of the Company were taken to custody on -4- CRL.P No.12347/2023 05.04.2023 and case was registered against them in proceedings bearing F.No.DRI/BZU/S-IV/ENQ-08/(INT- NIL)/2023 and thereafter their statements were recorded. During the course of investigation, it was revealed by the accused that, accused No.1 who was earlier working as a medical representative had established the Company known as M/s.Rashe Life Sciences Private Ltd., Bengaluru and the Partnership Firm known as M/s.Rashe Pharma and accused No.2 was one of the director of the Company and partner of the Firm. Investigation in the case was completed and complaint was filed before the jurisdictional Court on 20.09.2023 and the case is now pending before the Trial Court in Spl.C.C.No.2150/2023. The bail application filed by the petitioners before the Trial Court in Crl.Misc.No.9743/2023 was rejected on 23.11.2023. Therefore, they are before this Court.
4. Learned Senior Counsel appearing for the petitioners submits that the Company of which the petitioners are the directors has a licence under Sections 20 and 21 of the Drugs and Cosmetics Act, 1940 (for -5- CRL.P No.12347/2023 short, 'the Act of 1940'). The manufacturer of the tablets which have been seized in the present case is admittedly having manufacturing licence and there is exception for use of Psychotrophic Substance for the purpose of manufacturing medicines. He submits that the quantity of Psychotrophic Substance in the tablets that were seized from the courier office is a small quantity. In respect of the tablets which are seized from the registered office of the Company and the Pharmacy, the offences under the provisions of NDPS Act does not get attracted. The licence is required only for the purpose of exporting the tablets. He submits that investigation in the case is completed and charge sheet has been filed, till date quantitative analysis of the seized contraband articles, is not done. He refers to Rule 14 of The Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal), Rules 2022 (for short, 'NDPS (Seizure) Rules 2022') in this regard and submits that even though investigation in the case is complete, till date quantitative analysis report is not on record. In support of his contention, he has placed reliance on the judgment of the Hon'ble Supreme Court in -6- CRL.P No.12347/2023 the case of Bharat Chaudhary Vs.Union of India reported in 2021 SCC OnLine SC 1235.
5. In reply, learned counsel for the respondent, who has filed statement of objections and has opposed the bail application, submits that, for the purpose of exporting medicines which contain Psychotropic Substance, licence/permission under Rule 58 of The Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short, 'NDPS Rules 1985') is mandatory. There is sufficient material on record to show that even prior to the registration of the present case, accused persons were involved in exporting similar drugs to various countries. He submits that actual weight of manufacturing drug including the neutral material is required to be considered while determining the quantity of Psychotropic Substance as the Psychotropic Substance used in manufacturing drug form integral part of the drug. He further submits that since the contraband articles seized in the present case is of commercial quantity, in view of the rigour under Section 37(1)(b) of the NDPS Act, petitioners are not entitled to be -7- CRL.P No.12347/2023 enlarged on bail. In support of his argument, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of Union of India through NCB., Lucknow Vs.Mohammed Nawaz Khan reported in (2021) 10 SCC 100 and also in the case of State of Kerala Vs. Rajesh reported in (2020) 12 SCC 122. Accordingly, he prays to dismiss the petition.
6. The material on record would go to show that based on the intelligence report, officer of DRI had intercepted the export consignments at FED-Express transportation and Supply Chain Private Ltd., situated at Kempegowda International Airport, Bengaluru on 04.04.2023, which was booked in the name of the Company of which the petitioners herein are the directors. From the seizure mahazar prepared on 04.04.2023 in the office of the Courier Company in respect of the 4 consignments, which were booked in the name of Company, in which the petitioners are directors, it is seen that, it contained different medicinal tablets. The tablets by name Alprazolam was objectionable article, since it -8- CRL.P No.12347/2023 contained Psychotropic Substance. As per the mahazar dated 04.04.2023, 800 Alprazolam tablets were seized which totally weighed 144 grams. According to the learned senior counsel for the petitioners, quantity of Psychotropic Substance-Alprazolam found in 800 tablets, weighed only 0.08 grams. As per Entry No.178 of the Schedule provided under the NDPS Act 5 grams of Alprazolam is considered as small quantity and 100 grams of Alprazolam is considered as commercial quantity. Mahazar drawn on 05.04.2023 in the office of Courier Company is in respect of seizure of tablets known as Nitrozep-10, which contained Psychotropic Substance known as Nitrazepam. Totally 250 tablets of Nitrozep-10 was seized under the mahazar dated 05.04.2023 and total weight of the tablets was 45 grams. According to the learned senior counsel for the petitioners, total quantity of 2.5 grams of Nitrazepam, which is a Psychotropic Substance, was used for manufacturing 250 tablets. Entry No.221 of the Schedule provides that 20 grams of Nitrazepam is considered as small quantity and 500 grams of Nitrazepam is considered as commercial quantity.
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7. Under the other mahazars, which are part of the complaint filed after investigation, it is averred that the seizure is from the registered office of the Company and from the retail shop of the pharmacy. Undisputedly the manufacturer of the tablets which are seized under these mahazars have a licence under the Act of 1940 for the purpose of manufacturing said tablets. It is also not in dispute that the company of which the petitioners are the directors, has licence under Sections 20 and 21 of the Act of 1940 and therefore, it cannot be said that possession or storage of the aforesaid tablets in the registered office of the Company or in the retail shop of the Pharmacy would prima facie attract the offence under the NDPS Act.
8. Rule 53 of the NDPS Rules 1985 provides for general prohibition for import into and export out of India of the Psychotropic Substances, except with an import certificate or export authorization issued by the competent authority.
9. Rule 58 of the NDPS Rules 1985 specifically provides that for the purpose of exporting narcotic drug or
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CRL.P No.12347/2023Psychotropic Substance, an authorisation issued by the competent authority is required. Undisputedly the company of which the petitioners herein are the directors does not possess any such authorization/permission. Therefore exportation of any articles including medicinal tablets, which contain Psychotropic Substances, in the absence of necessary authorization as provided under the Statute, will definitely attract offences under the provisions of the NDPS Act.
10. The material on record would go to show that the seized contraband articles were forwarded to the Forensic Science Laboratory on 19.04.2023 for the purpose of chemical examination. The investigation in the present case is completed and complaint was filed before the jurisdictional Court on 20.09.2023. The material on record would go to show that the test report (qualitative) issued by Laboratory was issued on 08.06.2023 and the same is produced along with the complaint filed on 20.09.2023. It is the specific contention of the learned senior counsel that, till date the quantitative analysis test
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CRL.P No.12347/2023report has not been received from the laboratory in respect of the contraband articles and therefore it cannot be said that contraband articles seized in the present case is of commercial quantity.
11. Rule 14 of the NDPS (Seizure) Rules 2022 reads as follows:
"14. Expeditious Test.- The chemical laboratory shall submit its report to the court of Magistrate with a copy to the investigating officer within fifteen days from the date of receipt of the sample.
Provided that where quantitative analysis requires longer time, the results of the qualitative test shall be dispatched to the court of Magistrate with a copy to investigating officer within the said time limit on the original copy of the Test Memo and in the next fifteen days the result of quantitative test shall also be indicated on the duplicate Test Memo and sent to the court of Magistrate with a copy to the investigating officer."
12. From a reading of the aforesaid Rule, it is seen that within 15 days from the date of issuance of qualitative test report by the laboratory, quantitative test report is required to be placed before the jurisdictional Court. In
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CRL.P No.12347/2023the present case, qualitative test report was forwarded on 08.06.2023. Complaint was filed after investigation on 20.09.2023, however till date the quantitative test report has not been issued by the Forensic Science Laboratory.
13. In the case of Bharat Chaudhary (supra) at paragraph 10, the Hon'ble Supreme Court has observed as follows:
"10. After carefully examining the arguments advanced by learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated 17th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that "quantitative analysis of the samples could not be carried out for want of facilities". In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in
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possession of commercial quantity of psychotropic subtances as contemplated under the NDPS Act. xxxx"
14. Therefore, a serious doubt arises with regard to the quantity of Psychotropic Substance seized in the present case. Even otherwise, considering the quantity of tablets seized in the present case, it cannot be said that huge quantity of said tablets were being exported by the accused. The material on record would go to show that accused No.2 is a qualified doctor and he is registered medical practitioner. The tablets are exported based on the prescription issued by him. Petitioner No.1 was earlier working in the Pharmacy Company known as Cipla. The petitioners are in custody from 05.04.2023. Investigation in the case is completed and complaint has been filed. In the absence of the report as provided under Rule 14 of the NDPS (Seizure) Rules, 2022, serious doubt arises with regard to the quantity of Psychotropic Substance contained in the tablets which were allegedly being exported in the name of the company of which the petitioners are the directors. The object behind obtaining a
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CRL.P No.12347/2023report under Rule 14 of the NDPS (Seizure) Rules, 2022 is to ensure fair play in the investigation. Punishment for offences under NDPS Act depends on the quantity of contraband article seized. Even if it is presumed that the investigating officer may have some difficulty in strictly complying the time frame provided under Rule 14 of the NDPS (Seizure) Rules, 2022, but atleast at the time of filing final report, compliance of this Rule is expected to be adhered to.
15. Plain and literal interpretation of Section 37 of the NDPS Act would effectively exclude the power of granting bail. Glaring procedural lapses can be a ground to grant bail and same would not only result in drawing adverse inference, but would also have the effect of reducing the rigour under Section 37 of the NDPS Act. The facts and circumstances of the case for offences under the NDPS Act itself should justify application of the rigour under Section 37 of the NDPS Act and mere registration of the case itself should not be a factor for testing the case within the parameters of Section 37 of the NDPS Act. First
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CRL.P No.12347/2023and foremost the prosecution should prima facie establish that commercial quantity of contraband article is involved in the case. Any doubt in the said regard would definitely go in favour of the accused. Therefore, the rigour under Section 37(1)(b) of the NDPS Act, cannot be made applicable in the present case. The judgments on which reliance was placed by learned counsel for the respondent therefore are not applicable to the present case. Undisputedly, the petitioners have no criminal antecedents. Under these circumstances, I am of the opinion that the prayer made by the petitioners for grant of regular bail is required to be answered in the affirmative, subject to imposing appropriate conditions on them. Accordingly, the following:
ORDER Petition is allowed. The petitioners are directed to be enlarged on bail in Spl.C.C.No.2150/2023 pending before the Court of XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDS Cases, Bengaluru registered for the offences punishable under Sections 8(c), 12, 21(c), 23(c),
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24, 26, 28 of the NDPS Act, subject to the following conditions:
i. The petitioners/accused Nos.1 and 2 shall execute personal bond for a sum of Rs.2,00,000/- with 2 sureties each for the likesum to the satisfaction of the jurisdictional Court;
ii. The petitioners/accused Nos.1 and 2 shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts their appearance for valid reasons; iii. The petitioners/accused Nos.1 and 2 shall not directly or indirectly threaten or tamper with the prosecution witnesses;
iv. The petitioners/accused Nos.1 and 2 shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against them is disposed off. v. The petitioners/accused Nos.1 and 2 shall not involve themselves in committing any similar offences in future.
Sd/-
JUDGE KGK