Gujarat High Court
Saiyed vs State on 29 December, 2011
Author: Md Shah
Bench: Md Shah
Gujarat High Court Case Information System
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CR.MA/13186/2011 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13186 of 2011
With
CRIMINAL
MISC.APPLICATION No. 14182 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SAIYED
VAZEERULLAH HAJIMULLA PASHA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
CRIMINAL
MISC.APPLICATION No. 13186 of 2011
MR
PR ABICHANDANI WITH MR VAIBHAV A VYAS
for
Applicant(s) : 1, MR BHAVESH D
HAJARE for Applicant(s) : 1,
Ms.Krina
Calla, APP
for Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 2,
MR
PS CHAMPANERI for Respondent(s) : 2,
CRIMINAL
MISC.APPLICATION No. 14182 of 2011
MR ANIL
LALLA WITH MR RAMNANDAN SINGH for Applicant(s) : 1,
MR PS CHAMPANERI for Respondent(s) : 1
Ms.Krina
Calla, APP
for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 29/12/2011
COMMON
ORAL JUDGMENT
The applicants by these applications under Sec.439 of the Code of Criminal Procedure prayed to release them on bail as they are in judicial custody in connection with the complaint lodged by the Intelligence Officer, Narcotic Bureau, Ahmedabad, respondent No.2 herein, registered as NCB/AZU/CR-04/2010 for having committed offence under Sec.9A read with Sections 25A read with Sec.29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act" for short) for producing, manufacturing, possessing and storing 238.450 kg. of Ephedrine in violation of RCS Order, 1993 by entering into a criminal conspiracy. The applicants were arrested on 27-10-2010 and since then, they are in judicial custody. Applications preferred by the applicants before the court below after filing of the charge sheet were rejected by the learned Principal District and Sessions Judge, Bharuch, vide order dated 28-2-2011 passed in Cri.Misc.Appln.No.72 of 2011.
Heard learned counsel, Mr.P.R.Abichandani with Mr.Vaibhav A.Vyas for the applicant in Cri.Misc.Appln.No.13186 of 2011, Mr.Anil Lalla with Mr.Ramnandan Singh for the applicant in Cri.Misc.Appln.No.14182 of 2011, learned Addl. Public Prosecutor, Ms.Krina Calla for the respondent No.1-State and learned Assistant Solicitor General for the respondent No.2-complainant.
It is submitted by learned counsel for the applicants that these matters involve substantial question of law as to whether in view of Section 77 of the Act, every rule, order or notification issued by the Central Government under Section 9A of NDPS Act is to be laid before each houses of Parliament and it is only after both the houses agree, pass and approve the notification, shall it be given effect. It is further submitted that Ephedrine used in the manufacture of certain 'amphetamines' and 'methamphetamine' is declared as a 'Control Substance' vide notification No. S.O. 1296(E) dated 28.12.1999. It is further submitted that even if it is assumed that Ephedrine is a controlled substance, the power to control and regulate possession, sale, manufacture of the controlled substance is provided under Section 9A of the NDPS Act and Sec.9A(1) provides that Government may, by order, regulate or prohibit the production, manufacture, supply and distribution of the controlled substance, however, in the present case, no notification under Sec.9A prohibiting or regulating the production, manufacture, possession, supply or distribution of Ephedrine is issued and hence, the alleged possession of Ephedrine could not be said to be in violation of any order issued by the Central Government. According to them, Ephedrine is not a Narcotic Drug or Psychotropic substance as defined under Section 2 (viia) and 2 (xxiii) of NDPS Act and punishment prescribed for using the above substance in the manufacture of medicine and possession thereof under Section 25A is imprisonment for a term which may extend to 10 years with fine which may extend to Rs.1,00,000/- and such offence is out of rigor of Section 37 of NDPS Act. It is also submitted that as far as statement recorded of the accused or a co-accused under Section 67 of NDPS Act is concerned, it may have limited role to play at the stage of trial since said statement was also retracted later on. Therefore, when another similarly situated co-accused, who have played almost identical role, was enlarged on bail by this Court vide order dated 18.1.2011 passed in Cri.Misc.Appln. No.14910 of 2010, it is urged that the present applicants, who are neither directors or partners, may also be released on bail on parity. It is also further submitted that the applicants are employees of the accused No.1-Faiyaz Ahmed Rasool Shaikh working on a monthly salary and were not aware that the accused No.1 has been engaged in illegal business of NDPS and merely they were present at the factory premises, they have been falsely involved in this case. It is therefore urged that they may be enlarged on bail. In this connection, they relied on the following decisions:
i) Rafeal Palafox Gracia Vs. Union of India and another of Bombay High Court reported in 2009 Cri.L.J. Page 446 and
ii) Faiyaz Ahmed Rasoon Shaikh Vs. Union of India & Anr. Of Bombay High Court passed in Criminal Application No.165 of 2011 with Criminal Bail ApplicationNo.522 of 2011 and Criminal Bail Application No.593 of 2011 of the Bombay High Court.
Learned Assistance Solicitor General, Mr. P.S. Champenari, submitted that it has come out from the statement of Shri Rasik Dalsani, who is Director of M/s Mira Organics Pvt.Ltd., that the manufacturing of the said substance was being done by him along with Shri Faiyaz Shaikh and his associates Vazeerulla Pasha Sayyed, Shri Shabbir Babulal Sayyed and Shri Hashim Rabeul Shaikh. It is further submitted that the applicants were not merely employees but were engaged in manufacturing of the Ephedrine and hence, since their involvement in the offence in question is prima facie from the investigating papers, they cannot be released on bail. It is further submitted that one of the applicants namely, Saiyed Vazxeerullah Hajimulla Pasha is M.Sc.(Chemistry) and is holding Post Graduate Diploma in Chemical Analysis and Quality Management and both the applicants were knowing that the company in which they were employed were manufacturing Ephedrine without the license from competent authority and hence, they have committed the offence alleged against them and hence, they may be not enlarged on bail. Moreover, looking to the charge sheet papers, it appears to this Court that the applicants are not similarly situated with the accused-Umeshbhai Balvantrai Pandya, who has been released on bail by this Court.
This Court has gone through the complaint, charge papers as well as the orders passed by the trial Court as well as this Court. It prima facie appears from the papers of charge sheet and from the statements of accused recorded by the Investigating Agency that the applicants were knowing that they were employed to manufacture Ephedrine. It also appears that they were knowing that manufacturing Ephedrine without license is illegal.
As far as applicant-Hashim Rabeul Shaikh is concerned, he has specifically stated in his statement dated 27-10-2010 that since he was facing shortage of money, he agreed to prepare Ephedrine and accused Faiyaz Shaikh managed a meeting with one Chemist of Hyderabad who used to manufacture Ephedrine. Later on, he along with Faiyaz manufactured 437 kg of Ephedrine in Hyderabad and sold it in Rs.10,000/- per kg. It is further stated by him that he procured raw material of Ephedrine as per say of Faiyaz Shaikh and to get Rs.10,000/- to Rs.12,000/- p.m. From Faiyaz for this job. It is further stated by him that he looked after the tasks of Pasha in his absence. He also stated that to manufacture Ephedrine without property authority is an offence but he did it due to greed of money.
Rabeu Sayyed Pasha in his statement dated 27-10-2010 has stated that he started business of medicine distribution after obtaining license in the name of S.B.Pharma. He further told that Faiyaz Shaikh asked him about the process of manufacturing Ephedrine. He also stated that when Faiyaz offered him salary of Rs.25,000/- per month, he agreed as he was not not having any employment and he started manufacturing Ephedrine and on 26-10-2010, 238.450 kg. of Ephedrine was recovered during the process.
As stated above, it appears from the charge sheet papers that the applicants were knowing that preparing Ephedrine without permission is illegal and is a serious crime. They were also knowing that the factory in which were employed was manufacturing Ephedrine and thus, they were helping in the manufacture of Ephedrine. Thus, it is prima facie revealed from the statements of applicants that they have involved themselves in the offence alleged. When their involvement in the offence in question has been prima-facie established, this Court would not like to release the applicant on bail. Therefore, the applicants may not be entitled to get the benefit of the decisions cited by their counsel. This Court (Coram:
Anant S.Dave,J.) vide order dated 18-2-2011 has rejected the bail application of another co-accused namely, Faiyaz Ahmed Rasool passed in Cri.Misc.Appln.No.875 of 2011. The statements recorded under Sec.63, although retracted later on, is an admissible piece of evidence and same can be considered at the stage of trial. Further, issuance of notification sans requirement of Sec.77 of NDPS Act would not ensure any benefit to the accused since punishment prescribed for the alleged offence is upto 10 years with fine of Rs.1,00,000/-. The other questions that have been contended as involved in the present case cannot be decided at the stage of deciding bail applications as any observations on them may prejudice the parties during the trial. In view of the above, this Court is of the opinion that the applicants are not required to be released on bail even on the ground of parity. In view of the above, both the applications are required to be rejected.
Both these applications are rejected. Rule is discharged.
The observations by this Court in these applications being made for the purpose of deciding these applications may not prejudice the parties during trial.
Office to place a copy of this order in each matter.
[M.D.SHAH,J.] radhan Top