Gujarat High Court
Ravindran vs State on 2 August, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.MA/3912/2010 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3912 of 2010
=====================================================
RAVINDRAN
KARAPAYA @ RAVI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=====================================================
Appearance
:
MR
BB NAIK FOR MR SANJAY PRAJAPATI for Applicant(s) : 1,MR AK BULSARI
for Applicant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR ND GOHIL for Respondent(s) :
2,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 02/08/2010
ORAL
ORDER
1. This is an application filed under Section 439 of the Code of Criminal Procedure by the applicant, in connection with NDPS Case No.5 of 2009 pending before the Fast Track Court No.3, Baroda, for the offence punishable under Sections 8(c) read with 22,23,24,25 read with 12,27A,29,32(B)(C)and 38 of the Narcotics Drugs and Psychotropic Substances Act, 1985,(N.D.P.S. Act).
2. As per the case of the prosecution, on 20.11.2008, the Intelligence Officer attached to Narcotics Control Bureau, Mumbai received a specific intelligence that two Malaysian Nationals named Gunasekaran Pillay and Ravindran Karapaya had come to Vadodara along with their associate named Richard aged 50 years in a silver Innova Car bearing Reg. No.MH-04-DB-2466 for the purpose of their visit was to transport a part consignment of Methamphetamine manufactured in a factory near Vadodara under the supervision of Richard. The consignment of Methamphetamine would be transported to Mumbai in the Innova car for being smuggled abroad by Air route and the intelligence was recorded at 9.10 a.m. on 20.11.2008 and in connection of the said information, raiding party was formed and two panch witnesses were called to the premises of Special Operation Group, Opp. Karelibaug Police Station, Vadodara. On 21.11.2008 at about 4:30 a.m. the Innova car seen coming from Makarpura Maneja Road and was stopped in the presence of Panchas and four persons were found in the vehicle with two sitting on front seats and two sitting on the rear. Interrogating by names and search was carried out and recovery of while crystalline powder packed in four transparent polythene bags and when tested on Drug Testing Kit answered positive for Methamphetamine. A personal search was carried out of persons and care also and some document and currency was recovered then the panchnam was drawn and the complaint was lodged against the present applicant accused and other persons.
3. Learned Senior Counsel Mr. B.B. Naik appearing on behalf of the applicant contended that Methamphetamine is pharmaceutical drug or a medicine which is covered under the Drugs and Cosmetics Act, 1940 and the rules thereunder. Methamphetamine being a pharmaceutical drug can be manufactured under a licence issued by the Food and Drugs Administration of each respective State. Methamphetamine besides other is marketed under the brand name of Desoxyn. Methamphetamine is essentially a stimulant for the central nervous system. That said Methamphetamine is a Schedule X Drug and is governed by Rules 23,61, 75, 97 and 105-A of Drugs and Cosmetics Act, 1940. Methamphetamine is a n psychotropic substance which is defined in Section 2 (xxiii) of the NDPS Act, 1985 being any substance natural or synthetic or any natural material or any salt or preparation of such substance or material included int eh list of psychotropic substances specified in the Schedule. The schedule which appears at the bottom of the NDPS Act, 1985 includes Methamphetamine at Sr. No.19. Besides there is separate table provided in the NDPS Act under which Methamphetamine is listed at Sr. No.159 and its small quantity and commercial quantity being 2 grams and 50 grams. This table relates to sub-clause (viia) and (xxiia) of Section 2 of the NDPS Act. The Chapter III of the NDPS Act, provides for prohibition, control and regulation of certain operation undr the Act and Section 8(c) of the Act reads as 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 substances 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 thereon and in a case where any such provision, imposes any requirement by way of licence, permit or authorization, also in accordance with the terms and condition of such licences, permit or authorisation Chapter IV of the Act provides for offences and penalties and Section 22 of the Act provides for punishment for contravention in relation to psychotropic substances with different punishments provided for different quantity of seizures like small quantity, commercial quantity etc. He further contended that the Central Government in order to implement the provisions of the NDPS Act has enacted the NDPS Act, 1985. These Rules are formulated in exercise of the powers conferred by Section 9 r/w Section 76 of the NDPS Act, 1985. The schedule is defined in Rule 2 (j) and Schedule to the Rules is different and independent from the Schedule to the Act. Chapter VI of the Rules provides for regulation in respect of import, export and transshipment of Narcotic Drugs and Psychotropic Substance. Rules 53 provides for the general prohibition on the import into and export out of India of Narcotic Drugs and Psychotropic Substances. Rules 53 provides for the general prohibition on the import into and export out of India of Narcotic Drugs and Psychotropic Substances specified in Schedule I and Rule 53-A provides for prohibition on export to specific countries provided in Schedule II to the Rules. Chapter VII covers the regulation in respect of psychotropic substance and Rule 64 thereunder contains the general prohibition in respect of psychotropic substances specified in Schedule I. Rule 66 regulates the possession of psychotropic substances and Rule 67 covers the transport in respect thereof. He has also contended that there are three separate schedules provided tot he NDPS Rules being Schedule I (Rules 53 and 64) Schedule II (Rule 53-A) and Schedule III (Rules 65(i) proviso). There three Schedules are independent and different from the schedule to the N.D.P.S. Act, 1985. Rules 53 and 64 contain the general prohibition in respect fo psychotropic substances as stated above. Under Schedule I, there are two categories I) Narcotic Drugs and II) Psychotropic Substances. There are only three substances covered under the list of psychotropic substances and the IV category relates to salt and preparation of the other three substances. It is pertinent to note that Methamphetamine is not provided in the Schedule I to the Rules and the general prohibition under Rule 53 and 64 would not be applicable to the cases which involve seizure of Methamphetamine. It was this argument canvassed before the Ld. Special Judge, Mumbai which resulted in passing of the bail order dated 25th and 26th November, 2009 to the co-accused Xie Jing Feng. Schedule II to the N.D.P.S. Rules covers Methamphetamine at Sr. No.30 and the export of the Methamphetamine is prohibited to only specific countries like Bulgaria, Japan, Nigeria, Pakistan, Thailand, etc. Schedule III does not include Methamphetamine. Thus, it is the export of the Methamphetamine to certain specific countries covered under Schedule II to the Rules which is prohibited under NDPS Act, 1985. The other operations in respect of Methamphetamine are therefore not prohibited.
4. Learned Senior Counsel Mr. Naik further submitted that besides Methamphetamine, there are some other substances which find place in the Schedule to the Act but are not covered under the Schedule to the Rules. Some of these substances are Buprenorphine, Pentazocine etc. The Hon'ble Delhi High Court in a reported and often cited had an occasion to consider the applicability of the provisions of N.D.P.S. Act to the substance listed in the schedule to the Act but not listed in the schedule to the Rules. The Hon'ble Court was examining the applicability of the provisions of NDPS Act in a case which involved seizure of Buprenorphine Injections which is a schedule H drug as provided under the Drugs and Cosmetics Act and Drugs and Cosmetic Rules, 1945. The schedule H drugs have warning that they cannot be sold by retail on prescription of a Registered Medical Practitioner only. The Delhi High court was pleased to dispose a group of matters while granting bail to the petitioners therein. Eventually, the Delhi High court were pleased to hold that Buprenorphine Hhydrochloride was beyond the pale of chapter VII of N.D.P.S. Rules and being a schedule H drug under Drugs and Cosmetics Act, 1940 and Rules, offence under section 8 was not made out and therefore, punishment under section 22 or 29 of NDPS would not be attracted.
5. Heard learned advocate Mr. N.D. Gohil appearing on behalf of the respondent No.2 Narcotics Central Bureau and learned APP Mr. H.L. Jani appearing on behalf of the respondent No.1 State. Both the learned advocates have strongly opposed the application of the applicant and contended that under Section 67 of the Act, the statement is recorded and that statement is required to be considered against the present applicant. It is also contended by them that this is case of international gang and drug trafficking and therefore, bail may not be granted in favour of the applicant considering the seriousness of the offence, in which the applicant is involved.
6. The respondent No.2 Narcotic Central Bureau has filed affidavit in connection of their submission and contended that a secret information was received on 20.11.2008 from Narcotic Control Bureau, Mumbai Zonal Unit that a person Chinese original namely Xie Jing Feng @ Richard who was holding a Canadian passport came to Vadodara with two associates by Card having Registration No. MH-04-DB-2466. The purpose of their visit is to transport a part of consignment of Methamphetamine. They would transport the consignment of Methamphetamine to Mumbai in said Car within two days for its smuggling abroad by Air Route. A watch was kept by the team of officers at Makarpura Maneja Road, where old National Highway No.8 and by-pass highway are merges along with two independent panchas. At about 4:30 hrs. on 21.11.2008, the vehicle bearing Registration No. MH-04-DB-2466 was noticed coming from Makarpura Maneja Road. The said Car was intercepted in presence of panchas. There were three occupants and a driver. The present applicant was also in the said car with other persons.
7. He further submitted that the information was received from N.C.B. Mumbai Zonal Unit on 20.11.2008 and immediately on 20.11.2008, the note was submitted to the Superintendent, N.C.B. Ahmedabad by the officer of N.C.B. on the very same day i.e. on 20.11.2008, at 21:40 hrs., the team of N.C.B. with two panch witnesses proceeded to Vadodara and on 21.11.2008 at 4:30 Hrs., the vehicle was intercepted with the contraband articles. On searching the vehicle, four packets containing white coloured crystalline powder substance in transparent polythene bag were found from one black coloured bag. On testing with the field drug testing kit, it answered positive for presence of Methamphetamine. Thus, total 4 packets containing 1.566 Kgs. of Methamphetamine was found and seized from car. On inquiring, Xie Jing Feng @ Rechard regarding procurement of Methamphetamine, he stated that it was brought from M/s. Sakha Organics Ltd. At and Post : Moxi, Taluka : Savli, District : Vadodara which belongs to one Mr. Kirit Shah of Vadodara. Thereafter, immediately the above factory was searched and 10 Beakers containing yellow colour liquid were found from the Refrigerator place, in the kitchen lab situated on the 1st Floor of the said factory premises. On testing the field drug testing kit, it answered positive for presence of Methamphetamine. Thus, 30 Ltrs. of Methamphetamine (wet) was seized from the factory i.e. M/s. Sakha Organics Ltd.
8. He further submitted that the prohibition imposed under Section 8 of the N.D.P.S. Act will apply to any Narcotic Drug and Psychotropic Substance provided, it was not for medicinal or scientific purpose. In the present case, the seized Methamphetamine was not for medicinal or scientific purpose. He further submitted that one of the contention of the applicant is that Methamphetamine is not covered under Schedule 1 of the NDPS Rules and therefore, prohibition imposed under Section 8 of the N.D.P.S. Act does not apply. In this regard, it is to state that Section 8 does not put any condition that prohibition imposed in it is applicable to the drugs covered under the Schedule I only. Therefore, to stretch or to restrict the meaning of the language used in the particular section will defeat the very intention of the legislature. In case of Ramchandra Singh Vs. B. Gopi Krishna Dass reported in AIR 1957 Pat. 260 P. 264, it is held that the well known rule of interpretation of statute that it is elementary that the primary duty of the Court is to give effect to the intention of the legislature, as expressed in the words used by ti and no outside consideration can be called in aid to find that intention. He also further submitted that in the case of Jairamdas Vs. Regional Transport, AIR 1957 Re. 312, 316, it is held that where a case falls within the plain meaning of a provision of law, its application thereto cannot be denied on any a prior consideration as to the supposed intentions of the legislature. Even otherwise, had it been so that the drug which is nto mentioned in the Schedule I of the N.D.P.S. Rules cannot be brought under charges of Prohibition , then it would nto be possible to seize OPIUM one of the most abused drug, because it does not place in the Schedule I of the N.D.P.S. Rules. Further, it that be the case, then legislature would not have considered some drugs which are not covered under Schedule-I for death penalty for second offence under Section 31-A of the Act. The fact is that such drugs are there in the table shown under Section 31-A. It is further submitted by him that granting of the bail in Mumbai is in another case, where Ephedrine and Methamphetamine were seized from a flat in absence of these accused and has different merit, whereas in the case on hand, all had a joint possession of drug while trafficking the same from Vadodara to Mumbai in Innova Car.
9. He also further submitted that if Methamphetamine is listed in the Drugs and Cosmetics Act/Rules then N.D.P.S. Act will not come into play. Because, primary, idea and essence of the provisions of Drugs and Cosmetics Act is that no sub-standard drug shall be sold in the market and no one will sell even a genuine drug without a licence. This is the essence of provisions of the Drugs and Cosmetics Act, which is reported in the case of State of Maharashtra Vs. Laxmichand Varhowal Chugani, reported in 1988 (1) FAC 94, 97(Bom.). In case of Bhavansing Vs. State of Rajasthan, reported in 1990(1)EFR 300, it is held that whereas N.D.P.S. Act is special law enacted byu the Parliament with an object that for controlling and regulating the operations relating to narcotic drugs and psychotropic substances. It is for this that stringent provisions of law have been made. It was fled that social evils are increasing and so also the drugs menace and due to fact increase of consumption of drugs, the country is becoming one of the centers of narcotic underworld, criminal and in order to club all these, N.D.P.S. Act was brought into force.
10. He further submitted that the averments of the application are denied about the Methamphetamine is not covered under the provisions of N.D.P.S. Act, 1985 as it is not in Schedule X drugs under the Drugs and Cosmetic Act, 1940 and the rules thereunder. Methamphetamine is shown in the Schedule of the N.D.P.S. Act and also figures at Sr. No.159 in table given under Notification specifying small and commercial quantity fro determining quantum of punishment, issued by S.O. No.1055 (E) dated 19.10.2001. Further, it is submitted that even if there is mention abut word Methamphetamine in Drugs and Cosmetics Act in any section, it des not mean that N.D.P.S. cannot be applied.
11. I have heard the learned advocates appearing on behalf of the parties at length and great detail. I have perused the application along with papers.
12. It appears that present applicant is booked for the offences punishable under Sections 8(c) read with 22,23,24,25 read with 12, 27A, 29, 32(B) (C) and 38 of the N.D.P.S. Act. It is argued by the learned Senior counsel for the applicant that Methamphetamine is not covered under the provisions of the N.D.P.S. Act, 1985 and it is the drugs covered under the Drugs and Cosmetics Act, 1940 and Rules framed thereunder. But from the perusal of the Schedule of the N.D.P.S. Act, the said Methamphetamine is shown at Sr. No.159 in table under Notification issued by S.O. No.1055 (E) dated 19.10.2001, specifying small and commercial quantity for determining the quantum of punishment also. Even, I have perused the statement recorded under Section 67 of the Act, in which three other accused including present applicant were recorded and present applicant himself admitted in statement dated 21.11.2008 that he was working with a person namely Xie Ging Feng and knowingly helped in dealing, testing, packaging, transporting and delivering the drug Methamphetamine, a psychotropic substance, which was manufactured by one Kirit Shah of M/s. Sakha Organics, Vadodara, and for this, Mr. Xie Jing Feng paid Rs.50,000/- to the applicant for each delivery for the job he did. So, from the statement, it appears that present applicant's actively participated with Mr. Xie Jing Feng, co-accused to commit these offences.
13. It is true that learned Senior Counsel has argued from the Drug Schedule, the article falls under the Drugs and Cosmetics Act, 1940. But it is required noted here that the said Methamphetamine is covered under the provisions of the N.D.P.S. Act and it is also shown and figured at Sr. No.159 in the Schedule of the N.D.P.S. Act as per the Notification issued by SO. No.1055 (E) dated 19.10.2001. So, the said statement made by the learned Senior Counsel regarding the provisions of the Drugs and Cosmetics Act cannot accepted or applied in the facts of the present case. Looking to the seizure of the said muddamal, it is in huge quantity and hence, it is prima facie established that the applicant is involved in such serious offences.
14. I have considered the submissions made by the learned senior counsel that the Bombay High Court has released the other co-accused on bail and placed reliance on the judgment of the Hon'ble Apex Court. But in the present case, said alleged article Drugs were recovered from the conscious possession of the applicant and looking to the panchanam and statement recorded under Section 67 of the Act also, the prima facie case is made against the present applicant. It is also required to be considered here the large interest of society, in such kind of case.
15. In view of the above observation, there is prima facie case against the present applicant, therefore, the application deserves to be dismissed. Hence, dismissed, Rule is discharged.
(Z.K.SAIYED,J.) ynvyas Top