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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 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 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.

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 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 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, 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).

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 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 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.