CRL.O.P.No.24955 of 2010 G.M. AKBAR ALI,J., The petitioner, who was arrested on 14.9.2010 for the offence punishable under Secs.135(1)(b) and 135(1)(c) of Customs Act in Cr.No.40 of 2010 on the file of the respondent police, seeks bail.
2. The case of the prosecution is as follows:
One Rajapandian of Tamil Nadu, who arrived from Mumbai to Chennai by IC 173, on 5.8.2010, was intercepted and found in possession of 9 lorry transport receipts. On tracing the receipts which lead to lorry transport offices at Wall tax Road, Chennai, the customs authorities found 600 kgs of Ketamine , a contraband to the value of Rs.1.08 crores in the lorry godown and they have seized the same. The said Rajapandian admitted in his statement that he procured Ketamine from the petitioner for and on behalf of one Ibrahim at Chennai, who in turn, would export the contraband to Asian Countries.
3. According to the prosecution, the contraband was supplied by the petitioner, who is based in Mumbai to be exported to Asian Countries and to be used as a drug widely used by youths in the Asian Countries. The petitioner has been arrested and remanded to judicial custody on 14.9.2010.
4. The petitioner has come forward with the above application for bail on the following grounds:
1. The petitioner has no connection with the seized goods
2. Ketamine Hydrochloride is not a banned item in India and it is freely importable and exportable, it is neither dutiable nor prohibited under the Customs Act and therefore, Sec.111, 113, 135(1)(b) and 1(c) are not attracted.
3. The duty evasion is also not attracted.
4. there is no attempt to export the seized material out of India and mere preparation is not punishable under Sec.135 of the Customs Act.
5. Mr.B. Kumar, learned Senior Counsel who appeared for Mr.S. Palanikumar, would draw the attention of this Court to the Notification No.67(RE-2007)/2004-2009 dated 27.12.2007 under which restriction has been imposed only regarding Ketamine and not on Ketamine Hydrochloride and that to upto the year 2009. The learned senior counsel also pointed out that there is no attempt to export the seized items as they were nowhere nearer the customs area as defined in the Customs Act. The learned senior counsel relied on a decision reported in 1985 (21) ELT 353 (Mad) (Ranjit Export Private Ltd vs Collector of Customs, Madras) , 1989 MLJl 41 (S. Muthiah Pillai vs Foreign Exchange Regulation Appellate Board, Shastri Bhavan) to explain what is ‘ attempt to export and what is the preparation for export’. The learned counsel pointed out that in the present case there is no attempt to export and if at all any offence could be made it would only a preparation which is not punishable. The learned counsel pointed out that the Ketamine can be exported by obtaining No Objection Certificate from the Narcotic Commissioner and relied on a decision reported in 2010 2 LW (crl)952 (M. Buhari vs State of Tamil Nadu and others).
6. On the contrary, Mr.N.P.Kumar, the learned Special Public Prosecutor for Central Government submitted that the Notification dated 27.12.2007 is applicable even beyond the period of 2009. The learned counsel also pointed out that the contraband has been brought from Mumbai to Chennai in large quantity through lorry to be exported to Asian Countries. From the manner of procurement and transport to Chennai, an area vulnerable for smuggling of goods, the learned counsel also pointed out that there is an attempt to export and the abuse of ketamine has been spreading rapidly in South East Asia. According to the counsel for the Department, the preparation for smuggling is complete and the same would have been exported had it not been intercepted by the authorities.
7. Heard and perused the materials available on record.
8. Admittedly, the contraband seized is a substance called Ketamine Hydrochloride. The Notification No..67(RE-2007)/2004-2009 dated 27.12.2007 imposes a restriction only regarding Ketamine and not Ketamine Hydrochloride.
9. Transportation of Ketamine Hydrochloride within India is not an offence. As held in 1989 2 MLJ 41 (S.Muthiah Pillai vs Foreign Exchange Regulation Appellate Board) cited supra, the test for determining whether the act of the petitioner constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless.
10. In the present case, the product has been transported to Chennai and the allegation is that there is an attempt to export the same to foreign countries. Whether the acts of the petitioner amounts to export or preparation is a matter for trial and this court does want to go into the merits of the case.
11. At this stage, the court is concerned with whether the petitioner is entitled to be released on bail. Even according to prosecution, the petitioner has been examined and statement has been obtained and the alleged contraband was seized. Therefore, I am of the considered view, no prejudice would be caused to the prosecution if the petitioner is released on bail. There is also no allegation that the petitioner is trying to tamper with evidence or flee away from clutches of law.
12. Under such circumstances, the petitioner is ordered to be released on bail on executing a bond for a sum of Rs.50,000/- with two sureties each for a likesum to the satisfaction of the learned Additional Chief Metropolitan Magistrate, EO-II, Egmore, Chennai on a condition that the petitioner shall report before the respondent daily at 10.00 a.m for a period of fifteen days and thereafter he shall report before the Directorate of Revenue Inteligence, No.13, Sir Vithaldas, Thackersey Marg, New Marine Line, Mumbai.
-11-2010
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G.M. AKBAR ALI,J.,
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Pre-Delivery order in
Crl.O.P.No.24955/2010
-11-2010