JUDGMENT
Mahmood Ali Khan, J.
1. This order will dispose of two bail applications
one filed by E. Narayanan and the other by Mahesh
Majumdar. Wife of E.Narayanan is the proprietress of
M/s Sarafine Chemcials, vadodara but the business is
being run by E.Narayanan. Mahesh Majumdar is working as
as accountant in that concern. A criminal complaint has
been filed by the respondent Central Bureau of Narcotics
(NCB) against them for their prosecution for offences
under Section 9A read with 25A of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter NDPS Act).
They were arrested on 28.12.2001 and since then are in
judicial custody. Both have submitted applications
under Section 439 of the Cr.P.C. for their release on
bail.
2. The allegation against these accused, briefly,
stated, is that intelligence report was received by the
officers of the respondent that four cartons containing
Acetic Anhydride has been dispatched from Vadodara to
Delhi through Jaipur Golden Truck under a builty dated
29.10.2001. Acetic Anhydride is to be utilised for
manufacturing of heroine. One Attar Singh of Bhawani
Mandi was suspected. The intelligence report was
developed further and it was found that the said Attar
Singh was in constant contact on telephone at Vadodara.
A surveillance was put on the office of Jaipur Golden
Transport Company but nobody came to collect the
consignment till 7.11.2001. The officers of the
respondent thereupon with the approval of the transport
company opened the cartons on 12.12.2001. They were
found containing 16 bottles containing Acetic Anhydride
weighing in total 65.600 kgs. They were taken into
possession. Sample was taken out, other paper work and
formalities were completed and the consignment was
seized. As per the bill dated 29.10.2001 of Shree Laxmi
Fine Chem, Vadodara the cartons were supposed to contain
16 x 2.5 lts. Paraffin Liquid Light. Acetic Anhydride
is a controlled substance and is covered under Section
9A of the NDPS Act, 1985 for which legal documents were
mandatory and they were not found with the consignment.
Summons for inquiry under Section 67 of NDPS Act dated
14.12.2001 was sent to the consignee M/s Aggarwal
Agencies at the address given in the delivery note/bill
of Shree Laxmi Fine Chem, Vadodara dated 29.10.2001 but
the same was received back with the report that the
address did not exist at Ghanta Ghar, Delhi. They
inquiries disclosed that there was telephonic contact
between E. Narayanan, M/s Sarafine Chemicals, Vadodara
and the said Attar Singh of Bhawani Mandi. Searches of
the house of E.Narayanan accused wee conducted on
24.12.2001. The search of the business premises of
Sarafine Chem. was also conducted in the presence of
the witnesses and both these accused petitioners.
Nothing incriminating was recovered from the house of
E. Narayanan petitioner but the search of the premises of
Sarafine Chemical on 24.12.2001 resulted in the recovery
and seizure of some documents and other corroborative
evidences including letter head, bill books of a
non-existing company M/s Shree Laxmi Fine Chemical
Industries, Rubber Stamps, packing material and
documents relating to 40 lts. Acetic Anhydride were
also recovered in addition to that false labels of M/s
Ranbaxy and M/s S.D. Fine Chemicals, Boisar. Physical
verification of the stock of Acetic Anhydride revealed
that 511 kgs. Acetic Anhydride was deficient. 27
copies of the Lorry Receipts of earlier transaction were
also seized from the business premises of Sarafine
Chemical which related to the illicit trading of this
Chemical by M/s Shree Laxmi Fine Chem Industries,
Baroda. Many of the delivery notes/bills/consignment
notes sere addressed to self at Villages of Boliya,
Baroda, Pipliya Mandi Jaora, Shyamgarh etc. and they
were also seized. In the voluntary statement tendered
under Section 67 of NDPS Act dated 24.12.2001,
26.12.2001 and 27.12.2001 the petitioner E. Naraynan of
Sara Fine Chemicals admitted the recovery and seizure of
incriminating articles and documents and also stated
that (M/s Sara Fine Chemicals was the sole proprietorship
concern of this wife but he was managing its business and
he also stated that he had sold Acetic Anhydride without
consignment notes in the name of M/s Shree Laxmi Fine
Chem. Industries and he also deposed that he had
illegally sold Acetic Anhydride to one Rajinder Singh of
Bhawani Mandi whose telephone number was also revealed
by him. He was confronted with the copy of G.R. dated
29.10.2001 at Jaipur Golden Transport Company Along with
bill he stated that Acetic Anhydride was a controlled
substance and could not be sold without consignment note
and he had declared the goods as Parraffin liquid Light
and had sent the copy of the same to Rajinder Singh
through Madhu Courier, Vadodara. It was also stated
that the sale process was collected from Rajinder Singh
by Mahesh Majumdar at Ramganj Mandi, Rajasthan and that
all the labels were provided by Rajinder Singh and crown
cap were purchased by him from the local market. In the
voluntary statement made by Mahesh Majumdar petitioner
recorded on 24.12.2001, 26.12.2001 and 27.12.2001 under
Section 67 of the NDPS Act he also stated that he met
Rajidner Singh of Bhawani Mandi and gave his telephone
number and that he used to visit Ramganj Mandi to
receive payments from Rajender Singh and thus so far
they had sold about 750 lts. of Acetic Anhydride
illegally to Rajinder Singh. He also stated that he had
mostly prepared the documents declaring the goods as
detergent power instead of Acetic Anhydride and that
both the accused had deposed about he details of
consignment in which Acetic Anhydride was illegibly
dispatched by them to Rajinder Singh of Bhawani Mandi.
3. Vijay Bhai, Brach Manager, M/s Madhur Courier
Services, Vadodara in his statement recorded under
Section 67 of NDPS Act also deposed that Sarafine
Chemical, Baroda used to send letters through their
courier specially to one Rajinder Singh of Bhawani Mandi
in the name of Lovendra Singh as sender. He stated that
since January 2001 Sarafine had sent about 23 letters to
Rajinder Singh in the name of Lovendra Singh through
their courier and that both these petitioners used to
visit their office for sending their documents.
4. Abhay V. Shetty of Beena Chemicals, Baroda
also made statement under Section 67 of the NDPS Act in
which it was stated that Sarafine Chemicals was one of
their client for Acetic Anhydride EPTA and Acetic Acid
and that he use to supply Acetic Anhydride to Sarafine
Chem. He submitted 17 declaration form of Sarafine
chemcials for suing Acetic Anhydride, declaration of
their firm, endorsement by Central Excise authority for
purchase of Acetic Anhydride and supply to actual
consumers, copy of Central Excise Registration issued to
M/s Been a Chemicals, Schedule to Registration
Certificate, accounts statement of Sarafine Chemicals
form 1.4.1999 to 31.3.2001, account statement of
Sarafine Chemcials from 14.2.2001 to 11.12.2001, SSI
Certificate of Govt. of Gujrat for Sarafine Chemicals
and undertook to produce the remaining documents like
consignment record and RG -23G, quarterly return records
etc. All these documents disclosed that the petitioner
E. Narayanan was procuring Acetic Anhydride from Abhay
V. Shetty of Beena Chemicals. Scrutiny of the register
for Acetic Anhydride maintained by Sarafine Chemicals
form the period form 1.1.2000 revealed that the stock of
Acetic Anhydride should be 521.5 kgs. On 24.12.2001 but
it was found to be only 10 kgs. As such there was
shortage of 511 Kgs. of Acetic Anhydride. The
statutory record was also not properly maintained. 10
kgs. of Acetic Anhydride which was found was also taken
into possession by the officers of the respondent for
further investigation. On 24.12.2001 search of the
residential premises of Attar Singh of Bhawani Mandi was
also conducted and three Lorry Receipts of M/s Lucky
Transport Corporation showed the consignor and M/s Shree
Laxmi Fine Chemical, Baroda and self as consignee were
recovered but the search of the shop of Attar Singh did
not yield any incriminating material. It seems that
Attar Singh has represented himself to be Rajender Singh
to the petitioners and was the same who was indulging in
illegal trading of Acetic Anhydride.
5. Dheeraj Jain, agent of M/s Madhu Courier in
Bhawani Mandi was joined in investigation and he
tendered his voluntary statement whereby he deposed that
the letters meant for Rajender Singh had to be delivered
to Chhabra Tyres, Gurudwara Nehru Park, Bhawani Mandi.
He explained the identification of Rajender Singh as the
same disclosed by the accused persons. These accused
persons as such were arrested on 28.12.2001. Other
formalities and requirement of law were completed
against them.
6. Narender Kumar Dixit, Clerk, M/s Jaipur Golden
Transport Co., Roshnara Road, Delhi also tendered his
voluntary statement under Section 67 of NDPS Act on
24.1.2001 in which it was stated that his company has
received two other consignments vide two bills dated
17.10.2001 containing three boxes and on 27.10.2001
containing four boxes were delivered on 26.11.2001 to
one Umesh the basis of consigner’s copy who was not
known to them. The consignor of those goods was also
Shree Laxmi Fine Chemical, Baroda and the consignee was
self but as per delivery note the consignee note, the
consignee was Shiv Enterprises, 20/A, Jawahar Nagar, New
Delhi and M/s Manoj Enterprises, 163 Ropa Nagar,
Opp. Ghantaghar, Delhi. Both these addresses were found
fictitious and it seems that those consignments were
cleared on behalf of Rajender Singh @ Attar Singh of
Bhawani Mandi. In his voluntary statement under Section
67 of NDPS Act, Jagdish Nagindas Doshi, General Manager,
M/s S.D. Fine Chemicals, Boisar stated that they have no
business relations with M/s Sarafine Chemicals and have
never delivered any Chemicals to them. When he was
confronted with the labels, caps and other packing
materials, relating to the seized goods recovered from
Sarafine Chemcials he stated that the same were forged
one and during his statement he surrendered
original/genuine copy of the label as well as their
original packing material as piece of evidence.
B.M. Madan Rao, Production Manager of Ranbaxy Fine
Chemcials Limited, New Delhi in his voluntary statement
dated 22.2.2002 tendered under Section 67 of NDPS Act
also stated that the seized label of Ranbaxy is a forged
one and explained the reasons in his statement.
Investigation revealed that Rajender Singh is none other
than Attar Singh of Bhawani Mandi. Attar Singh has not
joined the investigation despite repeated summoning and
a complaint has already been filed against him by the
respondent for non-compliance of the summons which is
pending. Prosecution against him will be field at
appropriate stage. The accused persons have committed
offence under Section 25A and 29 of the NDPS Act and,
therefore, should be punished.
8. Notice of the bail application was served on the
respondent-NCB but nobody has appeared at the
hearing. Therefore, arguments of the counsel for the
petitioners were heard.
9. Counsel for the petitioner E. Narayanan has argued
that the only incriminating evidence against his
petitioner is the recovery of 40 kgs. of Acetic
Anhydride at the godown of a transport company and some
irregularities in the papers accompanying the
consignment. He submitted that the petitioner is a
licensed dealer of this Chemical, therefore, small
infraction with the rules of maintaining registers and
documents etc., should not disentitle him to the grant
of bail. He referred to Clause 5 of Narcotic Drugs &
Psychotropic Substances (Regulations of Controlled
Substances) Order 1993 (hereinafter Order) which
requires a person, who sells the controlled substances to
a buyer in a transaction of 100 kgs. and above, shall
sell only after buyer establishes his identity by
production of a documents like industrial license or any
registration certificate in order to establish his
identity and upon declaration being made for the purpose
for which the control substance was being purchased. He
stated that in the instant case only 40 kgs., of Acetic
Anhydride is involved. Therefore, it will not be a bulk
selling of controlled substance requiring compliance of
Clause 5 aforesaid. He also placed reliance on the
judgment of the Rajasthan High Court in Bheru Lal v.
State of Rajasthan, 1996 CRl.L.J. 845 where one litre
bottle of Acetic Anhydride concealed in a field was
recovered and it was held that the possession of 1 Ltr
of this Chemical by itself would not be offence
punishable under the NDPS Act. As a consequence, the
bail was granted to the accused.
10. On behalf of Mahesh Majumdar, counsel for the
petitioner argued that this petitioner was only an
accountant and he was at carrying on the orders of his
master and had not concern with the recovery of
controlled substance. Therefore, his case deserves to
be dealt with leniency and he should be granted bail.
11. I have given careful consideration to the
submissions made at the bar. Acetic Anhydride is a
controlled substance on which the Order applies. This
regulation came into force on 15.4.1993. Clause 2 of
the Order defines the various expressions used in the
Order. Clause 3 of the Order provided that any person
who manufactures or distributes or sells or imports or
exports or consumes any controlled substance shall
maintain daily accounts of his activities in the
prescribed forms which shall be preserved for a period
of two years and any such loss thereof would be promptly
notified to the Director General, Narcotics Control
Bureau of NCB. Clause 4 deals with the transport of
controlled substance and requires the consignment of
such substance to be moved from one place to another
only when it is accompanied by Consignment Note in the
prescribed form which is to be prepared in triplicate
etc Clause 5, as noticed earlier, relate to the bulk
selling of controlled substance and requires selling of
the controlled substance weighing 100 kgs. to a person
who has established his identity by documents which have
been mentioned therein Clause 6 deals with the
labelling of consignments for export or import. Clause
7 requires filing of quarterly returns in the prescribed
form to the Deputy Director, NCB etc.
12. The NDPS Act was amended to add Section 25A for
providing punishment for contravention of the orders
made under Section 9A. The punishment provided is
rigorous imprisonment for a term which may extend to 10
years besides fine which may extend to 1 lac of rupees.
Court has also been given powers to impose fine
exceeding Rs. 1 lac after giving reasons. Section 9A
which has also been inserted in 1989 is important as its
contravention is punishable by Section 25A. Sub-section
(1) of Section 9A authorise the Central Government to
provide for regulating and prohibiting the production,
manufacture, supply, distribution, trade or commerce of
any narcotic drug or psychotropic substance if it is
expedient to do so in public interest. Sub-section (2)
proclaims that in exercise of the powers given by
Sub-section(1) an order made may provide for regulating
by license permits or otherwise the production,
manufacture, possession, transport, import inter-State,
export inter-State, sale purchase, consumption, use,
storage, distribution disposal or acquisition of any
controlled substance. Narcotic Drugs & Psychotropic
Substances (Regulation of Controlled Substances) Order
1993 has been issued by the Central Government in
exercise of the powers conferred by Section 9A above.
As noticed, its violation is punishable by Section 25A
of the act.
13. The allegations made against these two
petitioners in the complaint and which have not been
controverter and which at this stage cannot be ignored
make out commission of grave and serious offence by the
two petitioners. Indeed the petitioner Mahesh Majumdar
is an employee of the petitioner E. Narayanan but from
the allegations made in the complaint it appears that
they were hand in glove and were involved in the sale
and supply of Acetic Anhydride, a controlled substance
in gross violation of the Narcotic Drugs & Psychotropic
Substances (Regulation of Controlled Substances) Order
1993 and the NDPS Act. The facts as disclosed in the
complaint show the involvement of these two petitioners
in the recovery of not only 40 kgs. of Acetic Anhydride
in the godown of a transport company but it disclose
running of the sale of the controlled substance in the
name of fictitious firm, fabrication of documents in
fictitious name in order to facilitate the supply of the
controlled substance for its clandestine use for
manufacture of heroine. The documents which have been
seized from the premises of Sarafine Chemicals which is
managed by petitioner E. Narayanan with the help of
petitioner Mahesh Majumdar disclose the manner in which
violation of the Order was being done by these
petitioners not in respect of one transaction but it was
a long series of transactions. Therefore, prima-facie
there is sufficient incriminating material to show that
the petitioners are guilty of the offence punishable
under Section 25A of the Act.
14. The facts of the case in Bheru Lal (supra) are
quite distinguishable on facts, so the judgment does
not come to the rescue of the petitioners herein.
15. Having regard to the gravity of the offence, the
possibility of the tampering of evidence and the accused
fleeing from justice it would not be prudent at this
stage to release these petitioners on bail.
Both the petitions are accordingly dismissed.