Crl.O.P.No.26320 of 2010
G.M. AKBAR ALI,J.,
The petitioner, was arrested on 2.9.2010 for the offence punishable under Secs. 21, 23, 25A, 27A, 28 and 29 of NDPS Act read with Rule 3 of RCS Order 1993.
2. The case of the prosecution is that on the basis of prior information, the NCB Officials seized 12 Drums each containing 25 kgs of Ephedrine which is a Controlled Substance. The above said contraband was seized on 1.9.2010 from the office of the petitioner. The investigation revealed that the petitioner, a Malaysian National has procured 300 kgs of Ephedrine and handed over to the Shipping Agent at Chennai for the shipment to Malaysia. The petitioner was apprehended while he was about to depart from Chennai and statement was recorded. The preliminary test conducted by the officers on the spot, answered positive for Ephedrine, a control substance, covered under the NDPS Act, read with NDPS (Regulation of Controlled Substance) Order 1993. The required No Objection Certificate for the export of the control substance was not available. The samples were drawn and the test report confirmed the presence of Ephedrine Hydrochloride, a control substance. Statement under Sec.67 of NDPS Act admitting the guilt and the involvement of the petitioner was also recorded and the petitioner was remanded to judicial custody. The petitioner is before this court seeking bail.
3. Mr.R.C. Paul Kanagaraj, learned counsel submitted that the alleged contraband is only a controlled substance coming under Sec.9-A of the Act and any contravention of orders made under Sec.9-A will attract punishment only under Sec.25-A of the Act. The learned counsel also pointed out that there is no minimum punishment under Sec.25-A and the imprisonment may extend to 10 years. Therefore, it will not attract section 37 of the Act, where there is a bar for granting bail.
4. The learned counsel further pointed out that if Sec.37 of the Act is not applicable, then the petitioner is entitled to be released on bail. The learned counsel further pointed out that substantial investigation was already over, statements were recorded and the alleged contraband was also seized. The learned counsel for the petitioner further submits that in similar circumstances, this Court has already granted bail for the co-accused.
5. On the contrary, Mr.R. Dhanpal Raj, Special Public Prosecutor submitted that the petitioner has committed an offence under Sec.9-A read with 25-A, 21, 23, 27-A, 28 and 29 of NDPS Act read with the provisions of NDPS (Regulation of Controlled Substance) Order 1993).
6. The leaned Special Public Prosecutor further submitted that section 25-A prescribes rigourous imprisonment which may extend to ten years and therefore, sec.37 of the Act is attracted. The learned Special Public Prosecutor pointed out that the petitioner is a procurer of the contraband and an offence under Sec.27-A of the Act has been committed by the petitioner, which is covered under Sec.37 of the Act. He relied on a decision reported in 2001 STPL (I.E) 29317 SC, wherein the Supreme Court held as follows:
“5. The scheme of section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr.P.C. But is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. As per the mandate of Section 37 no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be released on bail unless the conditions mentioned in sub-clauses (i) and (ii) f Clause (b) are satisfied. Pre-condition for application of Clause (b) would be that offence is punishable for a term of imprisonment of 5 years or more. Plain reading of the above said clause makes it clear that in case where the person is accused of an offence punishable for a terms of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20(b) maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs.50,000/-. There is no justifiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
7. The learned counsel for the petitioner submitted that after the above decision there is an amendment of Sec.37 by the amendment Act 9 of 2001 and w.e.f.2.10.2001, thereby the offences under Sec.19,24 and 27-A alone were incorporated restricting bail.
8. This Court considered the submissions made by both parties and perused the records. In 2003(1) CALLT 573 (HC) (Sailesh R. Shah vs The Intelligence Officer, NCB, Eastern Regional Unit), the Calcutta High Court had observed as follows:
“14. In view of the discussions made above, we find sufficient merit in the submission of Mr.Bose, leaned Advocate of the petitioner. In view of the amended provision of Section 37, it is clear that the rigors of Section 37 of the Act is only applicable in the offence under Section 19, Section 24 of Section 27 A and also to the offences involving “commercial quantity”. Now, a reading of the definition of “commercial quantity” makes it clear that it refers to only narcotic Drugs and Psychotropic Substance. The seized commodity (Ephedrine) is admittedly a “Controlled Substance”. It is neither a Narcotic Drug nor a Psychotropic Substance. So it cannot come within the purview of “commercial quantity”. Apart from this, the seized article, namely Ephidrine is not included in the schedule of Narcotic Drugs and Psychotropic Substance. All these, in our opinion suggest that the provisions of Section 37 of the Act is not applicable in the present case.
9. The said decision has been followed by our High Court in Crl.O.P.NO.4012 of 2008.
10. Sec.27-A of the Act reads as follows:
27A. Punishment for financing illicit traffic and harbouring offenders
Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;
Provided that the courtmay, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
11. The learned Special Public Prosecutor submitted that the petitioner has indulged in financing for the procurement of the substance which is to be used as Psychotraphic substance and therefore, there is a bar under Sec.37 of the Act to grant bail. Sec.9-A empowers the Central Government to regulate the controlled substances. The contravention of Sec.9A attracts punishment under Sec.25-A of the Act. As already stated, the contraband seized is a controlled substance and not a Narcotic Substance. Under Sec.27-A of the Act to punish a person, he ought to have indulged in financing, illicit traffic and harbouring of offenders in relatiion to the Phsychotraphic substances. The sub clause (i )to (v) of Clause (viiia) of Sec.2 of the Act deals with only with Psychotraphic substances and therefore, for any offence relating to the controlled substances, the provision of Sec27-A of the Act will not be applicable and therefore, Sec.37 is not a bar to release the petitioner on bail. This Court is of the considered view that the principle of law laid down by the Calcutta High Court is squarely applicable to the facts of the instant case as in this case also contraband involved is Ephedrine Hydrochloride which is a controlled substance.
In view of the decision of the Calcutta High Court, being followed by our High Court, this Court is now to hold that Section 37 of the NDPS Act does not stand in the way of granting bail to this petitioner.
12. Section 25(A) of the NDPS Act is as follows:
“25-A. Punishment for contravention of orders made under section 9-A If any person contravenes an order made under section 9-A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to find which may extend to one lakh rupees:
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees”.
13. It is observed by the Apex Court in Rajeev Chaudhary vs State (NCT) of Delhi reported in (2001 SCC (Cl.) 819) in paragraph 6 as follows:
“6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression “not less than” would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means,
imprisonment can be for a clear period of 10 years or more. Further, in context also if we consider clause (i) of proviso(a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years”.
14. Following the judgment reported in 2003(1) CALLT 573 (HC) (Sailesh R. Shah vs The Intelligence Officer, NCB, Eastern Regional Unit), this Court has also held in Crl.O.P.Nos.4012 of 2008 and 20929, 21280 and 23303 of 2009 , Sec.37 of the NDPS Act is not applicable to the control substance viz., Ephedrine Hydrochloride.
15. In the present case, the petitioner was arrested on 2.9.2010, was interrogated and the statements were recorded and there is no impediment in releasing the petitioner on bail.
16. Under the circumstances. The petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.1,00,,000/-(Rupees fifty thousand only) with two sureties each for likesum to the satisfaction of the learned Principal Special Court for NDPS Act Cases at Chennai and on further condition that the petitioner shall not leave the counry without the permission of the trial court and also on the condition that the petitioner shall report before the respondent daily at 10.00 a.m until further orders.
19-11-2010
sr
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G.M. AKBAR ALI,J.,
sr
Pre-Delivery Order in Crl.O.P.No.
26320 of 2010
19-11-2010