T
1 Cri.Appln. No.1405.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1405 OF 2010
Union of India .. Applicant.
Vs.
Jagdish Singh and Anr. .. Respondents.
WITH
CRIMINAL APPLICATION NO.5718 OF 2010
Union of India
Vs.
ig .. Applicant.
Harvinder Singh and Anr. .. Respondents.
WITH
CRIMINAL APPLICATION NO.5719 OF 2010
Union of India .. Applicant.
Vs.
G.Samuel @ Anna @ Raju & Anr. .. Respondents.
WITH
CRIMINAL APPLICATION NO.5722 OF 2010
Union of India .. Applicant.
Vs.
Anil Kumar Menon @ Allen
and Anr. .. Respondents.
WITH
CRIMINAL APPLICATION NO.5725 OF 2010
Union of India .. Applicant.
Vs.
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2 Cri.Appln. No.1405.10
Harjinder Ram and Anr. .. Respondents.
WITH
CRIMINAL APPLICATION NO.5726 OF 2010
Union of India .. Applicant.
Vs.
Veer Bahadur Singh and Anr. .. Respondents.
Shri F.E.Saldanha, Ms.Revati Mohite Dere alongwith Ms.Smita
Deokar and Mandar Goswami, Spl. P.P., for the applicant.
Shril Anil G.Lalla alongwith Mr.Sunil Ghadge for respondent no.1 in
Cri. Appln. No.1405 of 2010 and Appln. No.5725 of 2010.
Shri Ayaz Khan for respondent no.1 in Cri.Appln. No.5718 of 2010
and Cri. Appln. No.5722 of 2010.
Ms.Sartaj Shaikh for respondent no.1 in Cri.Appln. No.5719 of 2010.
Shri Dilip Mishra for respondent no.1 in Cri.Appln. No.5726 of 2010.
Ms.A.T.Javeri, A.P.P., for respondent no.2 - State.
CORAM : J.H.BHATIA, J.
DATED : 17TH FEBRUARY, 2011.
ORAL JUDGMENT :-
1. All these applications are filed by the Union of India seeking
cancellation of bail granted to accused nos.1 to 6 by the learned
Special Judge by different orders.
2. According to the prosecution on the basis of specific
information received, the officers of the Narcotics Central Bureau,
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Mumbai Zonal Unit, Mumbai intercepted accused no.1 – Jagdish
Singh, accused no.2 – Harvinder Singh and accused no.3 – Harjinder
Ram near the Oberoi Mall, Goregaon (East), Mumbai when they
arrived there in Toyota Innova car bearing registration No.PB-10-
CJ-2414. They delivered the contraband to taxi driver – Veer Bahadur
Singh, who is accused no.4 The taxi driver had come by taxi
No.MH-01-X-5483 for taking delivery of the contraband. On
interception 25 kgs. of Methamphetamine was recovered. After
completing the formalities it was seized, samples were taken.
statements of accused nos.1 to 4 were recorded under section 67 of
The
the Narcotics Drugs and Psychotropic Substances Act, 1985 (for
short hereinafter referred as “NDPS Act”) on 9th June, 2009. It was
revealed that accused nos.1 to 3 had brought the said contraband
from Punjab by car and it was to be delivered to accused no.5 – Anil
Kumar Menon. Accused no.4, taxi driver – Veer Bahadur Singh had
come near the Oberoi Mall to receive that consignment for and on
behalf of accused no.5 – Anil Kumar Menon. During interrogation, in
the statements of accused no.4 – Veer Bahadur Singh it was revealed
that accused no.5 – Anil Menon and accused no.6 – G.Samuel @ Anna
use to provide strategic and logistic support for export of the drugs to
Cambodia. The statements of accused no.6 – G.Samuel @ Anna was
also recorded under section 67 and he also confirmed this fact.
Initially, the crime was registered bearing No.NCB/BZU/CR/09/2009.
The samples were sent to forensic laboratory and after getting the
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report it was confirmed that the samples were Methamphetamine.
The complaint was filed in the court of Special Judge, Mumbai on 4th
December, 2009 and it came to be registered as NDPS Special Case
No.152 of 2009.
3. First of all, accused no.1 – Jagdish Singh filed bail application
No.237 of 2009 which was rejected by learned Special Judge as per
the order dated 16th November, 2009. Thereafter, he filed another
application for bail relying on certain authorities of this court as well
as from different High courts and Supreme Court. His main
contention was that even though Methampethamine is shown as
psychotropic substance in schedule to the NDPS Act, it was not
shown in schedule I to the NDPS Rules and, therefore, possession or
transportation of Methampethamine could not be an offence. After
hearing the parties the learned Special Judge granted bail to him by
the order dated 3.3.2010. That order is sought to be set aside and
cancelled by the Union of India. It may be noted that initially this
court had granted stay to implementation of the bail order. That
order was challenged before the Supreme Court and the Supreme
Court allowed the appeal and set aside the order of stay passed by
this court while the application for cancellation of bail continues to be
pending before this court. After accused no.1 – Jagdish Singh was
granted bail, accused nos.2 to 6 also filed different applications for
bail before the learned Special Judge who by orders dated 12.10.2010
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5 Cri.Appln. No.1405.10
granted bail to each of them. The Union of India has challenged
those orders and seeks cancellation of bail.
4. 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 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 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, 25 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 contended on behalf of the prosecution that the learned trial
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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.
5. 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, 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 Menon &
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
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7 Cri.Appln. No.1405.10
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). Learned counsel for accused no.5 also contended that
accused no.5 was having a certificate of import and export from the
Ministry of Commerce and he has also license to sell, stock, exhibit or
offer for sale or distribution of certain medicines from the licensing
authority, Food and Drug Administration, Maharashtra State and,
therefore, the provisions of NDPS Act would not be applicable to him.
Learned counsel also contended that statement of accused no.5 under
section 67 of the NDPS Act was recorded after his arrest and,
therefore, it cannot be given much importance and further this
statement was retracted by him later on before the Metropolitan
Magistrate.
6. At the outset it may be stated that I had occassion to deal with
similar matter in Criminal Application No.3618 of 2010 Union of India
Vs. Ravindran Krarapaya @ Ravi & Ors. and Criminal Application
No.5640 of 2009 Union of India vs. Xie Jing Feng @ Richard & Anr. in
which 7 Kgs. of Methampethamine was alleged to be recovered from
the accused persons. Same arguments were also advanced by both
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8 Cri.Appln. No.1405.10
the parties in those applications which were filed by the Union of
India for cancellation of bail. I have dealt with the related provisions
of NDPS Act and Rules in depth in the judgment dated 19th
November,2010. Later on the reasons given in the said judgment
were adopted in toto by another learned Judge of this court in
Criminal Application no.4824 of 2010 Union of India Vs. Riyaz Razak
Menon & Ors. which was decided on 10th January, 2011 (Coram:
R.C.Chavan, J.). In fact to a great extent these applications are
covered by the earlier judgment dated 19th November, 2010 but it
would be useful to deal with the legal position again as some more
points are raised in these matters.
7. Section 2(xxiii) defines psychotropic substance. It reads thus :-
“”psychotropic substance” means any substance,
natural or synthetic, or any natural material or
any salt or preparation of such substance ormaterial included in the list of psychotropic
substances specified in the Schedule.”
Methamphetamine is shown at entry no.19 in the Schedule of the
psychotropic substances and therefore, there can be no dispute that
Methamphetamine is the psychotropic substance as defined in
Section 2(xxiii). Section 2(viia) provides that commercial quantity, in
relation to narcotic drugs and psychotropic substances, means any
quantity greater than the quantity specified by the Central
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Government by notification in the Official Gazette and similarly,
clause (xxiiia) provides that small quantity, in relation to narcotic
drugs and psychotropic substances, means any quantity lesser than
the quantity specified by the Central Government by notification in
the Official Gazette. The Central Government has issued a
Notification under sub-clause (viiia) and (xxiiia) of section 2 and
Methamphetamine, also known Metamfetamine, is at Entry no.159 of
the said table and as per column 6, the commercial quantity means
the quantity more than 50 grams. In the present case, 7 kg. of
Methamphetamine was allegedly seized from flat no.601 and thus,
undoubtedly, it is huge commercial quantity.
8. Section 8(c) of the NDPS Act reads as under :-
“8. Prohibition of certain operations – No
person shall –
(a) xxxxxxxxxxxx
(b) xxxxxxxxxxxx
(c) 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 and in
the manner and to the extent provided by the
provisions of this Act or the rules or orders made
thereunder and in a case where any such
provision, imposes any requirement by way of
licence, permit or authorisation also in
accordance with the terms and conditions of such
licence, permit or authorisation:”
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10 Cri.Appln. No.1405.10
9. From this it is clear that no person shall produce, manufacture,
possess, sell, purchase, transport, import inter-State, export inter-
State, import into or export from India or tranship any narcotic drug
or psychotropic substance except for medical or scientific purposes
and when it is produced, manufactured, possessed, sold, purchased,
transported, warehoused, used, consumed, imported or exported
inter-State or in India or outside India, all that has to be done in the
manner and to the extent provided by the said Act, Rules or Orders
that may be issued and also subject to the requirements of the
licence, permit or authorisation which may be issued.
10. Section 22 is a penal provision and is in relation to
psychotropic substance. It reads thus :-
“Section 22. Punishment for
contravention in relation to psychotropic
substance.-Whoever, in contravention of any
provision of this Act or any rule or order made or
condition of licence granted thereunder,
manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-
State or uses any psychotropic substance shall be
punishable,-
(a) Where the contravention involves small
quantity, with rigorous imprisonment for a term
which may extend to six months, or with fine
which may extend to ten thousand rupees, or
with both;
(b) where the contravention involves quantity
lesser than commercial quantity but greater than
small quantity, with rigorous imprisonment for a
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term which may extend to ten years, and with
fine which may extend to one lakh rupees;
(c) where the contravention involves commercial
quantity, 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 Court may, for reasons to
be recorded in the judgment, impose a fine
exceeding two lakh rupees.”
11. From the language of Section 22, it becomes clear that
whoever manufactures, possesses as well as purchases, transports,
imports inter-State, export inter-State or uses any psychotropic
substance shall be punished if any such act is done in contravention
of any provisions of the NDPS Act OR any rule OR order made
under the Act OR in contravention of any conditions of the
licence granted to him. Further if the provisions of Section 8(c) and
Section 22 are read together, it would be clear that there is a
complete ban on the production, manufacture, possession, sale,
purchase, transport, warehouse, use, consumption, import inter-
State, export inter-State, import into India, export into India or
transhipment of any narcotic drug or psychotropic substance, except
for the medical or scientific purposes and where any person is
found to be in possession, etc. of any such psychotropic substance
and if he does not claim that he came in possession etc. for the
medical or scientific purposes by virtue of the provisions of the Act,
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Rules, Orders, etc., he will be treated to have contravened the
provisions of Section 8(c) and that contravention is punishable under
Section 22. To bring the case under exception, the initial burden will
naturally lie on the accused to show that he had come in possession
etc. for the medical or scientific purposes. If he claims that he has
done any such act for medical or scientific purposes, it will be for him
to show that he had done it in the manner and to the extent provided
by the provisions of the Act, Rules or orders thereunder. If he fails to
show that he had done any such act for medical or scientific purposes
and as per the provisions of the Act, he will be liable to be convicted
and sentenced under Section 22. Further if a person having done any
such act under the provisions of the Act and but if contravenes any
Rule or Order or if contravenes the terms and conditions of licence,
permit or authorisation, still he is liable to be convicted under Section
22. In view of the provisions of Section 105 of the Evidence Act, when
a person is accused of an offence, the burden of proving the existence
and the circumstances bringing the case within any special exception
or proviso contained in any law defining the offence is upon him and
Court shall presume the absence of such circumstances. As noted
above, Section 8(c) prohibits a person from producing,
manufacturing, possessing, selling, purchasing, transporting,
warehousing, using, consuming, importing and exporting inter-State,
import into India and export from India or transhipment of drug and
psychotropic substance. Having prohibited such operations, Section 8
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provides for exception where the person claims that he had done any
such operation for medical or scientific purposes. In view of the
provisions of Section 105 of the Evidence Act, the burden will lie on
that person to prove circumstances and the facts which would bring
his case within the exception.
12. In the present case prima facie it appears that accused nos.1, 2
and 3 had brought 25 Kgs. of Methampethamine from Punjab to
Bombay and they were intercepted when they gave delivery of the
same to accused no.4, Veer Bahadur Singh – Taxi Driver, who had
come to receive the consignment for and on behalf of accused no.5 –
Anil Kumar Menon. Accused nos.1 to 3 did not claim that they had
any license or authorisation for possession or inter-state transport
from Punjab to Maharashtra. Accused no.4 also does not claim that
he had any license or authorisation to take delivery of
Methampethamine. According to him he was innocent taxi driver and
was not knowing what were contents of the consignment. From his
statement under section 67 and from the arguments advanced on his
behalf by learned counsel it appears that he was regular taxi driver
for accused nos.5 and 6 and accused no.5 had asked him to collect
the said consignment and, therefore, he had accepted the said
consignment without any knowledge of the same. Accused no.5
claims that he has a certificate for export and import and also licence
from the Food and Drug Administration, Maharashtra Government for
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14 Cri.Appln. No.1405.10
sale, storage and manufacture of certain medicines. He has also
produced the copies of relevant certificate and licence. The certificate
of Importer-Exporter Code (IEC) appears to have been issued by the
Ministry of Commerce, Government of India on 1.11.2004 in favour of
Anjali Enterprises situated at Rose Villa, Christain Street, Madh
Island, Mumbai, Maharashtra with branch office at Andheri (East).
This certificate nowhere indicates that the certificate of import or
export was issued to him for the purpose of possession,
countries of any
transportation, inter-state import or export or export to foriegn
psychotropic substance and particularly
Methampethamine. It appears to be general Importer Exporter Code,
which authorises business of export and import. Naturally, this
certificate is of no use when he wants to deal in psychotropic
substance like Methampethamine. Next is licence in form 20-D issued
by the Licensing Authority, Food and Drug Administration,
Maharashtra State. This licence is issued on 31st August, 2004 in
favour of Anjali Enterprises. It shows that by this licence Anjali
Enterprises has licence to sell, stock or exhibit or offer to sell or
distribute by wholesale drugs other than those specified in Schedule
C, C(1) or X, subject to the conditions specified in the licence and
subject to provisions of Drugs and Cosmetics Act, 1940 and Rules
thereunder. Methampethamine is also a drug in Schedule “X” under
Drug and Cosmetics Act. The main argument advanced by learned
counsel for the accused against application of NDPS Act to
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Methampethamine is that it is shown in schedule “X” of the Drug and
Cosmetics Act but is not shown in schedule-I of the NDPS Rules and,
therefore, NDPS Act is not applicable. The above referred licence
issued by the Food and Drug Administration gives licence to Anjali
Enterprises for certain operations in respect of drugs other than
those specified in Schedule C, C(1) and X and, therefore, this licence
does not authorise Anjali Enterprises or accused no.5 to sell, stock,
distribute, transport etc. any drug and particularly
Methampethamine which is shown in schedule “X”. In view of the
above the Importer-Exporter Code and the licence issued by the Food
and Drug Administration, Maharashtra State do not provide any
authority to accused no.5 to deal with or possess psychotropic
substance i.e. Methampethamine. These certificate and licence are of
no use in this case.
13. After the claim of accused no.5 to possess Methampethamine on
the basis of above referred certificate of Importer Exporter Code or
license issued by Food and Drug Administration, Maharashtra State is
rejected, there is no document on record produced by any of the
accused persons to bring their case within the scope and ambit of the
exception to Section 8(c). Therefore, consideration of rules framed
under NDPS Act would in fact be unnecessary. However, because the
learned Counsel for the respondent/accused have relied on certain
authorities, contending that as Methamphetamine is not shown in the
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Schedule I to the Rules, the provisions of NDPS Act are not
applicable, it will be necessary to deal with the relevant rules and the
authorities relied on by the learned Counsel.
14. Section 76(1) of the Act provides that subject to other
provisions of the act, the Central Government may, by notification in
the Official Gazette, make rules for carrying out purposes of this Act.
Section 9 provides that subject to provisions of Section 8, the Central
Government may, by
rules permit and regulate cultivation,
production, manufacture, etc. of coca plant, opium, other narcotic
drugs as well as psychotropic substances. The Central Government by
virtue of powers under Sections 9 and 76 framed and notified
Narcotic Drugs and Psychotropic Substances Rules, 1985. Chapter III
and IV provides for opium. In view of the language of Section 9, it is
clear that the Rules, that the Central Government has framed to
permit or regulate such operations, are subject to provisions of
Section 8 and Section 8, as pointed out above, prohibits any such
operation in respect of narcotic drugs or psychotropic substances
except for medical or scientific purposes. It means under Section 9,
the Government may frame rules to permit and regulate such
operations as per the said exception to Section 8 and not in
contravention of the same. Similarly, Section 76 clearly shows that
the Central Government may frame and make rules for carrying out
purposes of the Act and not for anything in contravention to that. The
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schedule of the psychotropic substances under the Act is part of the
Act and no rule can be framed or can be interpreted in the manner
which would be in contravention of the said schedule or the
contravention of Section 8 or Section 22.
15. Chapter 5 of the Rules deals with the rules and grant of
licence for the manufacture of drugs. Chapter 6 of the Rules deals
with import, export, transhipment of narcotic drugs and psychotropic
substances. Rule 53 puts a general prohibition on the import into and
export out of India on the narcotic drugs and psychotropic substances
specified in Schedule I subject to other provisions of that chapter.
Chapter 7 deals with psychotropic substances and Rule 64 provides
that no person shall manufacture, possess, transport, import inter-
State, export inter-State, sell, purchase, consume or use any of the
psychotropic substances specified in Schedule I. Thus, it will be clear
that while Rule 53 prohibits import in and export out of India of the
narcotic drugs and psychotropic substances specified in Schedule I.
Rule 64 prohibits inter-State import or export, sell, possession, etc. of
psychotropic substances specified in schedule I of the Rules. It may
be noted that prior to amendment with effect from 13th October,
2006 in the Schedule I of the Rules, 33 narcotic drugs and some
psychotropic substances were included in that Schedule I. After the
amendment, only there are three entries under the Narcotic Drugs
and there are three entries under the Psychotropic Substances,
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fourth in each category is salts, preparations, admixtures, extracts
and other substances containing any of these drugs or psychotropic
substances. Thereafter, there is a Schedule II framed under Rule 53-A
which provides that narcotic drugs or psychotropic substances or
preparations specified in Schedule II shall not be exported to the
countries or to the regions mentioned therein. Again in Schedule II,
there are in all 45 entries and against each substance, in column
no.5, names of the countries are mentioned to which, that particular
narcotic drug and psychotropic substance cannot be exported.
Methamphetamine is at Serial No.30 in the said Schedule and against
that entry, names of 14 countries are mentioned to which this
substance cannot be exported. Rule 65 provides that manufacture of
psychotropic substances other than those specified in Schedule I shall
be in accordance with conditions of licence granted under the Drugs
and Cosmetics Rules, 1945, framed under the Drugs and Cosmetics
Act, 1940, by an authority in charge of drugs control in a State
appointed by the State Government in this behalf. Proviso of Rule 65
provides that said authority in charge of the drug control may issue a
licence to manufacture a psychotropic substance specified in
Schedule III for the purpose of export only. In the Schedule III, there
are 34 items.
16. If the schedule of the Act is perused carefully along with
Schedules I, II and III under the Rules, it will be clear that while the
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Schedule under the Act describes the psychotropic substances, the
Schedule I, II and III are framed under the Rules for different
purposes and none of those three schedules contains all the
psychotropic substances which are shown in the schedule to the Act.
Some of them are in Schedule I, some of them are in Schedule II and
some are in Schedule III of the Rules and the purpose of each
schedule is different. If these schedules I, II and II are read along
with Rules, it will become clear that under Rule 53, drugs and
psychotropic substances specified in schedule I cannot be imported
into and exported out of India, except under an import certificate or
export authorisation issued under different provisions of that chapter.
Under Rule 64, no person shall manufacture, transport, possess,
import inter-State, export inter-State, sell, purchase, consume, use
any of the psychotropic substances specified in Schedule I. As per
Rule 65, the manufacture of psychotropic substances other than those
mentioned in Schedule I shall be in accordance with the conditions of
the licence granted under the Drugs and Cosmetics Rules, 1945. The
psychotropic substances in Schedule III should be manufactured
under licence issued by the authority in charge of the drug control in
the State. Rules 66(1) specifically provides that no person shall
possess any psychotropic substance for any of the purposes covered
by the Drugs and Cosmetics Rules, 1945 unless he is lawfully
authorised to possess such substance for any of the purposes under
the Rules. Thereafter, Rules 66(2) provides for possession and use of
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psychotropic substances by research institutions, hospitals,
dispensaries, etc. It also provides for possession by an individual for
his personal medical use subject to prescription by the registered
Medical Practitioner. In normal circumstances for medical purposes,
one may be permitted to possess not exceeding 100 dosage units at a
time and for his personal long term medical use, he may be permitted
to possess more than 100 dosage but not exceeding 300 dosage at a
time. The quantity which may be possessed by the research
institutions, hospitals, dispensaries, etc. are also prescribed by the
Rules and the licence or permit which may be issued to them. From
this, it is clear that nobody can be in possession of any such
psychotropic substance unless he has got appropriate licence, permit
or authorisation either under these Rules or under the Drugs and
Cosmetics Rules, 1945. At the cost of repetition, it may be again
stated that in the present case, none of the accused persons claim to
have any such licence, permit or authorisation to possess or store or
use any quantity of Methamphetamine.
17. In Rajinder Gupta vs. State (supra), the accused-
applicant was a partner in the firm known as M/s.A.D.S. Associates. It
was alleged that as a partner of the said firm, he had sold 2,61,000
ampoules of Buprenorphine Hydrochloride Injections under the brand
name Bunogesic which he had allegedly received from M/s.Pharma
Deal Agencies, New Delhi. No recovery of the said Buprenorphine
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Hydrochloride Injections was made from the petitioner. On the basis
of the record, it was revealed that he had sold those ampoules. Each
injection was of 2 ml each bearing the branded name “Bunogesic”
and each ml contained Buprenorphine Hydrochloride IP equivalent to
Buprenorphine Hydrochloride 0.3 mg and water for injection. It
means each ampoules contained 0.6 mg Buprenorphine
Hydrochloride. Two questions were posed before the Delhi High
Court, first, whether Buprenorphine Hydrochloride was a
Rules could be
psychotropic substance and if yes, whether Chapter VII of the NDPS
applicable. It was held that Buprenorphine
Hydrochloride is a psychotropic substance as shown in the Schedule
to the Act. However, it was also schedule H Drug and it could be
manufactured under the licence under the Drugs and Cosmetics
Rules, 1945 and the said drug was manufactured by and was received
from M/s.Pharma Deal Agencies by the petitioner. It was held that the
petitioner was carrying on business in partnership and that he had
received the injections which were manufactured by another
company under the licence and therefore, the provisions of NDPS Act
would not be applicable. In the result, the accused were granted bail.
It may further be noted that the Delhi High Court also calculated the
total quantity of the Buprenorphine Hydrochloride on the basis of the
ampoules which were seized on the basis of certain disclosures and it
was found that it was much less than the commercial quantity of 20
grams. In fact, in view of this, the case would not fall within the limits
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22 Cri.Appln. No.1405.10
of commercial quantity to which the rigours of Section 37 NDPS Act
are applicable and the bail application could be considered as per the
provisions of Section 437 or 439 of the Cr.P.C. The view taken by the
Delhi High Court in Rajinder Gupta (supra) was followed by
learned Single Judge of this Court in M.V. Henry, Intelligence
Officer vs. Raviprakash Goyal (supra). In that case also, according
to the prosecution, one Aslam Mohammed Shaikh was to receive a
consignment of Norphazine Injections containing Buprenorphine,
which is a psychotropic substance. On information, in presence of the
panch witnesses and Aslam Mohammed Shaikh, search of the
premises of transporter M/s.Chavla Carriers was carried out and the
NCB recovered and seized 11950 ampoules of the said psychotropic
substance. Said samples were manufactured by M/s.Gopish Pharma, a
firm carrying on business in New Delhi. Accused Ravi Prakash Goel
was a proprietor of the said firm. The said ampoules were transported
from M/s.Gopish Pharma i.e. from the accused Ravi Prakash Goel to
M/s. G and G Medicine Company which was the sole distribution
agent for M/s.Gopish Pharma. In that case, Aslam Mohammed Shaikh
was granted bail on the ground that the quantity of the psychotropic
substance was less than commercial quantity. On the same ground,
Ravi Prakash Goel was also granted bail. That order was challenged
by the Intelligence Officer before this Court. This Court (Coram : S.C.
Dharmadhikari, J.) concurred with the view taken by Delhi High Court
in respect of the Rules and held that the said drug, though a
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23 Cri.Appln. No.1405.10
psychotropic substance, was also a schedule H drug for which the
licences are given under the Drugs and Cosmetics Rules, 1945. In the
result, the application for cancellation of bail was rejected. It is
material to note that in paras 2 and 4 of that judgment, the learned
Judge repeatedly stated that the observations and findings in the said
order were only for the disposal of the bail application and those
observations are only prima facie and shall not prevent the court
below from recording its finding on merits at the time of the
conclusion of the trial. The learned Judge further observed that the
prohibition contained in the statute must be seen in the context of
individual operations and the psychotropic substance, in question.
This judgment was again followed by the learned Judge in Pradeep
Dhond vs. Intelligence Officer (supra). In Riyaz s/o. Razak
Menon vs. State of Maharashtra (Criminal Application
No.3196/2010) (supra), it appears that alprazolam and diazepam
powders were seized from the accused. The order shows that it was
argued that the said substances do not come within the ambit of
Section 8(c) of the NDPS Act and that the said substance seized from
the manufacturer therein may fall within the ambit of Drugs and
Cosmetics Act and therefore, NDPS Act could not be applicable. The
learned Judge referred to the judgments of Supreme Court in
Ouseph vs. State of Kerala, (2004) 4 SCC 446, Hussain vs.
State of Kerala (2000) 8 SCC 139 and State of Uttaranchal vs.
Rajesh Kumar Gupta 2007 (1) SCC 355 and held that the
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24 Cri.Appln. No.1405.10
provisions of Section 8(C) are not applicable. Details of the facts of
that case are not revealed in the judgment.
18. In State of Uttaranchal vs. Rajesh Kumar Gupta,
2007(1) Crimes 6 (SC), the accused was Ayurvedacharya and he
was operating from two clinics viz. Neeraj Clinic Pvt.Ltd and Dr.B.S.
Gupta Medical Charitable Society. He was assisted by eight other
Medical Practitioners. During the raid, 70 kg. Pure Phenobarbitone
was recovered. It was also revealed that from his two clinics, huge
quantity of the said drug was sold and sent to the customers by post
during the years 2001 to 2005. In that case also, the Supreme Court
dealt with different rules and as he was a Medical Practitioner and he
claimed that he was in possession of the said drugs for the medical
purposes, the case would be covered by the Drugs and Cosmetics Act
and Rules thereunder and therefore, even though the said drug was
also psychotropic substance within the meaning of Schedule to the
NDPS Act, still the provisions of Section 8 would not be applicable.
The Supreme Court upheld the grant of bail and rejected the appeal
preferred by the State. The Supreme Court also noted that the Delhi
High Court and Bombay High Court in the above referred two cases
had taken the same view. It may be noted here that in Customs New
Delhi vs. Ahmadalieva Nodira, 2004 Criminal Law Journal 1810
wherein Diazepam of 5 mg. tablets were seized. Three Judge Bench of
the Supreme Court had set aside the bail granted to the accused. It
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25 Cri.Appln. No.1405.10
may be noted that in Pradeep Dhond (supra), the Union had
preferred appeal before the Supreme Court and in the order dated
20th April, 2007, the Supreme Court noted the judgment in Collector
of Customs, New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC
549 rendered by three Judge Bench and subsequent judgment of two
Judge Bench in the State of Uttaranchal vs. Rajesh Kumar Gupta
(supra) and in view of the provisions of Section 80 of the NDPS Act,
Their Lordships observed that the matter needs to be placed before
three Judge Bench. The learned Counsel for the parties informed that
the matter is still not decided by the larger Bench of the Supreme
Court. The reference of the matter to the larger Bench indicates the
difference of opinion by the three Judge Bench in the earlier case and
the two Judge Bench in the later case and therefore, Their Lordships
of the Supreme Court felt that the matter needs to be considered by
the three Judge Bench again, apparently to sort out the difference of
opinion. It is not necessary for this Court to make any comment about
the same. In my opinion, on facts none of the above authorities
including State of Uttaranchal vs. Rajesh Kumar Gupta (supra) is
applicable to the facts of the present case. In each of these cases,
certain ampoules of injections were manufactured by some
pharmaceutical company having certain licence under the Drugs and
Cosmetics Act and Rules. In Rajesh Kumar Gupta (supra), he was a
Medical Practitioner running two clinics and was also helped by other
Medical Practitioners. According to him, he was in possession of the
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26 Cri.Appln. No.1405.10
said drugs for medical purposes. Thus, in each of the cases, the
accused had tried to bring the case within the ambit and scope of
exception to Section 8 and the Courts had come to the conclusion, for
the purpose of deciding the bail applications prima facie, that the
case was not covered by the provisions of Section 8 read with Section
22 of the NDPS Act. Therefore, either bail was granted or confirmed.
19. The whole thrust of the argument advanced by learned counsel
for the accused was based on Rajesh Kumar Gupta (supra) which
was delivered by His Lordship Mr.Justice S.B.Sinha for the bench of
Supreme Court. It is useful to note that in D.Ramkrishnan Vs.
Intelligence Officer, Narcotics Control Bureau 2009 AIR SCW
4772 Mr Justice Sinha, heading the bench of Supreme Court, himself
distinguished the facts of that case from the facts of Rajesh Kumar
Gupta (supra). In D.Ramkrishnan (supra) accused no.1, who was
absconding, was indulging in illegal internet pharmacy business with
a branch at Coimbatore. Accused no.2 – D.Ramkrishnan was
managing the activities of the said branch. During the search it was
revealed that accused no.1 used to procure different drugs indicated
by the appellant – D.Ramkrishnan by the local pharmacy and pack
them separately as per packing slips and dispatch the same to the
customers through airmail and RMS post office at Coimbatore. The
drugs procured and exported were Alprazolam, Lorazepam and
Nitrazepam. These drugs find place at serial nos. 30, 56 and 64
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27 Cri.Appln. No.1405.10
respectively of the schedule appended to the NDPS Act. However,
none of these drugs were shown in schedule I to NDPS Rules. It was
revealed that appellant – D.Ramkrishnan and co-accused were said to
have got license under the Drug and Cosmetics Act, 1940 which gave
them general permission for import and export. After referring to the
observations in paragraph 19 and 20 in Rajesh Kumar Gupta, His
Lordship observed thus:
“11. Section 80 of the Act provides that the
provisions of the Act or the rules made
thereunder are in addition to, and not in
derogation of the Drugs and Cosmetics Act, 1940or the rules made thereunder.
Drugs and Cosmetics Act, 1940 does not
deal with exports. The provisions of Customs Actdo. The licensees, therefore, were, thus, required
to comply with the specific requirements of the
Act and the Rules. It is not denied or disputedthat the appellant neither applied for nor granted
any authority to export by the Narcotic
Commissioner or any other Officer who is
authorized in this behalf.
12. We, therefore, are of the opinion that the
High Court is right in opining that the decision of
this Court in Rajesh Kumar Gupta (supra) is not
applicable to the facts of this case.”
20. Thus, the Supreme Court itself held that unless there was
necessary licence under the provisions of NDPS Act and Rules,
merely because of some licence under the Drug and Cosmetics Act,
the accused do not get licence or authorisation for dealing in
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28 Cri.Appln. No.1405.10
psychotropic substances shown in NDPS Act. Thus I am supported by
the judgment of the Supreme Court itself while distinguishing the
facts of the present case from Rajesh Kumar Gupta (supra),
Pradeep Dhond (supra) and M.V.Henry (supra).
21. The contention of learned counsel for the accused that the
provisions of NDPS Act would not be applicable to possession etc of
Methampethamine because it is not shown in schedule I of the NDPS
Rules though it is shown in schedule appended to NDPS Act has to be
rejected for one more reason. Methampethamine is psychotropic
substance shown in the schedule to NDPS Act. Section 22 of NDPS
Act provides that whoever, in contravention of any provisions of the
Act or any rule or order made or condition of licence granted
thereunder, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any psychotropic
substance shall be punished according to the quantity. The
commercial quantity for Methampethamine is 50 gm. In the present
case 25 Kgs. of Methampethamine was seized from accused nos.1
to 4. For the offence involving commercial quantity punishment is
imprisonment for a term, which shall not be less than 10 years but
which may extend to 20 years with fine. Section 31 provides for
enhanced punishment for offences after previous convicton. Section
31-A provides only death sentence for certain offences after previous
conviction. As per section 31-A if any person, who has been convicted
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29 Cri.Appln. No.1405.10
of the commission of, or attempt to commit, or abetment of, or
criminal conspiracy to commit, an offence punishable under section
19, 24 and 27-A or an offence involving commercial quantity of any
narcotic drug or psychotropic substance, is subsequently convicted
for offence relating to engaging in the production, manufacture,
possession, transportation, import into India or transhipment, of the
NDPS specified in column (1) of the Table given in section 31-A and
involving the quantity which is equal or more than quantity indicated
against each such drug or substance shall be liable to puishment of
death. In the table Methampethamine is shown against entry No.(xi)
and quantity prescribed is 1500 gms. It means if a person has been
convicted for an offence involving commercial quantity of narcotic,
drug or psychotropic substance and after that conviction he is again
convicted with similar offence involving 1500 gms. of
Methampethamine the only sentence which can be awarded is death
penalty. If argument of the learned counsel for accused is accepted
that merely because Methampethamine is not shown in schedule I of
the Rules, provisions of NDPS Act are not applicable, the provisions
of section 8, 22 and 31-A will become nugatory and redundant. It is
impossible to hold that the provisions of NDPS Act will be governed
or overshadowed by the Rules framed thereunder. Under Section 76,
the Central Government is empowered to make rules for carrying out
purposes of the said Act and not in contravention of the said Act.
Therefore, this argument advanced by learned counsel for the
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30 Cri.Appln. No.1405.10
accused has no basis and is liable to be rejected.
22. Learned counsel for accused no.5 also contends that against
entry no.30 pertaining to Methampethamine in schedule to the NDPS
Rules, name of Cambodia is not shown as country to which the said
drug can not be exported. The heading of column 5 reads thus:
“Country or region to which export is prohibited”. In column 2 and 3,
the names of narcotic drugs or psychotropic substance is shown. In
column 4, its chemical name is given and in column 5 names of the
countries to which export is prohibited is shown. In entry no.30
though the name of Cambodia is not there, name of Thailand is
specifically mentioned. If the heading of column 5, as noted above, is
read carefully, it indicates that prohibition against export is not only
to that country but also to that region in which that country is
situated. Cambodia has common border with Thailand and,
therefore, Cambodia is a country in the region in which Thailand is
situated and, therefore, it can be held that export of
Methampethamine to Cambodia is also prohibited. Prima facie
accused nos.5 and 6 used to provide logistic support for transhipment
and export of Methampethamine to Cambodia. Therefore, prima facie
case is made out against them under NDPS Act.
23. In the present case huge quantity of 25 Kgs. of
Methampethamine was recovered from possession of accused nos.1
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31 Cri.Appln. No.1405.10
to 4 and prima facie it is shown that accused nos.5 and 6 were
involved in transhipment and export of the said psychotrophic
substance. It is not the case of the accused that they had any
licence, permit or authorisation either to manufacture or possess or
store the said psychotropic substance. Therefore, none of the above
authorities or the Rules comes to support of the accused. In fact, Rule
66 also prohibits any person from possession of any psychotropic
substance for any of the purposes covered by the Drugs and
Cosmetics Rules, 1945 unless he is lawfully authorised to possess a
substance for any of the said purposes under the Rules. In the
present case, accused do not claim to have any such authorisation.
Therefore, in view of the provisions of Section 8 read with 22 of the
NDPS Act, prima facie, the accused had committed the offence of
possession of commercial quantity of psychotropic substance i.e.
Methamphetamine and are prima facie, liable to be convicted and
sentenced under Section 22(c). Taking into consideration huge
quantity which is much beyond the limits of commercial quantity also
and the revelation made during the investigation that accused no.3
was regularly dealing with export of psychotropic substances from
India and that accused nos.1 and 2 were assisting him, no case is
made out to grant bail to them. The learned Special Judge did not
consider the facts of the present case and without considering the
facts and the legal position, granted bail following the judgment in
Ravi Prakash Goel and Pradeep Dhond (supra), without looking
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32 Cri.Appln. No.1405.10
to the difference in the facts of the cases. In view of the above facts
and circumstances, I hold that the trial court committed serious error
in granting bail to the accused persons and therefore, in the larger
interest of justice, it is necessary to set aside the said orders of bail.
24. Therefore, these applications are allowed and the impugned
orders granting bail to accused nos.1 to 6 are hereby set aside. The
accused persons shall immediately surrender before the Special
Judge, NDPS Act and they shall be taken in custody.
25. Learned counsel for the accused persons make request to stay
operation of this order for six weeks. The request is rejected.
(J.H.BHATIA,J.)
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