TMI Blog2018 (6) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... r offences to the line of Section 25(A) of the Act, the prosecution needs to file complaint on completion of investigation within 60 days from the date of remand of the accused in terms of Section 167(2) Cr.P.C. It is also true that the petitioners were remanded to judicial custody on 28.11.2016 but the complaint was filed by DRI only on 24.05.2017 i.e, beyond the period of 60 days and thereby the indefeasible right to claim bail was accrued to petitioners/accused immediately after the expiry of the 60 days. Petition allowed. - Crl.R.C.No.1575 of 2017 - - - Dated:- 25-6-2018 - M. V. Muralidaran, J. For the Petitioners : Mr.R.C.Paul Kanagaraj For the Respondent : Mr.N.P.Kumar Special Public Prosecutor ORDER The Petitioners preferred this Criminal Revision Petition against the order passed in Crl.M.P.No.1829 of 2017 dated 18.07.2017 by the learned II Additional Special Court under NDPS Act, Chennai, dismissing the application filed under Section 167 of Cr.P.C. for bail filed by in R.R.No.11 of 2016 in F.No.DRI/CZU/VIII/ 48/ENQ-1/INT- 48/2016 on the file of the respondent. 2. The prosecution case is that based on secret information the respondent, on 26.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy of the Petitioner as a consequence thereof without seeking a fresh report of the PP in terms of NDPS Act and the procedure adopted by the Respondent was in violation of the decision of the Hon ble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 and the extension itself is bad in law. 4. The learned counsel for the Petitioners also referred to the judgment of the Hon ble Apex Court in Sayed Mohd. Ahmad Kazmi vs. State reported in (2012) 12 SCC 1 wherein the Hon'ble Apex Court had granted statutory bail to an accused on default as a matter of right under UAPA Act even after filing of the Final Report. The Learned Trial Judge had wrongly decided that Section 37 of NDPS Act would attract, as the quantity of 9.900 tables if calculated and weighted with inactive ingredients would fall under commercial quantity. The Learned Trial Judge failed to appreciate the judgment of this Court in Crl.R.C.No. 1421 of 2016. In any event on merits, the petitioners are entitled bail under section 167(2) of Cr.P.C as complaint was not filed in time. 5. The learned counsel for the petitioners relied the following Judgments to strengthen his contention as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cking of the white powder like substance believed to the pseudoephedrine and attempted to export the same using the ICE of M/s. M.M.Exports, Chennai through Shipping Bill No.2418014 dated 24.11.2016. Then 9990 tablets of Alprazolam totally weighing 3201 grams which is a commercial quantity was also seized at National Sorting Hub, Chennai on 26.11.2016. 7. The Learned Counsel for the Respondent would further submit that seized contraband of Alprazolam (9990 Nos) is a commercial quantity and the Petitioners / Accused A1, A2 and A3 in their voluntary statements admitted that these were sourced by Shri. Abu and the parcel were to be collected by him for concealment and smuggling out in subsequent export consignments. The petitioners/Accused A1 to A3 herein and Shri Sathees were arrested on 29.11.2016 on a reason to believe that these persons have contravened the provisions of section 8(c) read with section 22, 23, 27, 28, 29 and 9A read with section 25A of the NDPS Act, 1985 (as amended) and thereby punishable under section 8(c), 9A, 22(c), 23, 25-A, 28, 29 of the NDPS Act, 1985 (as amended) read with section 135A of the Customs Act, 1962 in as much as these persons have admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs and it is under the Shipping Bill No.2418014 dated 14.1.2016 with the Invoice No.003 dated 29.10.2016 and it is intended to be exported. Further in the course of investigation, on 26.11.2016, DRI intercepted Speed Post article at the National Sorting Hub at St. Thomas Mount Head Office, Chennai. It contained Alprazonem Tablets, a scheduled H1 drug under NDPS Act. These items were seized under the cover of a mahazar. The seized remnant sample was deposited to the Custom Warehouse under deposit Memo Sr.No. 04/2016(N) dated 30.12.2016. The Joint Director, Custom House Laboratory, Custom House, Chennai, vide Report No. lab no. 971 972/09.12.2016 dated 27.12.2016 has reported as below: Report: Lab No. 971 (marked as P1S1(A)) Alprazolam Answers the test for the presence of Alprazolam; Report: Lab No. 972 (Marked as P1S1(B)) Ephedrine hydrochloride : Answers the test for the presence of Ephedrine hydrochloride. After investigation, the Respondent filed the Final Report under Section 22(c), 28, 29 and 9A read with Section 25A of the NDPS Act, 1985 (as amended) read with Section 8(c) ibid and Section 135A of the Customs Act, 1962. 11. The only question is to be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igorous imprisonment which may extend up to ten years and fine which may extend up to rupees one lakh. 16. In exercise of the power conferred under the Act, to notify what could constitute a 'small quantity', the Central Government issues Notification from time to time. One Notification that was issued was in S.O.No.1055(E), dated 19.10.2001. The said Notification contained a table, having six columns. Column No.1 provides Serial Numbers. Column No.2 provides the names of the Narcotic drugs or a Psychotropic Substance. Column No.3 is intended to private, a non- proprietary name for the drug, whose name is mentioned in Column No.2. Column No.4 is intended to private the commercial name of the substance. Column Nos.5 and 6 of the table respectively prescribes 'small quantity' and 'commercial quantity'. 17. In the table contained under the Notification dated 19.10.2001, about 238 substances had been identified. At Serial No.239, Column No.2 of the table states as follows: 'Any mixture or preparation that of with or without a neutral material, of any of the above drugs.' 18. In other words, apart from providing the names of about 238 indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mark towards informing what is small or commercial quantity makes clear that the determination therein is only regards the Narcotic Drug or Psychotropic Substance forming part of the mixture as different and distinct from drug or substance in dosage form. Insertion of Note No.4 in Item No.239 under S.O.2941(E), dated 18.11.2009, only further clarifies the position. Such note says that the quantity shown as small or commercial in relation to the respective drugs shall apply to (1)the entire mixture or (2)any solution or (3)any one or more Narcotic Drugs or Psychotropic Substances of that particular drug in dosage form or (4)isomers, esters, ethers and salts or salts thereof, wherever existence of such substance (meaning isomers, esters, ethers, salts or salts thereof) is possible and not just its pure content. In other words, where a drug includes isomers, esters, ethers and salts of the drug or salts thereof, the same shall be added to the drug content for purpose of determining whether the drug/substance falls under small or commercial quantity. Therefore the tablets seized from petitioners are in dosage form. Hence this Hon ble Court comes to the conclusion on reading the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The consideration has remained the same. Indeed, it cannot be otherwise. If prosecution is to contend that the entire dosage is to be taken for purpose of determining whether the possession is in small or commercial quantity, the effect would be a prosecution allegation of the company/manufacturer of the drug/substance violating the provisions of the Drugs and Cosmetics Act without charging them therefor. Though unnecessary, this Court would state that reference to a drug/substance in dosage form can only be with reference to a dosage form as permissible in law. 23. Admittedly, the learned trial Judge of the Special Court constituted under Section 36 of the NDPS Act took cognizance of the offences punishable under the various Sections of NDPS Act and also IPC offences and failed to consider the bail application filed under Section 167 of Cr.P.C. It is held by our own High Court that Jurisdiction of the Court to grant bail for an offence under NDPS Act is circumscribed by the provisions contained in Section 37 of the Act. This section starts for non obstante clause and has an overriding effect over the provisions regulating bail contained in Cr.P.C. This Section makes offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Learned Counsel for the Petitioners is that in respect of the offences under Sections 25, 25(A), 28 and 29 of the NDPS Act, the prosecution agency had to file complaint on completion of investigation within 60 days but they failed to do so and hence in terms of Section 36(A)(4) of the NDPS Act and Section 167(2) of Cr.P.C. deserves bail. It is true that since the offence under Section 25(A) of the Act is punishable with imprisonment which may extend up to 10 years and other offences to the line of Section 25(A) of the Act, the prosecution needs to file complaint on completion of investigation within 60 days from the date of remand of the accused in terms of Section 167(2) Cr.P.C. It is also true that the petitioners were remanded to judicial custody on 28.11.2016 but the complaint was filed by DRI only on 24.05.2017 i.e, beyond the period of 60 days and thereby the indefeasible right to claim bail was accrued to petitioners/accused immediately after the expiry of the 60 days. The Hon'ble Apex Court in the case of Dr.Bipin Shantilal Panchal vs. State of Gujarat, answered the question whether the accused who was entitled to be released on bail under proviso to sub-Section(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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