2011 (2) TMI 1215 - HC - Indian Laws

Applications seeking cancellation of bail - huge quantity of 25 Kgs. of Methampethamine was recovered from possession of accused nos.1 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 - 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 - Held that - 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 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 trial court committed serious error in granting bail to the accused persons and therefore applications are allowed and the orders granting bail to accused are hereby set aside. The accused persons shall immediately surrender before the Special Judge NDPS Act and they shall be taken in custody

Issues Involved:
1. Cancellation of bail granted to accused nos. 1 to 6.
2. Application of NDPS Act and Rules to Methamphetamine.
3. Validity of licenses and authorizations under Drugs and Cosmetics Act.
4. Interpretation of Section 8(c) and Section 22 of NDPS Act.
5. Relevance of previous judgments and their applicability.

Detailed Analysis:

1. Cancellation of Bail Granted to Accused Nos. 1 to 6:
The Union of India filed applications seeking the cancellation of bail granted to accused nos. 1 to 6 by the Special Judge. The accused were intercepted with 25 kg of Methamphetamine, a psychotropic substance, and their statements were recorded under Section 67 of the NDPS Act. The Special Judge granted bail to the accused on the grounds that Methamphetamine, although listed as a psychotropic substance under the NDPS Act, was not included in Schedule I of the NDPS Rules, thus questioning the applicability of the NDPS Act.

2. Application of NDPS Act and Rules to Methamphetamine:
The prosecution contended that Methamphetamine is a psychotropic substance as defined in Section 2(xxiii) of the NDPS Act and is listed in the Schedule of the Act. Section 8(c) prohibits the production, manufacture, possession, sale, transport, etc., of any narcotic drug or psychotropic substance except for medical or scientific purposes. Section 22 provides punishment for contravention in relation to psychotropic substances. The defense argued that Methamphetamine is not listed in Schedule I of the NDPS Rules, thus the general prohibitions under Rules 53 and 64 do not apply.

3. Validity of Licenses and Authorizations under Drugs and Cosmetics Act:
Accused no. 5 claimed to have a certificate of import and export and a license to sell, stock, and distribute certain medicines under the Drugs and Cosmetics Act. However, the court noted that the Importer-Exporter Code and the license from the Food and Drug Administration did not authorize dealing with Methamphetamine, a Schedule X drug under the Drugs and Cosmetics Act. The court found these licenses insufficient to exempt the accused from the provisions of the NDPS Act.

4. Interpretation of Section 8(c) and Section 22 of NDPS Act:
Section 8(c) prohibits various operations involving narcotic drugs and psychotropic substances except for medical or scientific purposes, and Section 22 penalizes contraventions of these provisions. The court emphasized that the burden of proof lies on the accused to show that their actions fall within the exceptions provided by the Act. The accused failed to demonstrate any lawful authorization for their possession and transport of Methamphetamine, thus prima facie violating Section 8(c) and being liable under Section 22.

5. Relevance of Previous Judgments and Their Applicability:
The defense relied on several judgments, including Rajinder Gupta vs. State and State of Uttaranchal vs. Rajesh Kumar Gupta, to argue that the NDPS Act does not apply to Methamphetamine as it is not listed in Schedule I of the NDPS Rules. The court distinguished these cases based on their facts, noting that in those cases, the accused had some form of authorization under the Drugs and Cosmetics Act, which was not the case here. The court also referred to D. Ramkrishnan vs. Intelligence Officer, Narcotics Control Bureau, where the Supreme Court held that a license under the Drugs and Cosmetics Act does not authorize dealing in psychotropic substances under the NDPS Act without specific authorization.

Conclusion:
The court concluded that the Special Judge erred in granting bail to the accused without considering the facts and the legal position. The orders granting bail were set aside, and the accused were directed to surrender immediately. The court rejected the request to stay the operation of this order for six weeks.

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