TMI Blog2012 (3) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh of M/s. Speed Cargo and the petitioner, proprietor of the said exporting firm were contacted and asked to appear for the examination of the goods. They arrived at the export shed with the copies of export documents of the said consignment. Mr. Rizwan acknowledged the said consignment being exported against Bill No. 1653146, Invoice No. 19, dated 06.10.2010. The consignment consisted of 263 packets of various sizes containing various pooja items like Agarbatti, Gangajal-Pooja, MDH Methi Masala, Attar, Sari Ladies, Pooja Shawls, Artificial Flowers, Chunari, Cotton Wicks, Chandan powder, Roli, Sindur, Kapoor, Dhoop and Fog of mango wood-pooja etc including 7 packets containing white power/granules suspected to be Ketamine concealed under sarees and old and used clothes. It was revealed that the consignment was being exported to M/s. Madhvi Musical Pooja Centre INC24, 7955 Torbram Road, Bramton, Ontario, Canada and the total declared cost of the said consignment was ₹ 14,84,126/-. On examination, it was found that seven packets from Serial No. 91 to 96 contained white colour polythene packets containing white power hidden beneath the old and used clothes and sarees. The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) there was no Control Order relating to export of Ephedrine Hydrochloride from out of India and (b) the statement of petitioner recorded under section 108 of the Customs Act could not be read against him in the proceedings under the NDPS Act. Reliance was placed on the cases of (i) K.T.M.S. Mohd. and Another Vs. Union of India, (1992) 3 SCC 178, (ii) Noor Aga Vs. State of Punjab Another, 2008 [3] JCC [Narcotics] 135, and (iii) Ajay Aggarwal Vs. Narcotics Control Bureau, of this Court (vide Bail Appln. 2036/2004, decided 20.01.2005). 5. Per contra, the contention of learned counsel for the Department is that Ephedrine Hydrochloride was a controlled substance under clause (viid) of section 2 of NDPS Act and that an order was also passed by the Central Government under section 9A of the NDPS Act. It was submitted that the petitioner had violated all the clauses of the said order. It was submitted that the export of Ephedrine Hydrochloride out of India was prohibited as per the said order. Reliance was placed on the case of Ved Prakash Goel Vs. Commissioner, Central Bureau of Narcotics of this court (vide Crl. M(M) 2076/1999 decided on 26.5.2000). It was next submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently misconceived. From the plain reading of Section 9(A), it would be seen that sub section (1) was general whereunder the Central Government was empowered to regulate or prohibit the production, manufacture, supply and distribution of the controlled substances and trade and commerce therein. Sub section (2) was without prejudice to the general power of the Central Government under sub section (1) and expanded the powers of Central Government in the order made under sub section (1) may also provide for regulating by licenses, permits or otherwise, production, manufacture, possession, transport, import interstate, export interstate etc. of any controlled substance. In other words, Sub section (2) stipulates that while controlling and regulating the controlled substances and passing an order in this regard under sub section (1), the Central Government may also regulate its production and manufacture etc. by licenses, permits or otherwise. Thus sub section (2) apparently does not deal with the export of controlled substances out of India, but that does not mean that the export out of India of controlled substances was not controlled or prohibited. While sub section (2) provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of the consignee, exporters and importer and the documents to be preserved for a period of two years. 11. Having regard to the facts as noted above, it would be seen that Ephedrine Hydrochloride was a controlled substance as per the notification dated 28.12.1999 of Central Government issued under clause (vii-a) of Section 2 of NDPS Act and further that in terms of the order of 1993 issued under Section 9A of NDPS Act by the Central Government, the export of aforesaid controlled substance was not permissible without following the requirements of clauses (3), (4) and (6) of the aforesaid order. Apparently, there are violation of all these clauses by the petitioner in the instant case. 12. Submissions of learned counsel for the petitioner that the statement of the petitioner recorded under Section 108 of Customs Act could not be read against him in a proceeding under NDPS Act is apparently untenable. The reliance was placed on K.T.M.S. Mohd. (supra) and Noor Aga (supra) was misplaced. The case of K.T.M.S. Mohd. (supra) related to statement recorded under Section 40 of FERA. It was held that FERA and IT are separate and independent Acts and operating in different fields. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the Order of Central Government made under Section 9 of the NDPS Act. There is apparently violation of all the clauses i.e. (3), (4), (6) of the said Order of 1993. 15. Further, since the offence was apparently seen to have been committed under Section 25A which is punishable with rigorous imprisonment for a term which may extend to 10 years and also with fine which may extend to ₹ 1 lac, the petitioner is also not entitled to be released on bail in view of Section 37 (1)(b) of NDPS Act. The provisions contained in this section are made applicable and operative notwithstanding anything contained in Cr.P.C. . The limitation of granting bail specified in clause (b) of sub section (1) of Section 37 are in addition to the limitations under Cr.PC or any other law for the time being in force for grant of bail. Having regard to the entire factual matrix, it is not possible for this Court to record satisfaction that there are reasonable ground to believe that the petitioner is not guilty of the offences for which he has been charged and that he is not likely to commit any offences while on bail. Therefore, the petitioner cannot be granted bail in view of provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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