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Sanjay Kumar Bhartiya Versus Directorate of Revenue

2016 (3) TMI 392 - DELHI HIGH COURT

Seeking anticipatory bail - Under Sections 25A/29 of NDPS Act, 1985 - Attraction of Section 37 ibid - Held that:- the conduct of the petitioner disentitles him to the relief. Summons were sent to the petitioner for appearance on 28.08.2015 and 31.08.2015 but he sent a reply through counsel showing his inability to appear on the ground that he was in Nasik Kumbh Mela. Thereafter, he approached the High Court of Himachal Pradesh seeking protection where he was granted interim protection subject to .....

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on 09.09.2015 and the application before the Special Judge, NDPS Cases, Saket Courts, New Delhi on 10.09.2015. The second application was dismissed on 22.01.2016. The petitioner asked an another opportunity to join investigation which cannot be entertained because as stated above, number of opportunities were granted to him to join investigation but he failed to avail the same. As various summons were issued to him and he failed to appear as a result criminal complaint has been filed against him .....

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pta, J. For the Appellant : Mr Ramesh Gupta, Sr. Adv. with Mr Jaideep Malik, Advs For the Respondent : Mr Satish Aggarwala, Adv JUDGMENT Sunita Gupta, J. 1. Vide this application under Section 438 Cr.PC, the petitioner seeks anticipatory bail in SC No. 06A/2015 Vide F.No. DRI/HQ/GI/338/XVIII/ENQ-91NT - NIL/2015 under Sections 25A/29 NDPS Act. 2. Mr Ramesh Gupta, learned Senior Counsel for the petitioner submits that a false case has been registered by DRI officials under Section 25A and 29 of th .....

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nimum punishment has been provided, therefore, there is no embargo of Section 37 of the Act. Some of the co-accused have already been released on bail. As such the petitioner be also granted protection. 3. The bail application is vehemently opposed by Mr Satish Aggarwala, learned counsel for the respondent - DRI on the ground that the petitioner is not entitled to be released on bail either in law or on facts. The petitioner had approached the Himachal Pradesh High Court at the very initial stag .....

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tioner before the Himachal Pradesh High Court at Shimla was dismissed as withdrawn after hearing arguments at length on 09.09.2015. There is no change in the circumstances. Rather the situation has worsened as now despite execution of process under Section 82 Cr.PC, the petitioner has failed to appear. A complaint for non-compliance of summons issued by the competent officer of the respondent department has been filed before the court of Chief Metropolitan Magistrate, Patiala House Courts for of .....

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to be filed against 12 persons including petitioner within 60 days as number of persons are involved and qua some of the accused the offences were such that if the charge-sheet was not filed within 60 days, they would have been entitled to statutory bail under Section 167(2) Cr.PC. However, so far as the petitioner is concerned, the provisions of Section 37 of the Act are attracted. Reference was made to the averments made in the complaint where it is specifically alleged that the petitioner is .....

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ade of controlled substances under the cover of their individual legal business by sourcing controlled substances from manufacturing units located at Maharashtra and finally disposing the same as such without carrying out any manufacturing process in illicit market at Delhi at high premium price for use in clandestine manufacture of psychotropic substances by routing the consignment of controlled substance through the authorized dealer - M/s GT Biopharma Pvt. Ltd., Kala Amb of which the petition .....

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ed substance. The purchase, possession, storage of these substances were not reflected in the statutory records prescribed under the NDPS Rules, 1985 and the NDPS (Regulations of Controlled Substances) Order, 2013 respectively. The recovered substances were seized. On 17.08.2015, a consignment of 275 kg of Pseudoephedrine Hydrochloride, a controlled substance was clandestinely and fraudulently removed from the petitioner s company under parallel invoices for delivery to M/s Lakshya Traders, New .....

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was clandestinely and fraudulently removed from the factory without carrying out any process under parallel invoices in violation of the license and registration and delivered the same to an unauthorized person / firm for further disposal in illicit market. The company had also diverted 74.995 kg of ketamine hydrochloride, a psychotropic substance in the illicit market through M/s Lakhsya Traders, Delhi by mis-declaring the same as controlled substances which specifically attracts the embargo o .....

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ances and controlled substances under the Act. It was denied that the petitioner was an ordinary director or was not in any way concerned with the day-to-day affairs of the company. In fact, the documents, namely, invoices and consignment notes issued at the factory signed by the petitioner clearly indicate that the petitioner was regularly visiting the factory at Sirmaur, HP during the relevant period and was also present at the said factory at the time of removal of pseudoephedrine and ketamin .....

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same were duly received by the family members in his absence. The counsel for the petitioner vide his letter dated 31.08.2015 had informed DRI that the petitioner will appear before DRI officer in the first week of September, 2015 as he was in Nasik to attend Kumb and further submitted that his client s absence was not intentional, deliberate or wilful. But despite a number of summons issued to the petitioner for his appearance before the DRI officer on 2/3/7/10/15/30.09.2015 and 12.10.2015, th .....

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Act was not attracted in their cases. By relying upon several judgments, it was submitted that the petitioner is not entitled even to regular bail what to speak of anticipatory bail as such, the bail application is liable to be dismissed. 9. Countering the submissions of learned counsel for the respondent, learned Senior Counsel for the petitioner did not dispute that the petitioner was directed by the High Court of Himachal Pradesh to join investigation, but, it is submitted that due to medical .....

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Alprazolam hydrochloride, both psychotropic substance under the Act and 6000 tablets containing pseudoephedrine hydrochloride, a controlled substance under the Act were recovered in the presence of Sultan Ansari, manager-cum-chemist of the company and two independent witnesses. Over and above, a consignment of 275 kg of Pseudoephedrine Hydrochloride, a controlled substance was clandestinely and fraudulently removed from the petitioner s company under parallel invoices for delivery to M/s Lakshy .....

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on 37 of the Act. That being so, it is required to be seen is as to whether the statement made on behalf of prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, one cannot say that the petitioner is not guilty of the offence if the allegations made in the charge-sheet are established. It cannot also be said that there are no ground to hold that the petitioner is not guilty of said offence. That being so, there is embargo of Section 37 of th .....

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