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ABHIJIT PRABHAKAR KONDUSKAR Versus DEPARTMENT OF REVENUE INTELLIGENCE AND 1

2016 (4) TMI 1062 - GUJARAT HIGH COURT

Seeking bail - Consignment of 37 kg of Methamphetamine seized - Applicant is involved in heinous crime of drug paddling - Earlier bail application is rejected upto the Apex Court - Held that:- delay if any in trial is solely attributable to the applicant and other co-accused, for which, no benefit could be granted to the applicant. It is submitted that as many as 16 applications were submitted either for regular, interim, temporary bail and at one stage even trial Court had observed that accused .....

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er report of Central Forensic Laboratory, New Delhi described substances seized by the DRI has no Methamphetamine it cannot be said that the applicant-accused is not involved in the crime where ample material is available for the progress to establish its case before the trial Court. No material exists for this Court to satisfy that there are reasonable grounds for believing that the applicant is not guilty of offence under NDPS Act, and that he is not likely to commit any offence while on bail. .....

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made out by the prosecution to reject this successive bail application in absence of any merit. Therefore, no case is made out to exercise powers under Section 439 of the Code of Criminal Procedure, 1973 as prayed for. - Decided against the applicant - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 17689 of 2014 - Dated:- 27-4-2016 - MR. ANANT S. DAVE, J. FOR THE APPELLANT : MR DINESH TIWARI with MS.DILBUR CONTRACTOR, ADVOCATE FOR THE RESPONDENT : MR HRIDAY BUCH, ADVOCATE, MS MOXA THAKKAR ADD .....

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nd in view of certain observations made in order dated 25.10.2013 passed by Supreme Court of India in Special Leave Petition (Criminal) NO. 7717 of 2013 whereby directions were issued for expeditious trial and even opportunity was granted to the applicant to move for bail in the event of non-completion of trial within a period of one year. That trial is not over and accordingly, the applicant has invoked jurisdiction of this Court seeking bail on various grounds. 3. In short, as alleged consignm .....

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eized material to be made. Upon hearing arguments of both the sides namely the applicant and DRI on the point of re-testing an order was passed on 28.3.2012 whereby the application for re- testing was rejected. Subsequently another application was moved before the trial Court seeking directions from the Court for copy of the test report as relied on by the prosecution be furnished to the applicant relying on the provisions of Section 80 of NDPS Act read with Section 25 of Drugs and Cosmetics Act .....

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direction to the Supreme Court to consider the application for re-testing of seized material afresh. The applicant moved the trial Court seeking certain documents which were not submitted by the prosecution as required under Section 207 of Code of Criminal Procedure, 1973 and it came to be allowed. 3.1. The applicant produced reports of Haffkin Institution about seized material that it was not Methamphetamine as reported by DFS, Gandhinagar. The applicant also relied on a report prepared by Foo .....

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of 2013 was preferred and liberty was reserved by the Apex Court vide order dated 25.10.2013 as observed earlier if the trial is not over within a year. 3.2. Thus, according to learned advocate for the applicant the trial is not proceeding in any normal course and even evidence-in-chief of PW-1 i.e. of complainant Mr. Meena has commenced and more that 50 to 60 witnesses are yet to be examined. That the applicant is in jail for about 4 ½ years pursuant to his arrest by DRI and now seized .....

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advocate for the applicant has relied on extracts of reputed journal about analysis/test by various methods adopted by DFS Gandhinagar and equations of various components of seized materials and comparison is drawn with reports of laboratory of Food and Drugs Administration, State of Maharashtra, and it is submitted that the applicant deserves to be released on bail. It is emphatically submitted that statement under Section 67 recorded is not to be considered as an evidence and now re-testing o .....

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or the applicant has referred to charge framed by learned Additional City Sessions Judge, Ahmedabad, and it is submitted that there is no involvement or connection of applicant with seizure of 10 packets of Ketamine Hydrochloride and it is submitted that any other proceedings he was granted bail by the competent Court. 3.4. Reference is made to certain paragraphs of complaint and affidavit-in-reply filed by respondent, by which, it is stated that the applicant is not guilty of the crime and that .....

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t gets superseded by the certificate of Director, Central Food Laboratory who also examines the part of sample of food article collected under relevant provisions of Act and in a case of any variance between the two reports, it was held that once there is supercession of the report of the public analyst by a superior certificate of the Director, earlier superseded reports can be effaced and excluded from the evidence. In the facts of this case, according to learned advocate for the applicant sub .....

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-A of the Act, 1940 and it would be violative of right under Article 21 of the Constitution of India. Reliance is placed on the decision in the case of State of Gujarat vs. M/s. Alpin Industries, New Delhi and Ors. [2003 Cri LJ 329] about remedy indicated in sub-section (4) of Section 25 of the Act of 1940 by requesting the Court to send the portion of the sample to be tested at the Central Drugs Laboratory. Another decision in the case of Sami Ullaha v. Superintendent, Narcotic Central Bureau [ .....

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s. Vs. State of Maharashtra [(2002) 2 Mah LJ 444] that report singed by or under the authority of the Director of the Central Drugs Laboratory is conclusive evidence of the facts stated therein while considering Section 25 (4) of the Act of 1940. 3.6. Therefore, according to learned advocate for the applicant all the factors as above considered together entitles applicant of relief as prayed for. 4. As against above, Mr. Hriday Buch, learned advocate for DRI, respondent NO.1 who opposed applicat .....

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. The information gathered further indicated that some consignment of Narcotic drugs and/or psychotropic substances is scheduled to be sent to USA/UK by courier mode through Air Cargo Complex, Ahmedabad, on 03.12.2011. Based on the above, the officers of DRI, Ahmedabad examined the goods presented for export to U.K. and U.S. by M/s. Anshanu Exports, Ahmedabad at Air Cargo Complex, Ahmedabad. Examination of the courier parcels booked for UK by M/s Anshanu Exports, Ahmedabad resulted in recovery o .....

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lock, Sangli, 416 436, Maharashtra India, Ph:912332644097, 2645797 Fax: 912332644797, Email:qa@kamud.com, Web: www.Kamud.com Inside the silver foil pack was an inner plastic bag containing an odorless off white coloured crystals (small), which was other than the goods mentioned on the main packing of the said package i.e. Whole Wheat Atta, Maida, Washing Powder and Chakki Fresh Atta and these silver foil packages were concealed and camouflaged among the food packets. The officers suspected the s .....

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rs of Central Excise, Sangli, searched the premises of M/s.Kamud Drugs Pvt. Ltd., Sangli, under panchnama dated 4.12.2011. During the course of panchnama the officers found 431 kgs of the same item i.e 1( 4methylphenyl) 2methylaminopropan1one, pertaining to different batch numbers as detailed below : Sr.No. Batch Number Manufacturing Date Quantity 1 MAD 11001 Nov- 2011 401 kgs 2 MAC 10016 Mar- 2010 17 kgs 3 MAC 10018 Mar- 2010 06 kgs 4 MAC 10021 Mar- 2010 02 kgs 5 MAC 10023 Mar- 2010 06 kgs TOTA .....

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of Central Excise, Sangli drew representative samples under panchnama and placed the said goods under seizure. 4.3. The samples drawn from the 37 packets were forwarded for analysis to the Directorate of Forensic Science, Gandhinagar (DFS) and the DFS vide their test report letter DFS/NARCFOTICS/11/NC/82 dated 7.12.2011 has reported that the samples were prima facie suspected to be 'METHAMPHETAMINE HYDROCHLORIDE' and later on vide test report letter DFS/EE/2011/NC/82 dated 20.12.2011 and .....

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House, Mumbai for analysis of the same. The Chemical Examiner, New Custom House, Mumbai vide their report dated 21.12.2011 reported that : .... each of the samples is hydrochloride salt of nitrogen bearing organic compound and gives the colour test for secondary amine. Methamphetamine and the product under reference (i.e.1( methylphenyl)2methylaminopropan1one) both contain secondary amines and given same colour test. Therefore only on the basis of colour test categorical opinion cannot be given. .....

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PHETAMINE HYDROCHLORIDE was covered under NDPS Act, 1985. The total value of 432 kgs of METHAMPHETAMINE HYDROCHLORIDE comes to ₹ 432.00 Crores approximately in the illicit international market. 4.4. Further, the officers of Central Excise during the course of Panchnama dated 04.12.2011 also seized a consignment of 81 kgs of Ketamine Hydrochloride from the premises of M/s Kamud Drugs Pvt. Limited having Central Excise Registration as AABCK1455BXD001 (a registered dealer under Central excise .....

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s Pvt. Limited N6 & 8, M.I.D.C., Kupwad Block, Sangli416436, Maharashtra under the batch numbers mentioned in the above table. 4.5. During June2011 DRI, Mumbai had searched the premises of M/s Kamud Drugs Pvt. Limited in connection with the seizure of 200.6 kgs of Ketamine Hydrochloride seized from a Tata Sumo vehicle at Andheri(East), Mumbai being illegally diverted for being exported by way of mis declaration and concealment. During the course of search officers of DRI Mumbai had also reco .....

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04.12.2011 revealed that, consequent upon the above case, the FDI had cancelled licence No.SA20B/ 1447 Dt.23.05.2008 and SA21B/ 1418 Dt.23.05.2008 granted to M/s Kamud Drugs Pvt. Limited for manufacture of Ketamine and Ketamine Hydrochloride with effect from June2011 and after the cancellation of the licence, M/s Kamud Drugs Pvt. Limited had shifted the stock of 81.650 kgs of Ketamine Hydrochloride to the dealers premises situated adjacent to the manufacturing unit. As, the manufacturers possess .....

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in respect of the said 'White Coloured powder substance' has declared the same as 'Ketamine Hydrochloride'. 4.7. The source of the said 06 kgs of Ketamine Hydrochloride seized by DRI, Ahmedabad was under investigation therefore in order to investigate and confirm the probability of pilferage of the substance Ketamine Hydrochloride, the 81.650 kgs were placed under seizure by the officers of Central Excise, Sangli as per the directives of DRI, Zonal Unit, Ahmedabad. 4.8. In addit .....

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Kg. X 1 No.) Inner Packing 1 Kg x 37 Pouch, total quantity mentioned as 37.000 Kgs. At the rate of ₹ 15,000 for a total amount of ₹ 5,55,000/- was recovered from the office premises of Shri Sujal Vijaybhjai Patel of M/s. Anshanu Exports. These 37 packets were later on recovered by the officers of DRI concealed and camouflaged among the courier parcels booked by M/s. Anshanu Exports. Ahmedabad through Air Cargo Comlex, Ahmedabad on 03.12,2011. Upon investigation by DRI, Patna it was .....

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under Section 8 (c) , 21, 22, 29 and 38 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and produced before the Hon ble Chief Metropolitan Magistrate, Ahmedabad. The Hon ble Court was pleased to remand the accused to judicial custody and the applicant is presently lodged in Central Jail, Sabarmati, Ahmedabad. 4.10.In addition to above, Mr.Hriday Buch, learned advocate for DRI has taken this Court to analysis of the contraband as per Forensic Science Laboratory, Gandhinagar and reprod .....

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icant and other co-accused, for which, no benefit could be granted to the applicant. It is submitted that as many as 16 applications were submitted either for regular, interim, temporary bail and at one stage even trial Court had observed that accused is trying to delay the trial by indulging into frequent applications devoid of merit and, therefore the application for bail is to be rejected. 6. So far as, report received from Central Forensic Laboratory, New Delhi, is concerned it is a case for .....

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in a decision in the case of Neeru Yadav v. State of Uttar Pradesh & Anr. [AIR 2015 SC 3703] whereby accused, a history sheeter involved in number of crimes which are heinous in nature bail granted by the High Court came to be cancelled by the Apex Court. 8. Thus, it is submitted that simply because the accused has remained behind the bar for about 4 ½ years and that another report of Central Forensic Laboratory, New Delhi described substances seized by the DRI has no Methamphetamine .....

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ic Science Laboratory (CFSL) which after analyzing substance in question submitted negative report for Methamphetamine and positive test for presence of Mephedrone. 9. Having heard learned advocates appearing for the parties and considering facts and circumstances of the case and decisions relied in support of respective arguments, I am of the view that involvement of the applicant in heinous crime under NDPS Act, for which, sufficient material exists for trial Court to appreciate in trial which .....

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