TMI Blog2013 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule to the Act otiose but would frustrate the very objective of the Act, particularly keeping in mind huge quantity of psychotropic substance seized from the applicant. No case is made out to exercise discretionary powers under Section 439 of the Code of Criminal Procedure, 1973 in favour of the applicant - application dismissed - decided against applicant. - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 10332 of 2013 - - - Dated:- 5-7-2013 - MR.JUSTICE ANANT S. DAVE MS. BHAVINI H JANI, ADVOCATE FOR THE APPELLANT MR PS CHAMPANERI, ADVOCATE, MR JK SHAH, APP FOR THE RESPONDENT ORAL ORDER 1. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 [for short, the Code ] in connection with File No.DRI/AZU/NDPS01/ 2011 registered as NDPS Special Case No.5 of 2012 with the Directorare of Revenue Intelligence, Ahmedabad, for the offences punishable under Sections 8(c), 22, 23, 24, 25, 27A, 28, 29, 30 and 38 of the Narcotic Drugs Psychotropic Substances Act, 1985 [for short, `NDPS Act ] read with Section 120B of the Indian Penal Code. 2. Learned advocate for the applicant submits that charge sheet is filed on 31.05.2012 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argo Complex, Ahmedabad. 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 of 37 packets. Upon opening the said 37 packets, the officers found that each packet contained an inner aluminum foil package with sticker label containing the following markings: ∙ Kamud Drugs Pvt Ltd, ∙ 1(4methylphenyl) 2methylaminopropan1one ∙ Batch No.MAD1101. ∙ Gross wt. ∙ Tare wt. ∙ Net Wt.1.000 Kgs ∙ Mfg. Date Nov2011 ∙ Exp Date ∙ Pouch No.10/37 ∙ Storage Condition : Protect from Light ∙ N6 8, MIDC, Kupwad Block, 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e samples under panchnama and placed the said goods under seizure. 3.2 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 test report letter DFS/EE/2011/NC/84 dated 15.02.2012 confirmed that the samples drawn from the 37 packets tested positive for 'METHAMPHETAMINE HYDROCHLORIDE'. The DFS also confirmed that 'METHAMPHETAMINE HYDROCHLORIDE' was covered under the NDPS Act, 1985. The total value of the 37 kgs of seized material comes to ₹ 37 Crores in the illicit international market. The samples drawn by the officers of Central Excise, Sangli were forwarded to the Chemical Examiner, New Custom 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, M.I.D.C., Kupwad Block, Sangli416436, Maharashtra under the batch numbers mentioned in the above table. 3.4 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 misdeclaration and concealment. During the course of search officers of DRI Mumbai had also recovered another consignment of about 826 kgs of Ketamine Hydrochloride contained in 32 drums from a farm house situated about 3 kms from the factory premises of M/s Kamud Drugs Pvt. Limited which was actually removed illegally from the factory premises of M/s Kamud Drugs Pvt. Limited and the said quantity was also placed under seizure by the officers of DRI, Mumbai. 3.5 Inquiries with the staff of M/s Kamud Drugs Pvt. Limited available at the factory premises during the course of Panchnama dated 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 Ket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Goyal in Criminal Misc. Application No.3295 of 2005 and order passed by the Apex Court in Criminal Appeal No.1845 of 2010 arising out of SLP [Cr.] No.4135 of 2010. After hearing learned counsels for the parties and considering the provisions of Sections 8, 9, 22 and 76 in the context of definition of Section 2[xxiii] of NDPS Act and Rules 53 and 54 of the NDPS Rules, a coordinate bench of this Court vide order dated 31.01.2013 dismissed the said bail application. Paras 29 to 35 of the said judgment read as under: 29. The Court is conscious of the rigours of Section 37 of the NDPS Act where two conditions which are cumulative and not alternative, are necessary to be satisfied that the accused is not guilty of commission of offence and no recurrence at his end is possible while on bail. It is also to be noted that exceptions of Section 8 referred to specifically in the provision will not come to the rescue of the present applicant as the present applicant is either not a medical practitioner nor is he having any manufacturing unit nor is he, in any manner, connected with any medicinal preparations. It is also alleged in the complaint itself that surreptitiously and unauthorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carving out purposes of this Act and not in contravention thereof which of course would be subject to the provision of Section 8 of the NDPS Rules, 1985 framed and notified pursuant to these provisions of Section 9 and Sections permit and regulate such operations , subject to provision of Section 8. In other words, when rules are made to permit and regulate operations of narcotic drugs and psychotropic substances, they cannot be in contravention of Section 8 of the act and the same need to be construed essentially keeping in mind exception to Section 8. Any other interpretation would make the provisions of the Act subservient to the rules and orders. 35. The question, therefore, would need to be answered that huge quantity of psychotropic substances seized from the accused even when is not mentioned in ScheduleI it would still become an offence under Section 8(C) read with Section 22 and he cannot be enlarged on regular bail for not having fallen under any of the exceptions carved out in the provision itself. Interpretation otherwise than this would render not only the Schedule to the Act otiose but would frustrate the very objective of the Act, particularly keeping in mind hu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
