TMI Blog2013 (1) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... Air Cargo Complex, Ahmedabad on 4.12.2011. Two courier consignments ready for being exported through courier shipping bill of Anshanu Exports ( a courier company) were examined. The first consignment was destined for USA; the contents of the cargo did not tally with the description of the courier shipping bill. The consignor was found to be fictitious and the contents of the consignment is alleged to be 6 kgs. Ketamine Hydrochloride. The second consignment was destined to UK, which contained the contents of Methamphetamine Hydrochloride of 37 kgs. where also description of the courier and all contents of cargo did not match and the consignor was found to be fictitious. One Manibhai Sharma @ Bakabhai is alleged to have been dealing with the consignment and the documents. The officers of DRI also learnt that he is the manager of M/s. Anshanu Exports. His statement was recorded under Section 67 of the NDPS Act wherein he stated that he was acting as per the instruction of the present applicant. The premise of manufacturer shown on one of the consignments namely M/s. Kumud Drug Pvt. Ltd., Sangli was raided recovering 432 kgs of Methamphetamine Hydrochloride. In the follow up action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that reliance is placed on the decision of the Apex Court and of Bombay High Court on the ground that these substances are not mentioned in Schedule I of NDPS Rules, 1985. Such decisions in the case of applicant would not be applicable. It is further contended that in the matter before the Apex Court, the drugs seized were from the clinic of the applicant, as the applicant there was a doctor having valid licence. Moreover, the Apex Court had no occasion to deal with the applicability of Rule 57 as well as Rule 53A of the Rules, which would have an applicability in the instant case. As far as the decision of the Bombay High Court rendered in Criminal Appeal No.1845 of 2010 is concerned, it is contended by the other side that the substances seized may not be mentioned in Schedule I of NDPS Rules, 1985. However, with nothing to indicate with regard to adjudication or interpretation of Rules 53A, 57 and 66, this authority should not be applicable to the case of the present applicant. 4.2 It is further the say of the respondents that in SLP(Criminal) No.9035 of 2011 pending before the Apex Court, no final order has been passed and the same is still pending. From these details, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and the punishment the offence may entail, the circumstances peculiar to the accused and the larger interest of the public etc., while considering such application for bail. As the powers are given to both the Courts, it is a discretion of the litigant to invoke jurisdiction of either of them. If the applicant chooses not to prefer any application under Section 439 before the Sessions Court that itself cannot be the ground for this Court to dismiss his application or direct him to approach this Court only after having exhausted the remedy before the Sessions Court. 7. This brings this Court to the another vital aspect on merit. As mentioned earlier, application of this applicant for grant of bail on account of alleged default made by the Investigating Agency in laying the chargesheet has been rejected when he preferred default bail under Section 167(2) of the Code of Criminal Procedure. However, while upholding the order of the learned Sessions Judge, this Court had not touched the merits of the case. It is for the first time that the matter is being pursued on merits. Therefore, it will not be possible to treat the this as a successive bail in stricto senso and uphold the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le injection or by smoking. 12(iii) Methamphetamine is a very addictive stimulant drug. It can be smoked, injected, inhaled or taken orally. It has many street names such as speed, meth and chalk. Methamphetamine Hydrochloride, the crystal form inhaled or by smoking is referred to as ice, crystal, glass and tina. 12(iv) Taking even a small amount of Methamphetamine can result in many of the same physical effects as those of other stimulants, such as cocaine and amphetamine. 12(v) Methamphetamine increases the release and blocks the brain chemical (a neurotransmitter) dopamine, leaving high levels of chemicals in brain, a common mechanism of action for most drugs of abuse. 12(vi) Methamphetamine affects the brain and creats feelings of pleasure, increases energy and elevates mood. Abuser may be addicted quickly, needing high doses more often. Adverse health affects with irregular heartbeat and increased blood pressure and variety of phychological problems. Long term abuse affect several mental disorder, memory loss and severe dental problems. 12(vii) Transmission of HIV and Hepatitis B C can be consequences of Methamphetamine abuse. 13. Before adverting to the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakhs rupees but which may extend to two lacs rupees: PROVIDED THAT the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lacs rupees. 16. The Central Government, in exercise of its powers conferred by Section 9 read with Section 76 of the NDPS Act, has made Narcotic Drugs and Psychotropic Substances Rules, 1985 ( Rules for short). 16.1 Chapter VI of NDPS Rules talks about import, export and transhipment of narcotic drug substances. Unless there is valid authorization issued by the Government, no consignment of any narcotic drug and psychotropic substance can be exported, of course, subject to provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India vs. Xie Jing Feng @ Richard Anr, the High Court was considering the request of Union of India for cancellation of bail of the accused granted by the Special Court. In these matters, the officers of NCB had raided flat of the accused. They found 7 kgs of Methamphetamine and 5 kgs of Ephedrine. These contraband articles were seized and sealed under Panchnama. The accused were arrested and they were taken into custody in connection with the seizure. The statements were recorded and it was revealed that accused Xie Jing Feng dealt with export of contraband drugs and other accused, who were his employees, assisted him. The Court noted that Methamphetamine is a psychotropic substance while Ephedrine is a controlled substance. Accused were alleged to have committed offence under Section 22 and 25A of the NDPS Act. Special Judge relying on the judgment and order passed by the Bombay High Court in Criminal Miscellaneous Application No. 3295 of 2005 , ( M.V. Henry vs. Raviprakash Goyal ) and Pradeep Dhond vs. NCB, Mumbai held that the provisions of NDPS Act were not prima facie applicable and therefore embargo under Section 37 of NDPS Act would not come into play. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government may frame and make rules for carrying out purposes of the act and not for anything in contravention to that. The schedule of the psychotropic substances under the Act is part of the act and no rule can be framed or can be interpreted in the manner which would be in contravention of the said schedule or the contravention of Section 8 or Section 22. 13. Chapter 5 of the Rules deals with the rules and grant of licence for the manufacture of drugs. Chapter 6 of the Rules deals with import, export, transhipment of narcotic drugs and psychotropic substances. Rule 53 puts a general prohibition on the import into and export out of India on the narcotic drugs and psychotropic substances specified in Schedule I subject to other provisions of that chapter. Chapter 7 deals with psychotropic substances and Rule 64 provides that no person shall manufacture, possess, transport, import interState, export interState, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. Thus, it will be clear that while Rule 53 prohibits import in and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I. Rule 64 prohib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drugs and psychotropic substances specified in schedule I cannot be imported into and exported out of India, except under an import certificate or export authorisation issued under different provisions of that chapter. Under Rule 64, no person shall manufacture, transport, possess, import interState, export interState, sell, purchase, consume, use any of the psychotropic substances specified in Schedule I. As per Rule 65, the manufacture of psychotropic substances other than those mentioned in Schedule I shall be in accordance with the conditions of the licence granted under the Drugs and Cosmetics Rules, 1945. The psychotropic substances in Schedule III should be manufactured under licence issued by the authority in charge of the drug control in the State. Rules 66(1) specifically provides that no person shall possess any psychotropic substance for any of the purposes covered by the Drugs and Cosmetics Rules, 1945 unless he is lawfully authorised to possess such substance for any of the purposes under the Rules. Thereafter, Rules 66(2) provides for possession and use of psychotropic substances by research institutions, hospitals, dispensaries, etc. It also provides for possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. The learned Special Judge did not consider the facts of the present case and without considering the facts and the legal position, granted bail following the judgment in Ravi Prakash Goel and Pradeep Dhond (supra), without looking to the difference in the facts of the cases. In view of the above facts and circumstances, I hold that the trial court committed serious error in granting bail to the accused persons and therefore, in the larger interest of justice, it is necessary to set aside the said order of bail. 18. The Apex Court in Criminal Appeal No.1845 of 2010 arising out of SLP(Criminal) No.4135 of 2010, lifted the stay granted by the Bombay High Court against the order of the Special Judge granting bail to the appellant before it. The Court noted thus: Leave granted. On June 08, 2009, the appellant was found in possession of 25 kilo grams of Methamphetamine. He was arrested and made accused in a case instituted under Psychotropic Substances Act, 1985 ( for short, the Act ). It is undeniable that the aforesaid drug Methamphetamine, though included in the Schedule to the Act does not find mention in Schedule I to the Rules framed under the Act. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to agree with the learned ASG and we are of the view that it was not proper, fair or correct for the High Court to stay the bail order passed by the Special Judge for the reason assigned in its order and to leave the matter indefinitely in the limbo. We, accordingly, lift the stay granted by the High Court against the order of the Special Judge granting bail to the appellant. In the result the appeal is allowed. 19. It would be worthwhile noticing two conflicting judgments of the Division Bench of the Supreme Court in the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira reported in (2004) 3 SCC 549 and in the case of State of Uttaranchal vs. Rajesh Kumar Gupta reported in (2007)1 SCC 355. In the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira (supra) the accused were found carrying larger quantity of Diazepam of 5 mg. tablets. The Apex Court was of the opinion that the seized article since was psychotropic substance and twin conditions for grant of bail were not satisfied, it cancelled the bail of the accused by holding thus: 6. As observed by this Court in Union of India v. Thamisharasi and Ors. (JT 1995 (4) SC 253) cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused was not called for. The impugned order granting bail is set aside and the bail granted is cancelled. The accused respondent is directed to surrender to custody forthwith. Additionally it shall be open to the trial Court to issue notice to the surety and in case the accused does not surrender to custody, as directed, to pass appropriate orders so far as the surety and the amount of security are concerned. It is made clear that no final opinion on the merit of the case has been expressed in this judgment, and whatever has been stated is the background of Section 37 of the Act for the purpose of bail. 20. Whereas in the case of State of Uttaranchal vs. Rajesh Kumar Gupta (supra), the respondent was an Ayurvedacharya operating from two clinics of his. He though advertised that his medicines were prepared from herbal plants collected from the banks of river Ganges, he was alleged to have possessed medicine containing psychotropic substance and, thereby he was charged of addicting patients with such drugs. He was arrested and charges were framed against him under Section 8(2) of the NDPS Act. In his application for bail, the Court allowed his application by hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67A provides for special provisions for medical and scientific purposes. 20. The general prohibitions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances. 21. The respondent admittedly possesses in Ayurveda Shastri degree. It is stated that by reason of a notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in addition to the said provisions. It, however, contains some more restrictions. We are only concerned with clause (b) of Rule 67A, in terms whereof the records concerning the acquisition of the substance and the details of their use in Form 7 of those Rules are to be mentioned. 27. Violation of clause (c) of Rule 67A does not appear to have been alleged against the respondent. It was, however, stated at the Bar that the respondent has complied with the said provisions and, in fact, along with his bail application requisite documents have been furnished. Rule 67A expressly permits use of certain drugs for limited medical requirements of a foreigner. It, however, appears that the sentence contained in clause (b) of Rule 67A is not complete. xxx xxx xxx xxx xxx xxx 36. In the instant case, we are of the opinion that Section 37 of the 1985 Act would prima facie have no application in view of the exception contained in Section 8 thereof read with the Rules. 37. The views which we have taken appear also to have been taken by the High Court of Delhi in Rajinder Gupta v. State as also the Bombay High Court in Pradeep Dhond v. Intelligence Officer, Narcotic Control Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.92 and 106 thereunder are relevant. N.D.P.S. Rules, 1985 contain Chapter VII and Rule 64 thereunder reads thus: 64. General Prohibition:No person shall manufacture, possess, transport, import interState, export interState, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. 31. No person, on a bare perusal of this Rule can carry on the activities mentioned therein pertaining to the psychotropic substances specified in Schedule I. This Schedule I is schedule to the Rules. Admittedly, this schedule does not include or mention the psychotropic substance in question. 32. The issue, therefore, that falls for consideration is whether merely because the psychotropic substance included in the Schedule to N.D.P.S. Act is not mentioned or included in Schedule I to the Rules, then, prohibition contained in section 8(c) is attracted and the exception thereunder becomes inapplicable? 33. It is contended before me that for the purpose of definition of the term Psychotropic Substance , The Schedule to the Act has been framed. That is for the purpose of understanding the definition and only those substances which are mentioned and included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the NDPS Act in relation to psychotropic substance. This is clear as, in the case of Ouseph vs. State of Kerala (2004) 4 SCC 446, the Supreme Court had observed that If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed and in Hussain vs. State of Kerala (2000) 8 SCC 139 (pg. 142), the Supreme Court had already held that : If it was psychotropic substance possession of the same would amount to an offence only if it was in contravention of section 8 of the Act. That section shows that no person shall possess any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder Therefore, an examination of Section 8 of the NDPS Act and the provisions of Chapter VII of the NDPS Rules is called for. Section 8:.... Section 8(c) which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale use etc. of any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is connection, it is pertinent to point out that there are several psychotropic substances which find place both in the schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example: Methaqualone, Delorazepam, Ketazolam, Loprazolam, Pipradrol, Tetrazepam. At the same time, there are others like Buprenorphine, Amphetamine, Bromazepam, Lorazepam, Phenobarbital and Pemoline which, though specified in the Schedule to the NDPS Act, do not find mention in Schedule I to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in Schedule I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule to the NDPS Act, are not part of the listed psychotropic substances in schedule of the NDPS Rules. It may be mentioned here that the Supreme Court, in the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aranchal while deciding Criminal Bail Application No.917 of 2005. A copy of that judgement is also placed on record. 35. Mr.Salvi and Mr.Thakare contended that the observations of Delhi High Court as also Punjab and Haryana High Court do not take into account the fact that if one is guilty of offences under D C Act that by itself does not mean no penalty can be imposed for violation of N.D.P.S.Act. Area and field covered by these two enactments, according to them, is not identical. Therefore, the judgement of the Delhi High Court proceeds on an erroneous basis that whenever Psychotropic substances or drugs are manufactured, sold, exported, used, possessed and consumed for medical and scientific purpose, then all that can be done is to proceed against persons involved therein for breach or violation of the D C Act alone and they cannot be proceeded or tried for breach or contravention of N.D.P.S. Act. 36. It is true that N.D.P.S. Act and D C Act operate in separate area and field and breach of one or violation or contravention of one does not mean breach or contravention or violation of the other and in a given case, both can be breached and violated and for such violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s punishable under the Act. The punishment is in section 22 and that penal provision also contains identical phraseology. In other words, contravention of any provision of the Act or any rule or order made is punishable. In this case, contravention is of section 8 and, therefore, punishable. However, section 8 itself has an exception and prohibition carved out therein would not then apply to the operation which is covered by the exception. It is well settled that the function of exception and proviso in Legislative drafting is to exclude something from the purview of the main section or to elaborately explain it. The exception which is part and parcel of section 8(c) must be given the effect as intended by the Legislature. 38. So given, as far as Psychotropic substances in the present case are concerned, operations pertaining to them are permitted because Schedule I to the Rules do not include them at all. That these substances are included in the schedule to the Act is not of any relevance because one has to see everything viz., the Act, the Rules and order made thereunder together and in a harmonious manner. It is well settled that the Psychotropic substance is included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Notwithstanding anything contained in subrule( 1) above, the Narcotics Commissioner may authorise export of specified quantities of such narcotic drug or psychotropic substance or preparation containing such narcotic drug or psychotropic substance on the basis of special import licence issued by the competent authority of the country mentioned in Sch.II which intends such import by way of issance of special import licence. The shipment of the consignment so allowed shall be accompanied by a copy of such special import licence duly endorsed by the Narcotics Commissioner. 25.1 It does not permit export of any narcotic drug or psychotropic substance or any preparation specified in ScheduleII to the countries or to the region of such country specified therein except with the authorization of the Narcotics Commissioner, who can permit specified quantities on the basis of Special Import Licence issued by the competent authority of the country mentioned in ScheduleII. 25.2 It is a fact that none of the above referred authorities even referred to Rule 53A of 1985 Rules. The decision of the Apex Court rendered in the case of State of Uttranchal vs. Rajesh Kumar Gupta (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unauthorizedly huge quantity of this psychotropic substances were to be exported. 30. This Court is also made aware of the fact that the psychotropic substances attempted to be exported unauthorizedly would fetch in the international market, huge sum running into crores of rupees ( ₹ 436 approximately). As noted in paragraph 12 of this order, Metamphatamine Hydrochloride is a very addictive stimulant drug and is structured similarly to Amphatamine . 31. Section 2(xxiii) explains psychotropic substances as follows: psychotropic substance means any substance, natural or synthetic, or any natural material o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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