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2016 (8) TMI 1050 - MADRAS HIGH COURT

2016 (8) TMI 1050 - MADRAS HIGH COURT - TMI - Seeking to cancel the bail granted to the respondent by the learned Additional District and Sessions Judge (Special Court for E.C. and NDPS Act cases - bail granted on medical terms - Held that:- From the materials available on record, it is seen that the respondent has committed a heinous crime against the society. As per Section 37 of NDPS Act, there is a bar for grant of bail to accused person, who is in possession of commercial quantity. The lear .....

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e by his wife. The Hon'ble Apex Court in a number of judgments, especially in the judgments reported Kanwar Singh Meena Vs. State of Rajasthan and another [2012 (10) TMI 1114 - SUPREME COURT] and Neeru Yadav Vs. State of Uttar Pradesh and another [2015 (9) TMI 1430 - SUPREME COURT ] has held that the order enlarging the accused person on bail or granting anticipatory bail without considering the serious allegation made against the accused person and without considering as to whether any prima fa .....

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ed. Accordingly, the criminal original petition is allowed and the bail granted to the respondent by the learned Additional District and Sessions Judge (Special Court for E.C. and NDPS Act cases), Pudukottai is cancelled. - Crl.O.P.(MD)No.14252 of 2016 & Crl.M.P.(MD)No.6652 of 2016 - Dated:- 23-8-2016 - MS. JUSTICE V.M.VELUMANI For the Petitioner : Mr.C.Arul Vadivel @ Sekar Special Public Prosecutor For the Respondent : Mr.K.Chellapandian Senior Counsel for Mr.M.S.Jeyakarthick O R D E R This Cri .....

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said to have contained ?Zolfresh? Tablets having Zolpidem substance. The parcel was transported to one Abu, booked by Mohamed Syed Mustafa/A1, who was working as Medical Representative of M/s.Abbott India Ltd., Mumbai. In the presence of Mohamed Syed Mustafa, the parcel was opened and it was found that 13 boxes of Zolfresh 10 x 10 x 10 Tablets serially numbered from 353 to 359 and 362 to 367 along with Invoice No.77573, dated 23.04.2016 of M/s.P.L.A. Kanagu Pharma, 10-C, Alexandria Road, Canton .....

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chy, used to supply Zolfresh Tablets to Abu of Chennai. He used to procure the Tablets by placing orders in the name of M/s.Athma Mind Centre, Trichy, and supplied the same to Abu. The said Sureshkumar gave mobile number of Mohamed Syed Mustafa to Abu, who placed order for 13000 numbers of Zolfresh Tablets. The said Mohamed Syed Mustafa procured the Tablets from M/s.P.L.A. Kanagu Pharma, Trichy and after receiving money from Abu, he dispatched the same to him. Mohamed Syed Mustafa/A1 was arreste .....

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nd he gave his mobile number. He has also confessed that as per the instructions of Jamaludeen, he used to hand over Zolfresh Tablets to Ravi or Raja, who would call him over phone and take delivery of the Tablets from Abuthathir, the respondent herein. The respondent used to receive ₹ 2,000/- to ₹ 5,000/- for this work. He has also confessed that Sureshkumar asked him to contact Mohamed Syed Mustafa and he knew that the drugs are to be sold under the prescription of a Doctor, a regi .....

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blets (2090 strips) in the name of M/s.Athma Mind Care Centre and made payments in cash and sent the same to Abuthathir. 4. The learned Special Public Prosecutor appearing for the petitioner contended that the respondent filed Cr.M.P.No.1405 of 2016 before the Special Court for EC and NDPS Act cases, Pudukottai and the said application was dismissed on 24.05.2016. Again, he filed Cr.M.P.No.1882 of 2016. The learned Special Public Prosecutor filed written objections and opposed the bail applicati .....

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ground that the respondent is suffering from diabetes and he needs treatment and personal care by his wife. The learned Additional District and Sessions Judge has failed to consider that as per Section 37 of NDPS Act, it is the burden on the accused to prove that he is not guilty of the offence and that he would not commit an offence, if he is enlarged on bail. The Hon'ble Apex Court in a number of judgments has held that the accused persons must prove both the ingredients and then only, the .....

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volve in similar offence and the respondent has committed heinous crime endangering the lives and liberty of the people and therefore, prayed for cancellation of bail. 7. The learned Special Public Prosecutor submitted that the weight of 13000 Zolfresh Tablets procured by the respondent and transported to him is 4.745 K.Gs and the quantum of Zolpidem, which is psychotropic substance, is more than commercial quantity. Therefore, Section 37 of NDPS Act is attracted and the learned Additional Distr .....

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will tamper with the evidence, influence the witness or abscond; and (d) whether the accused person will indulge in similar offences, if enlarge on bail or granted anticipatory bail. 8. In support of his submissions, the learned Special Public Prosecutor relied on the following judgments: (i) AIR 2008 SC 2576 [N.R.Mon Vs. Md.Nasimuddin], wherein in paragraphs 5 to 9, it has been held as follows: 5. As rightly contended by learned counsel for the appellant, the effect of Section 37 has not been .....

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et aside the said order and allow this appeal. We direct that the trial be concluded expeditiously.? 7. In Public Prosecutor of Customs, New Delhi Vs. Ahmadalieva Nodira [2004 (3) SCC 549], it was noted at page 552 as follows: 6. As observed by this Court in Union of India v. Thamisharasi [ 1995 AIR SCW 2543], Clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public .....

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concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression ?reasonable grounds? means something more than prima facie grounds. It contemplates substantial probable causes for .....

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Sl. No. 43 of the Schedule which reads as follows has not been kept in view: Sl. No. International non-proprietary names Other non-proprietary names Chemical name 43 * DIAZEPAM * * * * 7-Chrolo-1, 3-dihydro-1, methyl-5-phenyl-2H-1, 4-benzondiasepin-2-one * In addition, the report of the Central Revenue Control Laboratory was brought to the notice of the High Court. The same was lightly brushed aside without any justifiable reason.? 8. In Union of India v. Abdulla [2004 (13) SCC 504],it was noted .....

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t coming to the prima facie conclusion that there was no material against the respondent to convict him for the charges alleged against him mechanically proceeded to grant the bail. This Court in Narcotics Control Bureau v. R. Paulsamy [2000 AIR SCW 4131] has held that in matters arising out of the Narcotic Drugs and Psychotropic Substances Act grant of bail is controlled by Section 37 of the Act and it is mandatory for the Court to hear the Public Prosecutor and come to the prima facie conclusi .....

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and Psychotropic Substances Act, 1985, (the NDPS Act) and sentenced to rigorous imprisonment for 10 years and a fine of ₹ 1000. On appeals being filed, the learned Judge suspended the sentence and the respondents were enlarged on bail on executing a personal bond for a sum of ₹ 50,000 with one surety for the like amount, to the satisfaction of the trial court. We have perused the order passed by the learned Judge and we find that there is not even a whisper about the condition conta .....

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ed the granting of bail it must be presumed that this is an order covered under Section 37(3) read with Section 439 Cr.P.C. To say the least, the argument appears to be baseless. We cannot accept the contention that in a matter involving seizure of commercial quantity of a substance prohibited by the NDPS Act when the Public Prosecutor appears on notice of the bail application he would be standing there as a mute spectator not opposing the bail application unless he was at the beck of the accuse .....

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in paragraph 8, it has been held as follows: 8. In the aforesaid background, this does not appear to be a case where it could be reasonably believed that the accused was not guilty of the alleged offence. Therefore, the grant of bail to the accused was not called for. The impugned order granting bail is set aside and the bail granted is cancelled. The respondent-accused is directed to surrender to custody forthwith. Additionally, it shall be open to the trial court to issue notice to the surety .....

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the case and the submissions made on behalf of the respective parties the point which emerges for determination is up to what extent can a statement under Section 67 of the NDPS Act be relied upon for convicting a person accused of having committed an offence under the provisions of the said Act. In order to arrive at a decision in regard to the above, it will also have to be considered whether such a statement would attract the bar both of Sections 24 to 27 of the Evidence Act as also Article .....

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n any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.? 41. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terroris .....

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stringent and continue to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any rule or order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he .....

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er a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.? (iv) 2008 (1) SCC (Cri) 346 [Sanjay Kumar Kedia Vs. Narcotics Control Bureau and another], wherein in paragraphs 7, 8 and 11 to 13, it has been held as follows: 7. Mr.Tulsi has first and foremost argued that the allegations against the appellant were that he had used the network facilities provided by his companies for arranging the supply of banned psychotropic substances .....

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e drugs were not included in Schedule I of the Narcotic Drugs and Psychotropic Substances Rules, 1985 in terms of the Notification dated 21-2-2003 and were also recognised by the Control Substances Act, a law applicable in the United States, as having low potential for misuse and it was possible to obtain these drugs either on written or oral prescription of a doctor, the supply of these drugs did not fall within the mischief of Section 24. He has further argued that in the circumstance, the com .....

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also been pointed out that the appellant had been charged for offences under Sections 24 and 29 of the Act which visualised that a person could be guilty without personally handling a psychotropic substance and the evidence so far collected showed that the appellant was in fact a facilitator between buyers and certain pharmacies either owned or controlled by him or associated with the two companies and that Section 79 of the Information Technology Act could not by any stretch of imagination gua .....

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nce only under Information Technology Act itself. 12. We are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail, that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted. 13. For the reasons recorded above, we find no merit in this appeal, which is accordin .....

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ddressed to one Abu. The petitioner issued summons to the respondent to appear on 28.04.2016 and the respondent appeared before the petitioner. The statement alleged to have given by the respondent is not voluntary. He has not admitted that the contraband in question was ordered by him and sent to him. The denial of bail is exception and a person, who alleged to have committed an offence, is innocent till his allegations against him are proved beyond reasonable doubt. The respondent is a diabeti .....

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d in question is commercial quantity or not when the contraband is a mixture with other substances. The quantum of Narcotic mentioned in schedule alone taken into consideration as to whether the contraband in question is small, intermediate or commercial quantity. Only by a Purity Test, it can be decided. The alleged psychotropic substance in the Tablets in question is less than commercial quantity and further, it is not psychotropic substance and therefore, NDPS Act is not applicable and only D .....

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cal manner, unless the order of the lower Court granting bail is perverse and granted without considering the facts and circumstances of the case. Therefore, the order of the learned Additional District and Sessions Judge cannot be set aside. 10. In support of his submissions, the learned Senior Counsel appearing for respondent relied on the following judgments: (i) 1995 (1) SCC 349 [Dolat Ram and others Vs. State of Haryana], wherein in paragraph 4, it has been held as follows: 4. Rejection of .....

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due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by e .....

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oint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with dispatch and the role of the Magistrate is to oversee th .....

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the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation w .....

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ion 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh case [1986 (4) SCC 481 : 1986 SCC (Cri) 511 : 1986 (3) SCR 802] the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused mi .....

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c. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.? (iii) Haidani Dei Vs. State of Orissa and others [1994 Cri. L.J. 660], wherein in paragraph 11, it has been held as follows: 11. If the aforesaid be the position in law when a person is released even with the aid of proviso (a) .....

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pecial Court is same as that visualised by Section 167, Cr.P.C., as would appear from Clauses (b) and (c) of Sub-section (1) of Section 36-A of the Act. No doubt, Section 37 of the Act starts with a non obstante clause : ("Notwithstanding anything contained in the Code of Criminal Procedure, 1973"); what has been stated in Clause (b)(ii) of Section 37 of the Act would be applicable, according to us, when the question of release on bail is being considered. But, once an accused has been .....

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evidence or witnesses; (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation; (v) there is likelihood of his fleeing to another country; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency; (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are of course illustrative and not exhaustive. Remand to custody merely because of non-fulfilment of the requirements of Su .....

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respondent relied on the judgment reported in 2012 (1) LW (Crl.) 70 [M.Veludurain Vs. The State, Rep. by the Superintendent of Customs, Special Narcotic Cell, Nagercoil], wherein in paragraphs 11, 14 and 16, it has been held as follows: 11. While deciding the relevant clause of Section 21, under which the accused should be punished, in terms of the above definitions, and in the light of the above notification issued by the Central Government, in E.Micheal Raj's case, the Hon'ble Supreme .....

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t the accused was found in possession of heroin, which was an "intermediate quantity". The Hon'ble Supreme Court, ultimately, in Paragraph No.4, held as follows:- 4. The accused-appellant was charged with the offence committed under Section 8(c) read with Sections 21 and 29 of the NDPS Act by the Intelligence Officer, Narcotic Control Bureau. The Special Judge for Trial of Cases under the NDPS Act found that the substance found in possession of the accused was an opium derivative w .....

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ciary of the transaction, he would not be awarded the maximum sentence and would be awarded the minimum sentence of 10 years rigorous imprisonment and a fine of rupees one lakh, in default of payment of fine rigorous imprisonment for one more year. 13. Very recently, in Harjit Singh vs. State of Punjab reported in 2011 (4) SCC 441, the Hon'ble Supreme Court had an occasion to consider the Judgment in E.Micheal Raj's, case. That was a case, where the accused was allegedly found in possess .....

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hat as per E.Micheal Raj's, case, the accused should be convicted only under Section 21(b) of the NDPS Act for having found in possession of the intermediate quantity of opium. But, the Hon'ble Supreme Court did not agree with the said contention of the accused. The Hon'ble Supreme Court, after referring to the definition of opium, as found in Section 2(xv) of the NDPS Act and the notification issued by the Central Government, in Paragraph Nos.15, 16, 17, 21, 22 and 23 of the said Ju .....

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to any chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary. In case opium is not mixed up with any other material, its chemical analysis is not required at all. "Of course, an analysis will always be necessary if there is a mixture and the quantity of morphine contained in mixture has to be established for the purpose of definition .....

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recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus, the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered .....

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vatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity. 23. The judgment in E. Micheal Raj (Supra) has dealt with heroin i.e., Diacetylmorphine which is an Opium Derivative within the meaning of the term as defined in Section 2 .....

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hai Barot v. State of Gujarat, (2005) 7 SCC 550, this Court dealt with a case where the black-coloured liquid substance was taken as an opium derivative. The FSL report had been to the effect that it contained 2.8% anhydride morphine, apart from pieces of poppy (Posedoda) flowers. This was considered only for the purpose of bringing the substance within the sweep of Section 2(xvi)(e) as opium derivative' which requires a minimum 0.2% morphine.? 14. Thus, a close reading of the above Judgment .....

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Section 2(xi)(b) of the NDPS Act [i.e., a manufactured drug], then, it is absolutely necessary for the prosecution, by conducting Purity Test, to find out that the morphine content was more than 0.2%. Therefore, in deciding the case involving opium, there may not be any difficulty henceforth, in view of the Judgment of the Hon'ble Supreme Court in Harijit Singh's case. Thus, it is crystal clear that the law laid down in E.Micheal Raj's, case is not applicable to the opium cases in th .....

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arties were mentioned in the Lorry Receipt. The respondent in his statement under Section 67 of the Act before the Officials admitted that as per the instructions of one Jamaludeen of Ramanathapuram, who is now in Dubai, had procured on earlier occasion, the same schedule drug from Sureshkumar, the then medical representative of Abbott India Ltd. Similarly, in the instant case also, there is a prima facie case that A1 procured 13000 Zolfresh Tablets, which is a schedule drug and transported to t .....

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o 20 years and a fine of ₹ 1,00,000/-, which may extend to ₹ 2,00,000/-. As per Section 37 of NDPS Act, the burden is on the accused person to prove that he is not guilty of offence and he would not commit an offence, if he is enlarged on bail. Further, only when the Court is satisfied on reasonable ground that the accused person is not guilty, can enlarge the accused person on bail, otherwise, there is a bar to enlarge the accused on bail, if he was in possession of contraband, more .....

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n opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the law being .....

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