TMI Blog2017 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he was receiving monetary consideration from the alleged supplier of contraband Subair. He has admitted in his statement recorded under Section 67 of the NDPS Act that he was transacting with one Subair and the said transactions were not known to anybody else in the office. He has been enlarged on bail by the Sessions Court. Petitioner has been in custody since December 2, 2016. The offences alleged against him are not punishable with death or life imprisonment - petitioner deserves to be enlarged on bail with stringent conditions - petition allowed - decided partly in favor of petitioner. - Criminal Petition No. 303/2017 - - - Dated:- 28-4-2017 - P. S. Dinesh Kumar, J. For the Petiitoner : Shri. Hashmath Pasha Shri. H. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint before the learned Sessions Judge and the same is registered as Spl.C.C.No.51/2017; (d) that the prosecution has not complied with the provisions of Section 42 of the NDPS Act by recording the information in writing. It is stated in paragraph No.3 of the complaint that the customs authorities had received credible information with regard to the export of the alleged contraband. Documents annexed to the complaint do not include any record of such information. Therefore, the entire proceedings are vitiated. In support of this contention, reliance is placed on the following authorities: (i) AIR 1994 SC 1872 (State of Punjab v. Balbir Singh) (ii) (2004)12 SCC 266 (Sarija Banu alias Janarthani alias Janani and another v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahim Mansuri v. State of Gujarat reported in (2000)2 SCC 513, the burden cast upon the petitioner under Section 35 of the NDPS Act can be discharged by relying upon the prosecution evidence. The statement of accused No.2 clearly shows that the petitioner herein was not having any knowledge of the acts and omissions committed by accused No.2 and particularly, the export of alleged contraband; (h) that the complaint filed by the customs authority is not maintainable as the provisions of Section 38 of the NDPS Act are not complied with. The Partnership Firm, which had obtained the IE code has not been arraigned as an accused. Hence, the complaint is unsustainable in law as held by the Hon ble Supreme Court in the case of Aneeta Hada v. Godf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act. 8. Adverting to petitioner s argument that, Firm was not prosecuted, Smt. Nagashree submitted that as the persons, who have committed the offences having been prosecuted, it would not be necessary to prosecute the Company. 9. Placing reliance on paragraph No.9 of the authority of the Hon ble Supreme Court in the case of Pushpabai Parshottam Udeshi and others v. Ranjit Ginning and Pressing Co. Pvt. Ltd and another reported in AIR 1977 SC 1735, she submitted that though it is claimed by the petitioner that the entire act was executed by the employee, petitioner cannot be escape his vicarious liability. 10. Smt. Nagashree, drew the attention of this Court to a Multilingual Dictionary of Precursors and Chemicals published by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggle the controlled substance to Malaysia; that the accused had succeeded in smuggling in the past also, which is corroborated by the cash deposits received by accused No.2. 15. Section 37 shall be applicable, if the offences alleged are punishable under Sections 19 or 24 or 27A of the NDPS Act. Petitioner is not alleged of these offences. Therefore, Section 37 shall have no application. 16. The IE code is in the name of petitioner s firm. Shipping Bills are also prepared in the name of the firm. A careful reading of the statements of accused No.2 recorded on January 23, 2017 and particularly the answers to questions No.15 16 reveal that he was interacting with one Subair on phone and receiving payments, which were being credited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra. 20. In view of my finding that Section 37 of NDPS Act is not applicable, this petition is considered within the parameters of Section 439 Cr.P.C. The investigation is complete and complaint has been lodged. The accused No.2, has admitted that he was receiving monetary consideration from the alleged supplier of contraband Subair. He has admitted in his statement recorded under Section 67 of the NDPS Act that he was transacting with one Subair and the said transactions were not known to anybody else in the office. He has been enlarged on bail by the Sessions Court. Petitioner has been in custody since December 2, 2016. The offences alleged against him are not punishable with death or life imprisonment. In the circumstances, in my con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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