TMI Blog2022 (1) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... e, declare substance. The Ministry of Finance Department of Revenue vide its notification dated 28th December, 1999 has declared pseudo-ephedrine a controlled substance under the Act - the substance alleged to have been recovered from the petitioner/accused is 3.5 Kg. of pseudoephedrine which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to ₹ 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act. The other recovery from the possession of the petitioner is 15 gm. Cocaine which is also not a commercial quantity, therefore, in the instant case, bar of Section 37 of NDPS Act is not applicable. Though the petitioner is a foreigner, there is no bar to release a foreign national on bail in the gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meet him near Sethi Dhaba, Jirakpur, Punjab. On this, source Piyush came near Sethi Dhaba, Ambala road, Jirakpur and he was apprehended from there. After serving notice under section 50 NDPS Act, cursory search of accused Piyush was conducted but nothing incriminating thing could be recovered from his possession. But he confessed to have delivered the recovered substance to accused Vinay Sharma. On this, accused Piyush Srivastava was arrested in the present case and intimation regarding his arrest was conveyed to local police station. He was interrogated there but he did not co-operate and did not disclose as to from where he has procured the recovered pseudo-ephedrine. After this, he was brought to Delhi and again subjected to sustained interrogation. During interrogation he disclosed that he has procured the recovered Pseudo Ephedrine from one Praveen of Chandigarh, who is known to him as he used to purchase medicine from him. Accused Piyush also disclosed that he has kept the remaining quantity of Pseudo Ephedrine which he procured from Praveen Kumar in his office at Panchkula, Haryana. He told that he didn't know the complete address of Praveen but he can help police in tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating. 9. The offences alleged against the petitioner are U/s 9A/25 A of the NDPS Act. First and foremost question is whether rigors U/s 37 of the NDPS Act applies to the case of the petitioner or not. 10. The present petitioner is facing prosecution for charges U/s 9A and 25 A of the NDPS Act and hence obviously his case would not be covered U/s 37 of the NDPS Act. Moreover, as far as Section 9A which deals with controlled substance is concerned, there is no categorization of small quantity or commercial quantity. Therefore, concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substance. 11. Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. Controlled substance means any substance which the Central Government may, having regard to the available information as to its possible use in the production manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention, by notification be a controlled in the official Gazette, declare substance. The Ministry of Finance Department of Revenue vide its notification dated 28th Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights. 15. It was further added by the Hon'ble Court that: In view of this judgment, with which I am in agreement, it is clear that just because a foreign national is involved, it does not mean that he is to be denied the benefit of bail. 16. Therefore, in view of the judgments (supra) relied upon by the Ld. counsel for the petitioner/accused, there is no bar for releasing foreign national on bail, if the case so warrants. 17. It has also been argued by the Ld. counsel for the petitioner that in cases, where the controlled substance recovered was even much larger then that recovered from the petitioner/accused even in those cases the bail have been granted and he has placed reliance upon Niranjan Jayantilal Shah Vs. Directorate of Revenue Intelligence decided on 19.11.2013 (Bail Application No. 1202/2013), this Court granted bail to the accused where the recovery of the same controlled substances was of 100 Kg. This decision referred to had relied upon several other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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