9911796707
TMI Blog2022 (2) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... field-testing kit, they left for the destination. On reaching DHL Express, a carton covered with white colored plastic and sealed with yellow tape of DHL was shown by one Ashit Yadav. During inspection of the carton, a copy of invoice, doctor's prescription, slip of medicine and the Aadhar Card of the Petitioner herein, who was the sender of the consignment, was found. The package was being sent to Bawai Ling, Room 505, 4th Floor, Tosta Plaza, Laydaung Kam Road, near Jeyx junction, Zawana, Thingangyun, TSP, 11071, Myanmar. Before opening the package, attempt was made to join an independent witness and one Indra Raj agreed to be the independent witness to the search process. iii. In the presence of independent witness, the carton was opened and two separate bundles of medicines which were wrapped with a rubber band were found in it. One bundle contained 20 strips of 10 tables each of Pexofenadene Hydrochloride Tablets IP, Allegra and the second bundle contained 50 strips of 15 tablets each of Tramadol Hydrochloride Accetamino- PHL Tab USP, Ultracet were found. It is stated that Tramadol, being a scheduled substance is banned under the NDPS Act. Accordingly, the package was seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re signed by the seizing officer and the two independent witnesses. vii. It is stated that in the search of Shop No.5, documents stored in the computers were checked and on finding some contents therein suspicious they were taken in custody. Cash to the tune of Rs. 2,36,845/- was recovered in the locker of Shop No.5. It is stated that four computers were seized and the seizure memo and panchnama were prepared in the presence of the Petitioner, his wife and two independent witnesses. 3. Vide order dated 11.11.2021, the bail application of the Petitioner was dismissed by the Ld. ASJ Saket by stating that the Petitioner was selling and exporting medicines without a proper authorization under the NDPS Rules 1985, and the seized medicines formed a commercial quantity, which was an offence under Section 8, Section 22(3) and 23 of the NDPS Act. The Trial Court found that there is a recovery of 750 tablets of tramadol weighing 350 gm. which is a commercial quantity and the tablets were booked on the ID of the petitioner herein. It also found that during search of the shop, 300 tablets of tramadol weighing 130 gm and 375 tablets of clonazepam weighing 50.5 gm were also recovered for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l quantity in relation to a narcotic drug or a psychotropic substance the quantity of a neutral substance should not be taken into consideration and determination of quantity should be done by weighing the actual quantity of the offending drug. 7. Learned Senior Counsel placed reliance on a prescription by one Dr. Sandeep Guleria, Senior Consultant, Indraprastha Apollo Hopital, for a patient from Myanmar - Ngun Tham Bawi Ling, who had undergone a kidney surgery, and stated that these tablets were being sent to Myanmar on the basis of the prescription of Dr. Sandeep Guleria, Senior Consultant, Indraprastha Apollo Hopital. Mr. Shukla further contended that there are bills to substantiate the recovery of Ulatracet and Clonazepam from the shop of the petitioner. 8. He placed reliance on the decision rendered by this Court in Mohd. Hasan v. Customs (Bail Application No. 1136/2021) wherein this Court granted bail to a person who was carrying 110 bottles of Phensedyl to Saudi Arabia, and contended that bail should be granted to the Petitioner since his case stands on a better footing, as he is a valid license holder and is authorized to sell, distribute and store medicines under the Dru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to export the said medicines. He stated further that for exporting the medicines, the Petitioner would have to apply for an excise permit from the State Government under Rule 58 NDPS Rules 1985 and fill out a Form No. 5 for obtaining export permit and the Petitioner did not have this specific authorization which permitted export and therefore the Petitioner has violated Section 8(c) NDPS Act. He lastly submitted that investigation into the case is still being done to find out other persons who were involved with the cross-border trafficking of medicines and therefore bail application of the petitioner should be rejected. 13. Heard Mr. V.K. Shukla, learned Senior Counsel appearing for the Petitioner and Mr. Subhash Bansal, learned counsel appearing for the Respondent. I have perused the material on record. 14. A perusal of the material on record shows that a package containing 750 tablets of Tramadol weighing 350 grams was recovered from a parcel given by the petitioner herein at DHL Express Pvt. Ltd. which was to be dispatched to Myanmar. It has also been noted that the Petitioner owned two shops by the name of Ethical Enterprises where he sold medicines and the search done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad a valid authorization as per Rule 58 before exporting Tramadol. 21. A perusal of the Status Report shows that 750 tablets of Tramadol weighing 350 grams were recovered from a parcel given by the petitioner herein at DHL Express Pvt. Ltd. which was to be dispatched to Myanmar and 300 tablets of Tramadol weighing 130 grams and 375 tablets of Clonazepam weighing 50.5 grams were recovered from the shop of the Petitioner. Furthermore, the seizures at both, DHL office and Petitioner's shop were done in the presence of independent witnesses. 22. The prescription of Dr. Sandeep Guleria, Senior Consultant, Indraprastha Apollo Hospital, has been placed on record for the first time by the Petitioner before this Court. It was not placed on record before the Trial Court. A reading of the prescription does not show that Tramadol which was seized at the office of DHL Pvt. Ltd. had been prescribed to Mr. Ngun Tham Bawi Ling, who is a resident of Myanmar. Certain other prescriptions have been give for local consumption wherein Ultracet has been prescribed but this does not satisfy as to from where the petitioner had purchased those tables and whether license has been given to him to retain tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
