2012 (3) TMI 452 - HC - Customs

Summary

Issues Involved:
1. Whether the export of Ephedrine Hydrochloride is controlled under the NDPS Act.
2. Admissibility of the petitioner's statement recorded u/s 108 of the Customs Act in NDPS proceedings.
3. Applicability of Section 37(1)(b) of the NDPS Act in granting bail.

Summary:

Issue 1: Export of Ephedrine Hydrochloride

Ephedrine Hydrochloride is a controlled substance as per Notification No. SO1296(E) dated 28.12.1999 issued by the Central Government u/s 2(vii-d) of the NDPS Act. The petitioner violated the 1993 Order issued u/s 9A of the NDPS Act, which regulates the export of controlled substances. The court clarified that Section 9(A)(1) empowers the Central Government to regulate or prohibit the production, manufacture, supply, and distribution of controlled substances, including their export out of India. The petitioner failed to comply with clauses (3), (4), and (6) of the 1993 Order, which mandates maintaining records, reporting losses, and labeling consignments for export.

Issue 2: Admissibility of Statement u/s 108 of the Customs Act

The petitioner's statement recorded u/s 108 of the Customs Act is admissible in NDPS proceedings. The court rejected the petitioner's contention that such statements could not be used against him, citing precedents like K.T.M.S. Mohd. and Noor Aga, which emphasize the voluntary nature of statements made under the Customs Act. The court noted that the petitioner's statement was not retracted and thus holds evidentiary value. The case of Ajay Aggarwal, where bail was granted, was distinguished based on its unique facts, including no recovery from the accused and allegations of coercion.

Issue 3: Applicability of Section 37(1)(b) of the NDPS Act

The court held that the petitioner is not entitled to bail under Section 37(1)(b) of the NDPS Act, which imposes stringent conditions for granting bail in NDPS cases. The court must be satisfied that there are reasonable grounds to believe the petitioner is not guilty and is unlikely to commit any offense while on bail. Given the facts, including the petitioner's involvement in another similar case, the court could not record such satisfaction. Therefore, the petition for bail was dismissed.