2012 (9) TMI 501 - HC - Customs

Petition for cancellation of bail granted - the assessee is alleged to have been found in possession of a controlled substance invoking applicability of rigours of Section 37 of the NDPS Act - Held that - At this stage after the order had been dictated, learned counsel for the petitioner states that the goods seized from the respondent are not controlled substances but are psychotropic substances, this is strange as Special Judge, NDPS, New Delhi had proceeded on the basis that the respondent had been charged with possession of a controlled substance chargeable under Section 9A r.w.s. 25A of the NDPS Act and there is no averment or ground in the petition that the seized substance is not a controlled substance or that Sections 9A and 25 A are not applicable. In fact, the present petition is supported by an affidavit of an officer of the Customs Department and has been pending in this Court for the last more than four years. However, in the interest of justice, one opportunity is given to the petitioner to amend its petition, if it so desires, subject to payment of costs of Rs.50,000/-. Half the costs shall be paid to the respondent and the other half shall be deposited with the Delhi High Court Legal Services Committee within two weeks.

Summary

Issues involved:
1. Cancellation of bail granted under NDPS Act.
2. Applicability of Section 9A and Section 25A of the NDPS Act.
3. Interpretation of Section 37(1)(b) of the NDPS Act.
4. Contravention of orders made under Section 9A.
5. Applicability of Section 37 in relation to controlled substances.
6. Validity of judgment in Rizwan Ahmed case.
7. Nature of seized substances - controlled or psychotropic.

Analysis:

1. The petition sought the cancellation of bail granted to the respondent under the NDPS Act. The Special Judge had granted bail based on the charges under Section 9A read with Section 25A of the NDPS Act, noting that the rigour of Section 37 was not applicable to the case.

2. The petitioner argued that the respondent, found in possession of a controlled substance, should be punished under Section 25A of the NDPS Act. The petitioner contended that the rigours of Section 37 of the NDPS Act should apply, citing a judgment in Rizwan Ahmed case to support their argument.

3. The judgment in Rizwan Ahmed case highlighted the contravention of orders made under Section 9A and the applicability of Section 37(1)(b) of the NDPS Act, which restricts bail for certain offenses. The judgment emphasized that bail limitations under Section 37 override those in the Cr.P.C.

4. Sections 2(viid), 9A, 25A, and 37(1) of the NDPS Act were crucial in determining the legal framework for controlling and regulating controlled substances, punishment for contravention of orders, and the non-bailable nature of certain offenses under the Act.

5. The court analyzed the applicability of Section 37 in relation to controlled substances and noted that the Customs Department admitted that Section 37 was not applicable to the present case, as per their reply before the Special Judge.

6. The court found the judgment in Rizwan Ahmed case to be per incuriam as it contradicted the explicit language of Section 37 of the NDPS Act. The court emphasized the need for adherence to statutory provisions.

7. The nature of the seized substances was questioned during the proceedings, with the petitioner later claiming that they were psychotropic substances, not controlled. The court allowed the petitioner to amend the petition for clarity, emphasizing the importance of factual accuracy in legal proceedings.

This detailed analysis provides a comprehensive overview of the legal judgment, addressing each issue involved in the case before the Delhi High Court.