2017 (5) TMI 225 - HC - Customs

Export of contraband item - the case of the petitioner is that, his employee, Srinivas Anjaneya has indulged in attempting to export the alleged contraband by using the IE code of the partnership firm of which the petitioner was a partner; and that the petitioner had no knowledge with regard to the contraband - scope of petition - Held 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 - petitioner deserves to be enlarged on bail with stringent conditions - petition allowed - decided partly in favor of petitioner.

Summary

Issues:
Enlargement of petitioner on bail under Section 439 of Cr.P.C. in a case involving offences under NDPS Act and Customs Act.

Analysis:
1. Compliance with Section 42 of the NDPS Act:
- The petitioner argued non-compliance with Section 42 by the prosecution, citing lack of recorded information in writing. Authorities like State of Punjab v. Balbir Singh and others were relied upon. The court noted the mandatory nature of Section 42 and found non-compliance, as the documents annexed to the complaint did not satisfy this provision.

2. Analysis of Drug Samples:
- The petitioner contended that quantitative analysis of drug samples was not conducted within the required time frame, referencing Standing Instruction No.1/88. The court acknowledged the necessity of compliance with this instruction, as established in Union of India v. Bal Mukund and others. The report indicated presence of Pseudoephedrine Hydrochloride but lacked quantitative analysis.

3. Nature of Contraband:
- The respondent argued that Pseudoephedrine is a psychotropic substance used in illicit activities. The court considered this substance's classification under the NDPS Act and its illicit use in manufacturing Methamphetamine, a controlled substance. The contraband in question was identified as Ephedrine, a psychotropic substance.

4. Vicarious Liability and Knowledge of Petitioner:
- The respondent contended that the petitioner, as a partner in the firm, could not escape vicarious liability for the actions of the employee accused No.2. The court reviewed the petitioner's knowledge and involvement, noting that accused No.2's statements revealed interactions with a supplier, indicating awareness of illicit activities.

5. Bail Decision:
- After considering the arguments and evidence, the court granted bail to the petitioner under Section 439 Cr.P.C. The court imposed stringent conditions, including a self-bond, surrendering passport, attending court hearings, refraining from criminal activities, and non-involvement with witnesses. Violation of these conditions could lead to bail cancellation.

Overall, the judgment addressed the legal aspects of compliance with procedural requirements, nature of contraband, vicarious liability, and the decision to grant bail based on the circumstances of the case and the evidence presented during the proceedings.