2022 (2) TMI 889 - HC - Indian Laws

Smuggling - recovery of 750 tablets of Tramadol weighing 350 grams from a parcel given by the petitioner - retraction of statements - Section 37 NDPS Act - HELD THAT - The argument of the Petitioner that the Petitioner has a valid Importer- Exporter Code and a GST registration number and further did not require any other licenses or permissions for sending a package of medicines to Myanmar does not impress this Court. There are force in the argument of the counsel for the respondent that the Petitioner would need a valid authorisation under Rule 58 of NDPS Rules 1985 and the license which was being used for selling medicines from his shop would not suffice as it authorises the sale and distribution of medicines domestically and locally - As per Notification S.O. 1760 (E.) dated 26.04.2018 issued by the Revenue Department amended S.O. 1055 (E) dated 19.10.2001 by inserting Tramadol as Entry 110Y to the Schedule of Psychotropic substances under the NDPS Act and specifies its commercial quantity to be 250gms. This makes it amply clear that the Petitioner ought to have had a valid authorization as per Rule 58 before exporting Tramadol. 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 - Even though there are prescriptions, it cannot be substantiate the presence of tablets at the shop of the petitioner. Further, in any event, the prescription amount does not match with the total number of tablets that have been recovered from the shop of the petitioner. This Court is not making any observations on this aspect lest it will prejudice the case of the petitioner. However, these facts are shows only to come to the conclusion that there are reasonable grounds to believe that the petitioner has committed an offence punishable under Sections 8, 22(c) and 23 NDPS Act and thereby the rigour of Section 37 of the NDPS Act will apply in the present case. This Court is not inclined to grant bail to the Petitioner at this juncture - Petition dismissed.

Issues Involved:
1. Legality of the Petitioner's possession and export of Tramadol and Clonazepam.
2. Validity of the Petitioner's licenses and authorizations.
3. Compliance with the NDPS Act and Rules.
4. Admissibility of the Petitioner's statements and evidence.
5. Applicability of the Supreme Court's judgment in Hira Singh v. Union of India.
6. Satisfaction of conditions under Section 37 of the NDPS Act for granting bail.

Detailed Analysis:

1. Legality of the Petitioner's Possession and Export of Tramadol and Clonazepam:
The petitioner was found with a package containing 750 tablets of Tramadol weighing 350 grams intended for dispatch to Myanmar. Additionally, searches at his premises recovered 300 tablets of Tramadol weighing 130 grams and 375 tablets of Clonazepam weighing 50.5 grams. No bills were provided to justify possession, and the search was conducted in the presence of independent witnesses.

2. Validity of the Petitioner's Licenses and Authorizations:
The petitioner argued he held valid licenses under the Drugs and Cosmetics Rules, 1945, and an Importer-Exporter Code, asserting these were sufficient for his activities. However, the court found that these licenses did not authorize the export of medicines. The petitioner lacked the specific authorization required under Rule 58 of the NDPS Rules, 1985, for exporting psychotropic substances like Tramadol.

3. Compliance with the NDPS Act and Rules:
The court noted that Tramadol is listed as a psychotropic substance under the NDPS Act, with a commercial quantity specified as 250 grams. The petitioner was found with quantities exceeding this limit, necessitating compliance with the NDPS Act. The court found that the petitioner did not meet the necessary legal requirements for exporting these substances, thus violating Sections 8(c), 22(c), and 23 of the NDPS Act.

4. Admissibility of the Petitioner's Statements and Evidence:
The petitioner claimed his statements were made under duress and retracted them, presenting bills and prescriptions as evidence. However, the court emphasized that determining the truth of these claims is a matter for trial. The court's role at this stage was limited to assessing whether the petitioner should be granted bail.

5. Applicability of the Supreme Court's Judgment in Hira Singh v. Union of India:
The petitioner argued that the quantity of Tramadol should be calculated excluding the weight of neutral substances, citing Hira Singh v. Union of India. The court rejected this argument, clarifying that the judgment requires considering the total weight, including neutral substances, to determine whether the quantity is commercial.

6. Satisfaction of Conditions under Section 37 of the NDPS Act for Granting Bail:
The court referred to established principles for granting bail under Section 37 of the NDPS Act, emphasizing the need for "reasonable grounds" to believe the accused is not guilty and is unlikely to commit an offense while on bail. The court found that the petitioner did not meet these conditions, noting the substantial evidence against him, including the recovery of a commercial quantity of Tramadol and the lack of proper authorization for export.

Conclusion:
The court concluded that there were reasonable grounds to believe the petitioner had committed offenses under the NDPS Act, and the stringent conditions for granting bail under Section 37 were not satisfied. Consequently, the petition for bail was dismissed. The observations made were solely for the purpose of deciding the bail application and not on the merits of the case.

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