2024 (5) TMI 924 - HC - Indian Laws

Seeking grant of bail - smuggling of Tramadol - requirement for authorization as envisaged by Rule 58 of the NDPS Act, 1985 for the export - whether First Wealth could have exported the drug in question i.e. Tramadol? The court considered the roles of Gudipati (A1), Ahmed Saleh Hasan alias Aldosky (A4), and Ravindra Kavthankar (A5) in the alleged conspiracy to export Tramadol disguised as calcium carbonate. Whether the export of Tramadol required authorization u/r 58 of the NDPS Rules, 1985? - HELD THAT - It is a well recognized principle of statutory interpretation that the Parliament uses the words for a definite purpose - On a plain construction of Section 8(c) of the NDPS Act, 1985 export of a psychotropic substance sans licence, permit or authorization under the governing rules or orders is expressly prohibited. The proviso to Rule 53 cannot be so construed as to dilute the rigor of the prohibition contained in main part of Rule 53 to the extent that no authorization as such is required if a narcotic drug or psychotropic substance is exported for medical purposes. Such a construction would run counter to the object of prohibiting import into and export out of the India of narcotic drugs and psychotropic substances sans regulation - Sub-rule (1) of Rule 58 also emphasis the mandatory character of the said Rule. The necessity of export authorization is underscored not only by using the word, shall but also by employing the legislative command in a negative form by using the word. No at the beginning of sub-rule (1). Thus, the export of Tramadol required authorization u/r 58 of the NDPS Rules, 1985. R ole and complicity of Gudipati (A1) in the alleged conspiracy - HELD THAT - The submissions on behalf of Gudipati (A1) and Ahmed Saleh (A4) that there was no requirement of export authorization as envisaged by Section 8(c) read with Rule 58 of the NDPS Rule, 1985, cannot be acceded. This inference, effectively seals the fate of the application for bail of Gudipati (A1). Since there is overwhelming material to point the complicity of Gudipati (A1), the interdict contained in Section 37 of the NDPS Act, 1985 operates with full force and vigor. Role and complicity of Ahmed Saleh Hasan alias Aldosky (A4) in the alleged conspiracy - HELD THAT - Prima facie there is sufficient material to demonstrate that Ahmed Saleh (A4) was a confederate in conspiracy to export the psychotropic substance. There is no substantial probable cause to believe that Ahmed Saleh (A4) may not be guilty of the offences for which he has been arraigned. Rigor of Section 37 of the NDPS Act, 1985 stands attracted. Role and complicity of Ravindra Kavthankar (A5) in the alleged conspiracy - HELD THAT - Wether Ravindra (A5) was privy to the alleged offences prima faice appears debatable. Having regard to the limited role of a courier manager of a Freight Forwarder Company, and the material which is pressed into service against Ravindra (A5), the rigor contained in Section 37 of the NDPS Act, 1985 may not be attracted qua Ravindra (A5). The Court is not informed that the applicant Ravindra (A5) has antecedents - the application of Ravindra (A5) is allowed. Applications disposed off.

Summary

Issues Involved:
1. Legality of the export of Tramadol without authorization.
2. Role and complicity of each applicant in the alleged conspiracy.
3. Applicability of Section 37 of the NDPS Act, 1985 in granting bail.

Summary:

Issue 1: Legality of the export of Tramadol without authorization

The applicants, arraigned in NDPS Special Case No.1506 of 2023, sought bail for offences punishable u/s 22(c), 23(c), 27A, 28, 29, and 30 of the NDPS Act, 1985. The consignment intercepted by the Central Intelligence Unit was found to contain Tramadol, a psychotropic substance, misdeclared as calcium carbonate. The prosecution argued that the export of Tramadol without authorization violated Rule 58 of the NDPS Rules, 1985. The court held that the export of psychotropic substances sans authorization is expressly prohibited u/s 8(c) read with Rule 58 of the NDPS Rules, 1985. The proviso to Rule 53 does not dilute this requirement.

Issue 2: Role and complicity of each applicant in the alleged conspiracy

(a) Gudipati (A1), the COO of First Wealth Solution, was found to have forged documents to misdeclare Tramadol as calcium carbonate. He was involved in hawala transactions related to the drug.

(b) Ahmed Saleh Hasan alias Aldosky (A4) introduced foreign clients to Gudipati (A1) for the supply of Tramadol and received commissions. The court noted substantial evidence, including WhatsApp chats and cash seizures, indicating his active role in the conspiracy.

(c) Ravindra Kavthankar (A5), the Courier Manager, forwarded the modified export documents without questioning the change in product description. However, the court found insufficient evidence to establish his mens rea, noting that statements u/s 67 of the NDPS Act, 1985, could not be used as confessions following the Supreme Court's ruling in Tofan Singh vs. State of Tamil Nadu.

Issue 3: Applicability of Section 37 of the NDPS Act, 1985 in granting bail

The court found overwhelming material against Gudipati (A1) and Ahmed Saleh (A4), thus the interdict contained in Section 37 of the NDPS Act, 1985, operated with full force, leading to the rejection of their bail applications. For Ravindra (A5), the court concluded that the rigor of Section 37 may not be attracted due to his limited role and lack of substantial evidence of complicity, thus granting him bail.

Order:

(i) BA/4210/2023 filed by Gudipati Subramaniam (A1) and BA/4160/2023 filed by Ahmed Saleh Hasan alias Aldosky (A4) stand rejected.

(ii) BA/223/2024 filed by Ravindra Rajaram Kavthankar stands allowed.

(iii) Ravindra Rajaram Kavthankar, the applicant in BA/223/2024, be released on bail on furnishing a P.R. Bond in the sum of Rs.1,00,000/- with one or two sureties in the like amount to the satisfaction of the learned Special Judge.

(iv) The applicant shall mark his presence at the Central Intelligence Unit, between 10.00 am. to 12.00 noon, on the first Monday of every alternate month, for three years or till the conclusion of the trial, whichever is earlier.

(v) The applicant shall not tamper with the prosecution evidence.

(vi) The applicant shall furnish his contact number and residential address to the investigating officer and keep him updated in case of any changes.

(vii) The applicant shall not leave India without prior permission of the learned Special Judge.

(viii) The applicant shall regularly attend the proceedings before the jurisdictional Court.

(ix) Observations made are confined to the determination of entitlement for bail and should not influence the trial Court.