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TMI Blog2012 (5) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the Orders dated 28.3.2012 in CR.MA.No.493/12 passed by Addl.Session Judge, A'bad and order dt.20/4/12 in CR.MA 1206/12 passed by Addl.Session Judge, Ahmedabad. c) This Hon'ble Court be pleased to expedite the hearing of this Application in the interest of justice; d) Since the Petitioner is in custody, the verification of this Application be dispensed with. e) Such other and further reliefs as this Hon'ble Court may deem fit and proper." 2. It is the case of the prosecution that the officers of Directorate of Revenue Intelligence (DRI), Ahmedabad, gathered information, that Shri Sujal Patel of M/s. Anshanu Exports and his employee Shri Babubhai Manibhai Sharma @ Bakabhai are suspected to be involved in illegal exports/smuggling of Narcotic drugs and/or psychotropic substances by courier mode through Air Cargo Complex, Ahmedabad. The information gathered further indicated that some consignment of Narcotic drugs and/or psychotropic substances are scheduled to be sent to USA/UK by courier mode through Air Cargo Complex, Ahmedabad, on 03.12.2011. Based on the above, the officers of DRI, Ahmedabad examined the goods presented for export to U.K. and U.S. by M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hylaminopropan-1-one were placed under seizure by the Central Excise officers of Sangli under a reasonable belief that the said item declared as 1-(4-methylphenyl)-2-methylaminopropan-1- one may be covered under narcotic drugs and psychotropic substances. The officers of Central Excise, Sangli drew representative samples under panchnama and placed the said goods under seizure. 2.2 The samples drawn from the 37 packets were forwarded for analysis to the Directorate of Forensic Science, Gandhinagar (DFS) and the DFS vide their test report letter DFS/NARCFOTICS/11/NC/82 dated 7.12.2011 has reported that the samples were primafacie suspected to be 'METHAMPHETAMINE HYDROCHLORIDE' and later on vide test report letter DFS/EE/2011/NC/82 dated 20.12.2011 and test report letter DFS/EE/2011/NC/84 dated 15.02.2012 confirmed that the samples drawn from the 37 packets tested positive for 'METHAMPHETAMINE HYDROCHLORIDE'. The DFS also confirmed that 'METHAMPHETAMINE HYDROCHLORIDE' was covered under the NDPS Act, 1985. The total value of the 37 kgs of seized material comes to ₹ 37 Crores in the illicit international market. The samples drawn by the officers of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 200.6 kgs of Ketamine Hydrochloride seized from a Tata Sumo vehicle at Andheri(East), Mumbai being illegally diverted for being exported by way of misdeclaration and concealment. During the course of search officers of DRI Mumbai had also recovered another consignment of about 826 kgs of Ketamine Hydrochloride contained in 32 drums from a farm house situated about 3 kms from the factory premises of M/s Kamud Drugs Pvt. Limited which was actually removed illegally from the factory premises of M/s Kamud Drugs Pvt. Limited and the said quantity was also placed under seizure by the officers of DRI, Mumbai. 2.5 Inquiries with the staff of M/s Kamud Drugs Pvt. Limited available at the factory premises during the course of Panchnama dated 04.12.2011 revealed that, consequent upon the above case, the FDI had cancelled licence No.SA-20B/1447 Dt.23.05.2008 and SA-21B/1418 Dt.23.05.2008 granted to M/s Kamud Drugs Pvt. Limited for manufacture of Ketamine and Ketamine Hydrochloride with effect from June-2011 and after the cancellation of the licence, M/s Kamud Drugs Pvt. Limited had shifted the stock of 81.650 kgs of Ketamine Hydrochloride to the dealers premises situated adjacent tot he ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seized material contained that 'Mephedrone Hydrochloride' as claimed by the petitioner and not 'Methamphetamine Hydrochloride' as per the report of DFS, Gandhinagar. 4. In the application, the petitioner had challenged free basis of method of the test of the seized substance carried out and contended that first 3 tests viz. MARKAVANCE, SIMON SE and MANDE LIME cannot be relied upon as molecules of both the drugs viz. 'Mephedrone Hydrochloride' and 'Methamphetamine Hydrochloride' which contain Nitrogen and under the given position of the molecules the result of the said tests cannot be relied upon. The petitioner relied on various chemical formulas, analytical chart and prayed that second samples of the alleged seized contraband be sent to National Laboratories viz. CFSL, Hyderabad and CRCL, New Delhi, so that involvement of the petitioner in a fake and frivolous case resulting into serious criminal offenses infringing liberty and freedom of the petitioner, subjecting the petitioner to rigour of trial can be awarded. 5. In support of his submissions as above, learned counsel appearing for the petitioner relied on necessity and fair and impartial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in this judgment in earlier paragraph and therefore, the submissions are not reproduced to avoid repetition. However, the basic contention of learned counsel for the petitioner about absence of Methamphetamine Hydrochloride in seized material and it contained only Mephedrone Hydrochloride remained substantial in support of his prayer. 10. It is, therefore, prayed that prayer in terms of para 8 in the petition be allowed in the interest of justice, since free and impartial investigation is a fundamental requirement of the Criminal Procedure Code and also Article 21 of The Constitution of India guarantees the life and liberty, which cannot be curtailed or taken away by the procedure undertaken by respondent No.2, which is not legal. 11. Shri. P.S. Champaneri, learned Assistant Solicitor General of India appearing on behalf of respondent No.2, heavily relied on detailed information received by the Directorate of Revenue Intelligence, Ahmedabad, (for short "DRI") about involvement of the petitioner and other persons connected with his business about illegal exports/smuggling of Narco Drugs and/or psychotropic substances through Air Cargo Complex, Ahmedabad. Upon detailed investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r deserves to be rejected in as much as, neither on facts, nor in law, any submission of learned counsel for the petitioner has any substance. 12. Learned counsel for the petitioner, however, placed reliance on some orders of the High Court of Madhya Pradesh Bench, Indore, in exercise Revisional Jurisdiction under Section 397 of Code and decision of the High Court of Kerala about applicability of The Drugs and Cosmetics Act, 1940 and submitted that accused can make a motion for second sample to be tested since what is paramount, is interest of justice and the accused has a right to establish that the item seized is not prohibited item under the Act. Another decision was of the High Court of Delhi, rendered on 03.01.2007, in the case of Nihal Khan and another Vs. The State (Govt of Nct of Delhi) while dealing with Criminal Revision Petition Nos.653 and 675/2006 [MANU/DE/7016/2007] and some order of Apex Court passed in a case having altogether different acts. 13. Upon consideration of rival submissions and perusal of the record of the case, at this crucial stage of investigation in seisin by Directorate of Revenue Intelligence, the prayer of the petitioner for sending second sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f The Drugs and Cosmetics Act, 1940 and Section 25 of the NDPS Act, 1985, are reproduced as under: "80. Application of the Drugs and Cosmetics Act, 1940 not barred.- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 to 1940) or the rules made thereunder." "25. Reports of Government Analysts.-(1) The Government Analyst to whom a sample of any drug [or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken [and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A] and shall retain the third copy for use in any prosecution in respect of the sample. (3) Any document purporting to be a report singed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken [or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above context, sub Section (4) of Section 25 provides that unless the sample has already been tested OR analyzed in the central drug laboratory, where, a person has under sub Section (3) notified his intention of adducing evidence in contravention of a Government analyst report, either the Court on its own motion or in its discretion at the request of either the complainant or accused cause the sample of the drug or cosmetic produced before the Magistrate under sub Section (4) of Section 23 can sent such sample for analysis. 18. In this case, the sample has already been tested by DFS, Gandhinagar and the investigation is yet not over and on the basis of suspicion or under the belief of applicability of one or other method, formula, or equation the petitioner would like to challenge the report of the expert analyst of a recognized Government Laboratory of a national repute simply deserves rejection and Section 25 of the Drug and Cosmetics Act, 1940 in the above context is not applicable in the facts and circumstances of the case and NDPS Act, a special Act enacted by the Parliament to make a law relating to Narcotic Drugs and to provide stringent provisions for the control and r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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