9911796707
TMI Blog2016 (8) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... t India Ltd., Mumbai. In the presence of Mohamed Syed Mustafa, the parcel was opened and it was found that 13 boxes of Zolfresh 10 x 10 x 10 Tablets serially numbered from 353 to 359 and 362 to 367 along with Invoice No.77573, dated 23.04.2016 of M/s.P.L.A. Kanagu Pharma, 10-C, Alexandria Road, Cantonment, Trichy, issued in the name of M/s.Athma Mind Centre, 10th Cross East (Dr.Ramakrishnan), Trichy ? 620 018. The said Mohamed Syed Mustafa admitted that he produced Order Form from M/s.Athma Mind Centre, Trichy, to obtain the said Tablets and sent the same to L.Abuthahir, the respondent herein. Mohamed Syed Mustafa confessed that he has been working as Medical Representative for the past six months and previously, one Sureshkumar, who was employed with M/s.Abbott India Limited, Mumbai, in Trichy, used to supply Zolfresh Tablets to Abu of Chennai. He used to procure the Tablets by placing orders in the name of M/s.Athma Mind Centre, Trichy, and supplied the same to Abu. The said Sureshkumar gave mobile number of Mohamed Syed Mustafa to Abu, who placed order for 13000 numbers of Zolfresh Tablets. The said Mohamed Syed Mustafa procured the Tablets from M/s.P.L.A. Kanagu Pharma, Trichy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the voluntary statement of the respondent and gravity of the offence, enlarged the respondent on bail, by order dated 05.08.2016. 5. The learned Judge enlarged the respondent on bail on the ground that the respondent is suffering from diabetes and he needs treatment and personal care by his wife. The learned Additional District and Sessions Judge has failed to consider that as per Section 37 of NDPS Act, it is the burden on the accused to prove that he is not guilty of the offence and that he would not commit an offence, if he is enlarged on bail. The Hon'ble Apex Court in a number of judgments has held that the accused persons must prove both the ingredients and then only, the Court can enlarge the petitioners on bail. 6. The learned Special Public Prosecutor also submitted that the Court on being satisfied that the accused is not guilty based on reasonable grounds, can enlarge the accused person on bail. The reasonable ground means something more than prima facie grounds. The learned Additional District and Sessions Judge has enlarged the respondent on bail arbitrarily without assigning any valid reason. The respondent will abscond and live in foreign country and invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent accused is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression ?reasonable grounds? means something more than prima facie grounds. It contemplates substantial probable causes for believing that the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 481, para 4) 4. The respondents were convicted under Section 29 read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (the NDPS Act) and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1000. On appeals being filed, the learned Judge suspended the sentence and the respondents were enlarged on bail on executing a personal bond for a sum of Rs. 50,000 with one surety for the like amount, to the satisfaction of the trial court. We have perused the order passed by the learned Judge and we find that there is not even a whisper about the condition contained in Section 37 of the NDPS Act with regard to enlarging of the accused on bail. Mr Jaspal Singh, learned Senior Counsel appearing for the respondents contended that the learned Public Prosecutor did not oppose the bail as contained in Section 37(1)(b)(ii) of the NDPS Act. According to him, unless the Public Prosecutor opposes the bail application, Section 37 will not apply. Mr.Singh seriously contended that inasmuch as the appellant have not put on record that the Public Prosecutor had opposed the granting of bail it must be presumed that this is an order covered under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evidence Act as also Article 20(3) of the Constitution of India. For the aforesaid purpose, the provisions of Section 67 of the NDPS Act are reproduced hereinbelow: 67. Power to call for information, etc.?Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act? (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.? 41. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le I of the Narcotic Drugs and Psychotropic Substances Rules, 1985 in terms of the Notification dated 21-2-2003 and were also recognised by the Control Substances Act, a law applicable in the United States, as having low potential for misuse and it was possible to obtain these drugs either on written or oral prescription of a doctor, the supply of these drugs did not fall within the mischief of Section 24. He has further argued that in the circumstance, the companies were mere network service providers and they were protected under Section 79 of the Information Technology Act from any prosecution. 8. Mr.Vikas Singh, the learned Additional Solicitor General for the respondents has however pointed out that the aforesaid drugs figured in the Schedule appended to the Act pertaining to the list of psychotropic substances (at Sl. Nos. 70 and 93) and as such it was clear that the two drugs were psychotropic substances and therefore subject to the Act. It has also been pointed out that the appellant had been charged for offences under Sections 24 and 29 of the Act which visualised that a person could be guilty without personally handling a psychotropic substance and the evidence so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... care by his wife. It is well settled that bail already granted cannot be cancelled in a mechanical manner. The Court must consider the supervening circumstances and only for valid reasons, the bail can be cancelled. The grounds for granting bail and the grounds for cancelling bail are not similar. The total weight of the contraband is not a criteria to decide whether the contraband in question is commercial quantity or not when the contraband is a mixture with other substances. The quantum of Narcotic mentioned in schedule alone taken into consideration as to whether the contraband in question is small, intermediate or commercial quantity. Only by a Purity Test, it can be decided. The alleged psychotropic substance in the Tablets in question is less than commercial quantity and further, it is not psychotropic substance and therefore, NDPS Act is not applicable and only Drugs and Cosmetics Act is applicable. Further, once bail is granted even without considering Section 37 of NDPS Act, Court considering a petition for cancellation of bail, cannot consider the ingredients of Section 37 for cancellation of bail. The learned Additional District and Sessions Judge has considered all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with dispatch and the role of the Magistrate is to oversee the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under sub-section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under the corresponding provisions of Section 437 or Section 439 and on the grounds germane to such cancellation. May it be stated here that power of release on bail under the Act either by the Magistrate or a Special Court is same as that visualised by Section 167, Cr.P.C., as would appear from Clauses (b) and (c) of Sub-section (1) of Section 36-A of the Act. No doubt, Section 37 of the Act starts with a non obstante clause : ("Notwithstanding anything contained in the Code of Criminal Procedure, 1973"); what has been stated in Clause (b)(ii) of Section 37 of the Act would be applicable, according to us, when the question of release on bail is being considered. But, once an accused has been released even without satisfying the requirements in question, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which bail can be otherwise cancelled, the important grounds relating to which have been mentioned in paragraph 11 of Aslam Babalal's case, the same beings: (i) where the accused misuses his liberty by indulging in similar criminal activity; (ii) interferes with the course of investigation; (iii) attempts to tamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases under the NDPS Act found that the substance found in possession of the accused was an opium derivative which has been defined under Section 2(xvi), and under Section 2(xvi)(e) a preparation, containing more than 0.2% of morphine or diacetylmorphine, is an opium derivative; and that since this contraband article contained 1.4% and 1.6% heroin it is an opium derivative, and punishable under Section 21 of the NDPS Act. Since the manufactured drug being carried weighed 4.07 kg., it would come under Section 21(c) being a commercial quantity, but since the accused is only a carrier and is not the beneficiary of the transaction, he would not be awarded the maximum sentence and would be awarded the minimum sentence of 10 years rigorous imprisonment and a fine of rupees one lakh, in default of payment of fine rigorous imprisonment for one more year. 13. Very recently, in Harjit Singh vs. State of Punjab reported in 2011 (4) SCC 441, the Hon'ble Supreme Court had an occasion to consider the Judgment in E.Micheal Raj's, case. That was a case, where the accused was allegedly found in possession of 7.10 kilograms of opium. Two samples of 10 grams [each] of opium were taken. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus, the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry No.92 becomes totally redundant. 22. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of Section 2(xva) of the NDPS Act.? 12. I have carefully considered the rival submissions advanced by the learned counsel appearing for the parties. 13. The allegation against the respondent is that he has purchased the schedule drug and paid the amount for the same by depositing in the account of A1 in ICICI Bank. From the Lorry Receipt [LR], it is clear that the Consignor is A1 and the Consignee is the respondent. The mobile numbers of both parties were mentioned in the Lorry Receipt. The respondent in his statement under Section 67 of the Act before the Officials admitted that as per the instructions of one Jamaludeen of Ramanathapuram, who is now in Dubai, had procured on earlier occasion, the same schedule drug from Sureshkumar, the then medical representative of Abbott India Ltd. Similarly, in the instant case also, there is a prima facie case that A1 procured 13000 Zolfresh Tablets, which is a schedule drug and transported to the respondent as per his instructions. The respondent or A1 did not have any licence to possess or transport the said Tablets. The learned Additional District and Sessions Judge failed to consider that the total contraband in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The learned Additional District and Sessions Judge has not considered these aspects and enlarged the respondent on bail on the sole ground that he is suffering from diabetes and he needs treatment and personal care by his wife. The Hon'ble Apex Court in a number of judgments, especially in the judgments reported in 2012 (12) SCC 180 [Kanwar Singh Meena Vs. State of Rajasthan and another] and 2015 Cri. L.J. 4862 [Neeru Yadav Vs. State of Uttar Pradesh and another] has held that the order enlarging the accused person on bail or granting anticipatory bail without considering the serious allegation made against the accused person and without considering as to whether any prima facie case has been made out and quantum of punishment that may be imposed, then the said order is illegal. 16. The ratio in the above judgments and the judgments relied on by the learned Special Public Prosecutor appearing for the petitioner is squarely applicable to the facts of the present case. Hence, the order of the learned Additional District and Sessions Judge enlarging the respondent on bail, is illegal and non-est in law. Therefore, this criminal original petition is liable to be allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
