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TMI Blog2021 (2) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Therefore, under the facts and circumstances of this case, this Court feels that this is a fit case whether the applicant is entitled to bail because there is a possibility that he may not be convicted under the provisions as charged by the respondent no.2 after recording evidence of eye witnesses. This Court is satisfied having regard to the material available on record and there are sufficient grounds that if the applicant may not be convicted - Further, the applicant has no antecedent and trail would take long time. He is not likely to run away from the justice if he is released on bail, as he is a Director of different companies situated at Songadh District Tapi. If the probabilities are there, the applicant may not be convicted, court can grant bail subject to further conditions being satisfied that the applicant is not likely to commit any offence while on bail - After filing of the the chargesheet during the pendency of this application, no further evidence is placed on record involving the present applicant in the offence, and therefore, this court feels that some stringent conditions will have to be imposed upon the applicant by accepting the prayer. The present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant herein. That applicant has been made to testify against himself. The same is prohibited in law. That the prosecution agency has placed a highly improbable story as the company has already exported 44.79 Lakhs tablets and that has gone unnoticed by the said agency and carved out a probable story that production has been carried out by the company of 60 Lakhs tablets, out of which, 44.79 lakhs tablets were already exported. That the prosecution agency has first carried out a search at Hazira Port and thereafter to shift the burden, M/s. Ardor Drugs Pvt. Ltd and is used as a scapegoat. That retraction letters for all statements under Section 67 of the NDPS Act have been sent since all the statements were recorded under duress and without free will. The statements were already drafted and the accused were forcefully made to sign the story in order to corroborate the story of the Investigating Authorities. Moreover, the applicant has not made any confession/admission of the alleged offence before the DRI officers. That applicant has denied giving the statements placed forward by the Respondent Agency/DRI vide a retraction correspondence. That the evidence adduced by the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further submitted that during the process of the panchnama at factory premises of M/s. Ardor Drugs Private Ltd on 07.07.2020 in presence of the present applicant and Shri Mehul Manubhai Desai and independent panch, it was observed that there was shortage of 1376.443 kgs of Tramadol Hydrochloride, 174.978 kgs of Ephedrine Hydrochloride and 137.175 kgs of Pseudoephedrine Hydrochloride. It is further submitted that present applicant and co-accused Mehul Desai informed that they have manufactured 60 lakhs Tablets of Tramadol Hydrochloride 225 mg from the said 1376.443 kgs. of Tramadol Hydrochloride raw material and out of these 60 Lakhs tablets, 15 Lakhs tablets of Tramadol Hydrochloride 225 mg were lying at CFS-Seabird Marines Services Pvt. Ltd., Hazira, Surat for exporting the same and remaining 44.79 Lakhs tablets have already been exported clandestinely. It is further submitted that container was admitted to be exported and under the panchnama dated 06.07.2020 and 07.07.2020, total 15,20,400/- Tramadol Hydrochloride Tables Tablet of 225 mg from the container were recovered and placed under the seizure under the provisions of NDPS Act. It is further submitted that statement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so a director of M/s. Ardor Drugs Pvt. Ltd without valid permission. While referring Section 37 of NDPS Act, learned Additional Solicitor General of India has argued that it is necessary for the Court to examine the question of grant of bail where Section 37 of the NDPS Act applies. That Court should satisfy having regard to the material available on record before passing any order. It is further submitted that provisions of Code of Criminal Procedure would not be applicable where different procedures having been prescribed under the NDPS Act. Since the Act prescribes, separate provisions for bail, general provisions of bail under the Cr.P.C. will not be applicable in the facts and circumstances of the case. Referring 67 of the Act, he has submitted that statement of the applicant is admissible in evidence as it was made voluntarily with his consent. There was no any fear, inducement or coercion. It is further submitted that there is nothing on record to come to the conclusion that the confessional statement of the applicant was outcome of any threat, duress, coercion or under influence caused to the accused by any Narcotics Control Bureau Officer. There is sufficient materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed by the aforesaid two Directors of the company that out of 60 Lakhs tablets, 15.21 lakhs tablets are lying at CFS Seabird Marine Services Pvt. Ltd., Hazira Port for export vide Bills Nos.3594018 and 3614975 dated 03.07.2020 and 04.07.2020 respectively and remaining 44.79 Lakh tablets have already been exported illicitly. That, during the search on 06.07.2020 and 07.07.2020 aforesaid 15.21 Lakh tablets were seized from two different containers and same were recovered. Thereafter in the statements of co-accused and one of the co-accused Mr. Sukhdev Patel has informed the Investigating Agency that he prepares formulations including that of Ephedrine Hydrochloride IP and Pseudoephedrine Hydrochloride and that he was instrumental in formulation of Tramadol Hydrochloride in formulation of Tramadol Hydrochloride 225 Mg tablets. That, Mr. Mehulbhai Manubhai Desai has also informed by his statement that he is a Director of the company and is looking after the work related to manufacturing, accounting and billing of the company and is aware about the illicit manufacturing and export of Tramadol Hydrochloride 225 mg. Tablets and has also accepted his offence. That, the Investigating agenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only 101000 tablets of Tramadol Hydrochloride 225 mg with name Tramadol Hydrochloride Tablets BP- SUPER 225 . However, without the requisite permission, they had manufactured Tramadol tablets/capsules in excess of the permissible limits i.e. 101000 tablets of Tramadol Hydrochloride 225 mg and the excess of manufactured 101000 tablets of Tramadol Hydrochloride 225 mg were exported illegally. From the statement on oath made by the officer of the respondent No.2, it appears that, Commissioner of Food and Drugs Control Administration was inquired by the prosecution and letter thereof was issued on 17.08.2020 informing that M/s. Ardor Drugs Pvt. Ltd had a permission to manufacture only 1 Lakh tablet of Tramadol Hydrochloride 225 mg with name of Tramadol Hydrochloride BP Super 225 . It appears from the letter that Tramadol Hydrochloride were manufactured in excess of permissible limit and exported illegally. The same thing was stated by the office of the respondent no.2 in his affidavit in para 5 and 7: V. The applicant joined M/s. Ardor Drugs Pvt. Ltd. In the month of November, 2019, however the permission bearing No. G/25/1623 for manufacturing and export of Tramadol 225 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit any offence while on bail. The language of Section 37 is clear that the Section is not a complete bar to the grant of bail to an accused of offence under the NDPS Act. This section stipulates mandatory conditions to be satisfied that the person-accused under the NDPS Act is entitled to be released on bail. The first condition is that the prosecution must be given an opportunity to oppose the application and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and finally that the accused is not likely to be committed any offence while on bail. Here it is the case of the applicant that the statement of the applicant was recorded without free will and he was forced to sign on already prepared statement. The statement was recorded under duress and without consent. That, it is reflected from the letter for retraction of statement is also produced by him at Annexure-D to this petition and such a confessional statement can be disregarded if it is shown that the same was caused by the inducement, threat or promise etc by the person in authority as enumerated under Section 24 of the Evidence Act. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. He placed on record call data reports showing that around the time when the co-accused was arrested, the appellant was in touch with a person named Chaudhary from Dubai. The learned Additional Solicitor General however fairly accepted that apart from the statements of the co- accused there was nothing to link the appellant with said convicted accused. The call data reports also did not indicate that around the time when co- accused were apprehended, the appellant was in touch with either of them. 7. For the present purposes, we will proceed on the footing that the statements of co-accused were recorded under and in terms of Section 67 of the NDPS Act. As regards such statements, a bench of two Judges of this Court after referring to and relying upon the earlier Judgments, observed in Kanhaiyalal v. Union of India1, as under: 45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case2 with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a police officer within the meaning of Section 25 of the Evidence Act, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code. As the issue of considering the statement under Section 67 of the NDPS Act can be constrained as a confessional statement and same was referred to larger bench, thereafter, on the premise that such statement under Section 67 of the NDPS Act was recorded, Hon'ble Apex Court has proceeded further observing that it may amount to confession, but certain additional features must be established before such a confessional statement could be relied upon against a co-accused. Referring another judgment of the Hon'ble Apex court, it was held that it cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court, therefore, appellant was entitled to be acquired of the charges levelled against him. In another case of Sujit Tiwari versus State of Gujarat and Another reported in 2020(1) Crimes 141(SC), while deciding bail application under the NDPS Act, Hon'ble Supreme Court has observed the provisions of Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bilities are there, the applicant may not be convicted, court can grant bail subject to further conditions being satisfied that the applicant is not likely to commit any offence while on bail. After filing of the the chargesheet during the pendency of this application, no further evidence is placed on record involving the present applicant in the offence, and therefore, this court feels that some stringent conditions will have to be imposed upon the applicant by accepting the prayer. Hence, the present application is allowed and the applicant namely Harshal Prafulbhai Desai is ordered to be released on regular bail in connection with complaint being DRI F No. DRI/AZU/SRU/A/NDPS-01/2020 registered on 09.07.2020 with the department of Revenue Intelligence, Surat upon furnishing bail bond of sum of ₹ 5,00,000/- (Rupees Five lacs only) with two sureties of the like amount to the satisfaction of the Special Judge, NDPS Court at Surat and subject to the conditions that the applicant shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the Special Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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