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TMI Blog2022 (2) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of the independent witness. On the basis of seizure, the instant case was registered. iv. Notice under Section 67 of the NDPS Act was served on the Petitioner and his statement was recorded. He was arrested on 23.08.2021. v. On 25.8.2021, during investigation, shops of the petitioner, bearing Shop No. 4 5 J- Block, Sarita Vihar, New Delhi were searched. Two people - Rajeev Yadav and Mukesh Kumar were requested to join the search proceedings as independent witnesses, which they agreed to join and proceeded towards the shops. It is stated that Mukesh Kumar backed out and did not join as independent witness. It is stated that the shop was closed and Ms. Sangeeta, wife of the petitioner was informed about the search of the shop. She stated that the keys of the shop were kept at her house. The team proceeded towards the house of the Petitioner at No.77, H Block Sarita Vihar to bring the keys to shop with the Petitioner and independent witness Rajiv Yadav. On reaching the shop, it is stated that 3-4 other bystanders were requested to join the search proceedings out of whom one Md. Shazada Alam assented to become an independent witness, and the shops got opened in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to prove any valid bill or purchase bill. Further, it was held that there were some transactions made by the Petitioner were not recorded in the bank account statements or reflected in his Income Tax Returns submitted to the respondent and there were properties purchased by him which could not be substantiated by his income, and that investigation was still ongoing. Therefore, application for bail of the Petitioner was rejected. 4. Mr. V.K. Shukla, Ld. Senior counsel, appearing for the Petitioner submitted that the Petitioner runs a sole proprietorship business in the name and style as M/s Ethical Enterprises and holds a valid drug license issued under Form No. 20 20B and 21 21B under the Drugs and Cosmetics Rules 1945 and is authorized to sell, stock, exhibit, offer for sale and distribute various medicines specified under schedule H H1 of Drugs and Cosmetics Rules. He submitted that the Petitioner apart from having the above licenses, has a valid Importer-Exporter Code in the name of M/s Ethical Enterprises which was issued on 05.02.2015 and had been renewed last on 26.06.2021, and has a GST number. He submitted that all the medicines bought by the Petitioner have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules 1945. 9. Per Contra, Mr. Subhash Bansal, Sr. Standing Counsel, NCB vehemently opposed the arguments of the Petitioner. He submitted that a consignment containing 50 strips of Tramadol tablets was booked by the Petitioner for exporting to Myanmar with a prescription of one Dr. Sanjiv Saxena of Indraprastha Apollo Hospital and pursuant to which, investigation was conducted at the shops of the Petitioner where 130gms of Tramadol and 50.5 grams of Clonazepam was recovered. He submitted that the Petitioner did not produce a single bill or invoice to justify his possession of these medicines and in absence of a valid bill the same would be viewed as a contravention of the NDPS Act. 10. He submitted that during investigation, Indraprastha Apollo Hospital was contacted to verify whether Dr. Sanjiv Saxena had issued the prescription/s found with the consignment which were being exported to Myanmar and it was discovered that no doctor by the name of Sanjiv Saxena was empaneled at the Hospital. He submitted that Dr. Sanjiv Saxena was served a notice to join investigation and he tendered a voluntary statement stating that he was not working at Apollo Hospital for the last 11 years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NCB at his premises recovered a total of 300 tablets of Tramadol weighing 130 grams and 375 tablets of Clonazepam weighing 50.5 grams and no bills were shown to the respondent. The search carried out by the NCB officilas was done before independent witnesses. 15. The argument of the Petitioner that Hira Singh v. Union of India (supra) stipulates that the different compositions of an illicit substance need to measured individually while evaluating whether the quantity is commercial or intermediate or small is unsustainable. A holistic reading of the judgment shows that while coming to conclusion about the quantity of an illicit substance, the substance would have to be weighed in toto including the weight of the neutral or mixed substance. In other words, a piecemeal calculation of the quantity of a substance would not be tenable and any interpretation otherwise would lead to an abuse of the legislative intention of the NDPS Act. 16. The Respondent has contended that the Petitioner gave a disclosure statement wherein he has allegedly admitted to the stance being canvassed by the NCB, pertaining to forging prescriptions and unlawfully transporting/exporting medicines into ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the NDPS Act is indeed uncalled for. 18. The Supreme Court in Collector of Customs V. Ahmadaleiva Nodira, (2004) 3 SCC 549, observed that the twin conditions for bail under NDPS Act are cumulative and not alternative and held as under: 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 accused-respondent 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 accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X
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