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TMI Blog2023 (11) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... axena v. DRI'. It was observed as under : "2.0 Learned Counsel for the applicant submits that this application was filed in 2016. The law in the interregnum has undergone change. Therefore applicant be allowed to withdraw this application. In view of the above, the applicant's request is allowed. 3.0 The application is dismissed as withdrawn." 3. The facts of the present case, as stated in the complaint filed on behalf of the Directorate of Revenue Intelligence ('DRI'), i.e., the respondent herein are as under : (i) On 19-8-2015, specific information was received indicating that Dhirendra Prakash Saxena, i.e., the present applicant and the proprietor of M/s. Weishorn Biotech located at 102, Malhotra Complex, A-212, Street No. 1, Shakarpur, Delhi-92 and Manoj Kumar Nayak, the proprietor of M/s. Lakshya Traders located at SCO-31, A-215, Chawla Complex, Street No. 1, Shakarpur, Delhi-92 are engaged in illicit possession, transportation, warehousing, sale and purchase of psychotropic and controlled substances which were being clandestinely manufactured and removed from the factory premises of M/s. G.T. Biopharma Private Limited loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI searched the factory premises of M/s. G.T. Biopharma owned by Sanjay Bhartia, from where 3 drums of 'Ketamine Hydrochloride IP' weighing 75.370 kg. were recovered in addition to 40 packets of 'alprazolam' weighing 500 grams each. Further, an HDPE bag containing 6000 thousands of 'Bioset' was also recovered. (vi) Intelligence further indicated that M/s. Dhari Chemicals owned by Yogesh Shah, located at G/2, Laxmi Apartment, Kadam Nagar road, Nizampura, Baroda owned by Yogesh Shah was also involved in diversion of controlled substances in association with M/s. Daffohils Laboratories Private Limited located at F-109-110, UPSIDC, Industrial Area, Selaqui, Dehradun. Upon a search of the premises of M/s. Dhari Chemicals, 40 drums of 25 kg. each of Pseudoephedrine and 7 drums of 25 kg. each of Ephedrine were recovered. (vii) On 19-8-2015, the premises of M/s. Daffohils Laboratories Private Limited was also searched and 25 kg. of Pseudoephedrine was recovered. (viii) On 20-8-2015, a consignment suspected to be that of Pseudoephedrine sent from M/s. Daffohils Laboratories Pvt. Ltd. to M/s. Weishorn Biotech was intercepted by a team of DRI at New Delhi. Total 100 kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) passed by Coordinate Benches of this Court. It was further submitted that co-accused Inder Pal Singh Chawla was granted bail by the Learned Special Judge, NDPS, South District, Saket vide order dated 19-5-2016, passed in Sessions Case No. 06A/2015. It was further submitted that the present applicant was granted interim bail vide order dated 4-9-2018, passed by coordinate bench of this Court in BAIL APPLN. 2004/2016 and the same was extended from time to time. During interim bail, the applicant did not misuse his liberty. 8. It was submitted that the applicant has been in judicial custody since 21-8-2015. The trial is likely to take a long time. It was submitted that the applicant has been released on interim bail by this Court as well as the Learned Trial Court on a few occasions and he surrendered in time upon expiry of the said interim bail. It was submitted that the applicant is suffering from a heart disease, haemorrhoids and glaucoma for which he was treated at Fortis Hospital and Yatharth Hospital during his interim bail. 9. In support of his contentions, Learned Counsel appearing on behalf of the applicant placed reliance on the following judgments : (i)&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akesh Kumar Bhola made multiple cash deposits and payments were also made to M/s. G.T. Biopharma. It was submitted that even though M/s. Lakshya Traders was owned by Manoj Kumar Nayak, the actual control of the business was with the applicant. Learned Sr. SC submitted that a scrutiny of the bank statements of M/s. Weishorn Biotech revealed multiple cash/RTGS deposits, most of which was transferred to the account of M/s. Daffohils Laboratories Pvt. Ltd. 14. It was submitted that the fact that the applicant handed over the keys to the premises of M/s. Lakshya Traders is not the only piece of evidence that links him with the said business concern. It was submitted that the documents related to the business of M/s. Lakshya Traders including the GR and invoice issued by M/s. G.T. Biopharma Pvt. Ltd. were recovered from the business premises of M/s. Weishorn Biotech owned by the applicant. Co-accused Manoj Kumar Nayak, the proprietor of M/s. Lakhsya Traders was also apprehended from the premises of M/s. Weishorn Biotech. 15. It was submitted that the applicant was consciously involved with fraudulent diversion of 3648 kg. of Pseudoephedrine hydrochloride out of which 350 kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control Bureau v. Mohit Aggarwal, 2022 Crl.LJ 3422. (iv) Union of India v. Md. Jamal, Order dated 6-5-2022 in Criminal Appeal No. 752 of 2022. (v) Union of India v. Rattan Mallik alias Habul, (2009) 2 SCC 624. (vi) Satpal Singh v. The State of Punjab, Judgment dated 27-3-2018 in Criminal Appeal No. 463 of 2018 [2018 (360) E.L.T. 791 (S.C.)]. (vii) N.R. Mon v. Md. Nasimuddin, 2008 [3] JCC [Narcotics] 170. (viii) Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798. (ix) Union of India v. Gurcharan Singh, (2003) 11 SCC 764. (x) Union of India v. Abdulla - (2004) 13 SCC 504. (xi) Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 (xii) Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) & Anr., (2021) 6 SCC 230. (xiii) State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr., Judgment dated 10-1-2022 in Special Leave to Appeal (Crl.) 242 of 2022. 19. Heard Learned Counsel for the parties and perused the record. 20. The recoveries in the present case, as highlighted in the reply dated 27-1-2023 filed on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dara (a) Recovery and detention of 1000 kg. Pseudoephedrine Hydrochloride and 175 kg., Ephedrine both controlled substances under the NDPS Act, 1985 at the godown premises of M/s. Dhari Chemicals, G/2, Laxmi Apartment, Kadam Nagar, Nizampura, Vododara of which Shri Yogesh Shah, accused No. 5, is the proprietor, which were intended for dispatch to M/s. G.T. Biopharma Pvt. Ltd., Kala Amb and M/s. Daffohils Laboratories Pvt. Ltd., Dehradun under panchnama dated 19-8-2015. The detained 1000 kg. Pseudoephedrine Hydrochloride and 175 kg. Ephedrine have been released to M/s. Dhari Chemicals, Vadodara vide DRI's letter dated 29-10-2015. (b) Rs. 35 lakh being sale proceeds of illegal trade in controlled substances from the residential premises of Yogesh Shah, accused no. 5 proprietor of M/s. Dhari Chemicals, Vadodara." (Emphasis supplied) 21. It has been further alleged in the complaint that M/s. Lakshya Traders had procured Ketazee-500 injections containing Ketamine Hydrochloride from M/s. G.T. Biopharma Pvt. Ltd. and that these injections were further sold to certain chemists, who in their statements denied receiving any such inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rigours of Section 37 under the NDPS Act with respect to the present applicant. 24. On the other hand, Learned Counsel appearing on behalf of the applicant submitted that in absence of any recovery with respect of the aforesaid injections, the prosecution does not have a leg to stand on with respect to the aforesaid allegation. 25. It is pertinent to note that even if it is assumed for the sake of argument that the present applicant was the de facto owner of M/s. Lakshya Traders, even then, the seizure of certain documents showing receipt and further supply of aforesaid injections containing Ketamine Hydrochloride, sans any recovery, cannot be a foundation for launching prosecution against the present applicant with respect to the aforesaid psychotropic substance. The burden of proving that certain substances fall under the category of 'narcotics drug' or 'psychotropic substance' is upon the prosecution, which is discharged by chemical analysis of the representative samples taken from the alleged recovery. 26. In the absence of such chemical analysis, one cannot presume, on the basis of certain invoices, that the substance mentioned therein is an alleged c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication before this Court. The trial is likely to take a long time. 29. Section 25A of the NDPS Act provides as under : "25. Punishment for allowing premises, etc., to be used for commission of an offence. - If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees : Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees." The aforesaid section provides for punishment for violation of Section 9A of the NDPS Act, which relates to the 'power to control and regulate controlled substance'. It is pertinent to note that maximum punishment, without any minimum, provided for in Section 25A of the NDPS Act is imprisonment for a term which may extend to 10 years with fine which may extend to Rs. 1,00,000/-. 30. As per the nominal roll dated 4-2-2023 received from Superintendent of Prison, Central Jail No. 8/9, Tihar, New Delhi, the applicant has been in custody for 3 years, 6 months and 2 days. 31. It is pertinent to note that the present ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of 1600 liters of Acctic Anhydride, in Rajiv Kumar @ Sukha (supra) recovery was of 25 kgs. powder ephedrine hydrochloride, in Faiyaz Ahmed Rasool Shaikh (supra) and another recovery was of 290 kgs. of pseudoephedrine, in Chakrapani Dutt (supra) recovery was of 100 liters of Acctic Anhydride, and in all these cases since the accused had remained in custody for certain period, they were released on bail...." In N.C. Chellathambi v. N.C.B., a Coordinate Bench of this Court, vide order dated 20-4-2005, granted bail to the applicant in a case of recovery of Ephedrine - a controlled substance. It was observed as under : "1. The Learned Counsel for the petitioner submitted that no recovery was made from the present petitioner. In any event, the substance that is involved in the present case is ephedrine, which is neither a drug nor a psychotropic substance. Undoubtedly, though, it is a controlled substance within the meaning of Section 9A of the NDPS Act and the offence that is alleged against the petitioner is under section 25A of the NDPS Act. The case for the prosecution is that 1 ton of ephedrine was exported to Manila by the concern known as 'M/s Gray Fox Inc.' That conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is directed to be released on bail upon his furnishing personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the trial court. The petitioner shall not leave the country without prior permission of the trial court. He shall surrender his passport, if any, before the trial court. During the pendency of the appeal, the petitioner shall not contact or try to influence any of the witness, and shall not indulge in any similar activity. He shall not cause any delay in the progress of the trial." Similarly, in Tinimo Efere Wowo v. State Govt. of NCT of Delhi, 2022 SCC OnLine Del 46, a Coordinate Bench of this Court, in a case involving recovery of Pseudoephedrine granted bail to the applicant and observed as under : "9. The offences alleged against the petitioner are U/s. 9A/25A of the NDPS Act. First and foremost question is whether rigours U/s. 37 of the NDPS Act applies to the case of the petitioner or not. 10. The present petitioner is facing prosecution for charges U/s. 9A and 25A of the NDPS Act and hence obviously his case would not be covered U/s. 37 of the NDPS Act. Moreover, as far as Section 9A which deals with contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent applicant are covered under Section 25A of the NDPS Act. 33. In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, to the satisfaction of the Learned Trial Court/Link Court, further subject to the following conditions : (i) The memo of parties shows that the applicant resides at B-101, Hindon Apartment, Vasundhra Enclave, Delhi. In case of any change of address, the applicant is directed to inform the same to the Investigating Officer and the concerned Learned Trial Court. (ii) The applicant shall report at the office of the DRI twice in a week, i.e., on every Tuesday and Friday at 10:30 AM and the concerned officer is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities. (iii) The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. (iv) He shall drop a pin on the Google map to ensure that his location is available to the Investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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