9911796707
TMI Blog2024 (5) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... s is expressly prohibited. The proviso to Rule 53 cannot be so construed as to dilute the rigor of the prohibition contained in main part of Rule 53 to the extent that no authorization as such is required if a narcotic drug or psychotropic substance is exported for medical purposes. Such a construction would run counter to the object of prohibiting import into and export out of the India of narcotic drugs and psychotropic substances sans regulation - Sub-rule (1) of Rule 58 also emphasis the mandatory character of the said Rule. The necessity of export authorization is underscored not only by using the word, shall but also by employing the legislative command in a negative form by using the word. No at the beginning of sub-rule (1). Thus, the export of Tramadol required authorization u/r 58 of the NDPS Rules, 1985. R ole and complicity of Gudipati (A1) in the alleged conspiracy - HELD THAT:- The submissions on behalf of Gudipati (A1) and Ahmed Saleh (A4) that there was no requirement of export authorization as envisaged by Section 8(c) read with Rule 58 of the NDPS Rule, 1985, cannot be acceded. This inference, effectively seals the fate of the application for bail of Gudipati (A1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss weight 729 kg. and net weight 720 kg., was intercepted by the Central Intelligence Unit (CIU) Air Cargo Complex, Sahar, (ACC) and kept on hold, on 25th February, 2023, for 100% examination by the officers of CIU, ACC, Mumbai. 3. A search panchnama was drawn on 27th February, 2023 by the officers of CIU in the presence of the panch witnesses. The description on each boxes as well as on the inside packages was calcium carbonate 225 mg. Quantity found was 9,99,500 tablets of Tamol-X. The goods were thus found to be misdeclared in terms of quantity and description. Thus the consignment was seized under seizure memo. Samples were drawn and sent for analysis to CRCL Lab. The test was positive for Tramadol, a psychotropic substance. 4. In the backdrop of the aforesaid broad prosecution case, post investigation, the applicants came to be arrested. The role attributed to each of the applicants as borne out by the prosecution complaint and the material on record, can be summarised as under : (a) Gudipati (A1) was the Chief Operating Officer of M/s. First Wealth Solution (First Wealth), the consignor. Gudipati (A1) had placed the purchase order with M/s. Safe Formulation Pvt. Ltd. to proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tched to export the psychotropic substance. (e) Ravindra Kavthankar (A5), the prosecution alleges, was in constant touch with Gudipati (A1). The change in the description of the product proposed to be exported was such that Ravindra Kavthankar (A5) must have questioned the same in his capacity as the freight forwarder. The WhatsApp chat between Gudipati (A1) and Ravindra (A5) and the fact that Ravindra (A5) had got extra commission for each consignment from Gudipati (A1) indicates that Ravindra (A5) was privy to the alleged conspiracy. The prosecution thus alleges Ravindra (A5) has also actively conspired with the other co-accused and was instrumental in transportation of Tramadol for illegal export thereof and thereby committed the offences punishable under Sections 22(c), 23(c), 28 and 29 of the NDPS Act, 1985. 5. In the backdrop of the aforesaid nature of the accusation qua each of the applicants, I have heard Mr. Taraq Sayed, the learned Counsel for the applicants Gudipati Subramaniam (A1) and Ahmed Saleh Hasan alias Aldosky (A4), in BA/4210/2023 and BA/4160/2023; respectively, Mr. Sujay Kantawala, the learned Counsel for the applicant Ravindra Kavthankar (A5), in BA/223/2024, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oxes which were received from Gudipati (A1) to CHA. Ravindra (A5) was totally unaware of the contends of the product to be exported. In fact, Gudipati (A1) categorically states that the Ravindra (A5) was unaware of the fact that the consignment contained Tramadol. 10. Mr. Kantawala would further urge that the fact that at times some amount came to be credited to the account of Ravindra (A5), instead of the Galaxy, by itself, is not sufficient to establish the nexus between Ravindra (A5) and the alleged offences. Therefore, Ravindra (A5), who has been in custody for one year and three months, deserves to be enlarged on bail. 11. As against this, Mr. Munde, the learned Special PP for respondent No.1, submitted that a huge quantity of 4,224 kg. of psychotropic substance was recovered. There is overwhelming material to indicate that the applicant had entered into a conspiracy to export Tramadol disguised as calcium carbonate. Thus to salvage the position, a submission is sought to be canvassed on behalf of Gudipati (A1) that export authorization was not warranted. 12. Mr. Munde would urge the provisions of Rule 58 of the NDPS Rules, 1985 are explicitly clear. The submission that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: 16. Dealing with any narcotic drug or psychotropic substance in any manner is prohibited except for medical and scientific purposes and in the manner and to the extent provided by the provisions of the Act, the rules or order made thereunder. The Parliament has taken care to clarify that if there is a requirement of licence, permit or authorization for use of any narcotic drug or psychotropic substance for medical or scientific purpose then such use shall be in accordance with the terms and conditions of such licence, permit or authorization. 17. On first principles, the use of the terms licence , permit or authorization;, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, import, export, purchase and consumption of narcotic drugs and psychotropic substances for medical, scientific, and training purposes. Therefore, the proviso to Rule 53 cannot be so construed as to dilute the rigor of the prohibition contained in main part of Rule 53 to the extent that no authorization as such is required if a narcotic drug or psychotropic substance is exported for medical purposes. Such a construction would run counter to the object of prohibiting import into and export out of the India of narcotic drugs and psychotropic substances sans regulation. 22. Sub-rule (1) of Rule 58 also emphasis the mandatory character of the said Rule. The necessity of export authorization is underscored not only by using the word, shall but also by employing the legislative command in a negative form by using the word. No at the beginning of sub-rule (1). 23. Negative words are ordinarily construed as prohibitory and used as a legislative device to make a statute imperative. A useful reference in this context can be made to a decision of Supreme Court in the case of Rangku Dutta alias Ranjan Kumar Dutta vs. State of Assam (2011) 6 Supreme Court Cases 358 , wherein while construing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirements of the section imperative. That conclusion of ours must necessarily follow from the wellknown rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law, 6th edn., p. 263 in his own terse language: If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and i n no other manner , it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding. Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting s. 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise. (emphasis supplied) 25. I am therefore not inclined to accede to the submissions on behalf of Gudipati (A1) and Ahmed Saleh (A4) that there was no requirement of export authorization as envisage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odus operndi adopted by Gudipati (A1) to export the Tramadol disguised as some other pharmaceutical product. 30. I have carefully perused the material on record qua Ravindra (A5). As noted above, initial export invoice was changed by Gudipati (A1) disguising the product to be exported as calcium carbonate. All these shipping documents were forwarded by Gudipati (A1) to Ravindra (A5). That constitutes the bulk of the data exchanged by and between Gudipati (A1) and Ravindra (A5). 31. In this context, it is imperative to note, in paragraphs 213.3 (page 384) of the prosecution complaint with reference to the change in the description of the product in the export invoice, the complainant alleges, accused Shri Ravindra R. Kavthankar, without questioning the modification of description in above said invoice, forwarded the same to the CHA firm M/s. Jafferali Laljee Son for further filing of Shipping Bill 7996704 dated 23.02.2023. 32. The complainant thus alleges Ravindra (A5) ought to have questioned the change in the description of the product to be exported. The allegation cannot be said to be unfounded. However, the pivotal question that may warrant adjudication is, was there an element ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a courier manager of a Freight Forwarder Company, and the material which is pressed into service against Ravindra (A5), in my considered view, the rigor contained in Section 37 of the NDPS Act, 1985 may not be attracted qua Ravindra (A5). The Court is not informed that the applicant Ravindra (A5) has antecedents. I am, therefore, persuaded to allow the application of Ravindra (A5). 37. Hence, the following order: ORDER (i) BA/4210/2023 filed by Gudipati Subramaniam, (A1) and BA/4160/2023 filed by Ahmed Saleh Hasan alias Aldosky (A4),stand rejected. (ii) BA/223/2024 filed by Ravindra Rajaram Kavthankar stands allowed. (iii) Ravindra Rajaram Kavthankar, the applicant in BA/223/2024, be released on bail in NDPS Special Remand No.1506 of 2023, arising out of CR No.CIU/INV- 23/2022-23/ACC(G), registered with Central Intelligence Unit, on furnishing a P.R. Bond in the sum of Rs.1,00,000/- with one or two sureties in the like amount to the satisfaction of the learned Special Judge. (iv) The applicant shall mark his presence at the Central Intelligence Unit, between 10.00 am. to 12.00 noon, on first Monday of every alternate month, for the period of three years or till conclusion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
