IN THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU. CCH.33.

PRESENT:

SMT. B.S. JAYASHREE, LL.M.,

XXXIII ACC & SJ & SPL.JUDGE (NDPS),

BENGALURU.

DATED: THIS THE 23^rd DAY OF NOVEMBER 2023

Crl. Misc.No.9743/2023

Petitioners :

(accused No.1 & 2)

Respondent :

1. Shekappa, S/o.Sri Chandrappa, 35 years, R/at.1­7­78, Nagavi Road, EK­Kaman, Jaffar Gung, Chitapur, Gulbarga 585 211.

Presently residing at The Tree by Provident, Syndicate Bank layout, Andharahalli Main road, Bangalore 560 091.

• Rajesh R, S/o.H Ramachandra Reddy, 51 years, Doctor by Profession R/at.No.12, I Main road, UAS layout, Bhoopasandra, Bangalore 560 094.

(By Sri SS., Adv).

V/S.

State by DRI., Bangalore.

(By Spl. Public Prosecutor)

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O R D E R

This the second bail present petition U/Sec.439 of Cr.P.C., filed by the petitioners to enlarge them on bail, in DRI/BZU/S­IV/ENQ­08/(INT­NIL)/2023 (Spl.C.C.2150/2023) for the offences punishable U/Sec.8(c), 22, 23, 29 & 29 of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:­

That the petitioners are innocent and law abiding citizens. They have not committed any offence much less the offence as alleged. They have been falsely implicated by the respondent in this case. Basing on a credible information the prohibited goods under the NDPS Act were being exported through Fedex Express transportation and supplies private limited were intercepted by the IO., DRI. When the consignments were opened it was found to contain ALPZ­1 mg., 80 tablets which is a psychotropic substance and were seized on 4.4.2023. Further when the search is conducted in the premises of M/s.Rashe Life Science Private Limited at Magadi road, Bangalore, 8900 Alpz 1 tablets and Tramadol 600

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tablets were seized, a detail mahazar has been drawn. It is contended that the petitioner No.1 is the owner of the said Rashe Life Science Private Limited, he has got licence to export the medicines. Further it is contended that the petitioner No.2 is a doctor he is not aware of the activities of the private limited company of first petitioner, he is only a sleeping partner. He used to see 150 patients daily from morning 9.00 am., to evening 10.00 pm., and he had no time to look after the activities of Rashe Pharma. Further the wife of the first petitioner is a dentist she is running a clinic. Each and every tablet sold in the Rashe Pharma has been invoiced and billed. The products which are said to be seized by DRI is having purchase bill. First petitioner is married having children and second petitioner is also married and having children. Both the petitioners have to take care of their family. The alleged offence is non bailable, but is neither punishable with imprisonment for life or death sentence. Now, the investigation is concluded and charge sheet is filed. Further custodial detention is not warranted. The respondent investigating agency have concocted the documents and falsely implicated

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the petitioners in the case. Search is not conducted in the presence of gazetted officer. The tablets were seized, but not the drugs in the case. The petitioner No.1 has not violated the rules and regulations of drugs and cosmetics act in whatsoever. He is having valid licence to carry on the business. He is distributing medicines to various medicine shops. The petitioner No.1 was selling the drugs as per the requirements of the customers and he was maintaining receipts, bills and invoices. There was intention on the part of petitioner to export the drugs. The petitioner No.2 is a doctor he is no ay concerned to the day today activities of the aforesaid company he is engaged in seeing the patients who used to come to his clinic and providing medicines as per the health issues of the patients and he is not aware of any activities of the company. The respondent without conducting proper investigation has falsely implanted petitioner No.2 in the case. They are from respectable families having no criminal antecedents. The petitioners are ready and willing to abide by any conditions imposed by this court in the event of

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grant of bail. They are ready to offer surety for their due appearance before this court. Hence, sought to grant bail.

• The prosecution while opposing the bail petition contended that based on a credible intelligence that some restricted prohibited goods are being exported, the officers of DRI Bengaluru has intercepted export consignment at FedEx Express Transportation and Supply Chain Pvt., Ltd., at International Airport Bangalore. On open examination of the consignments vide Air way bill No.771734687979, 771734716020, 771734737430 & 771734939200 it was found to contain Alprazolam 800 + 8900 tablets weighing 1739 grams, Tramadol 600 tablets weighing 307 grams, Nitrazepam 250 tablets weighing 45 grams and Diazepam 500 tablets weighing 2192 grams. The commodity “Alprazolam Tablets­ ALPZ­1”, contains Active Pharmaceutical Ingredient “Alprazolam” and falls under the category of ‘Psychotropic Substances’ in Sl. No.30 of the Schedule to the NDPS Act. Notification S.0.1055 (E).­ dated 19th October 2001 lists Alprazolam at Serial Number 178 and indicates 5 gm and 100 gm of the substance to be ‘small’ and commercial’ quantities

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respectively. The commodity “Tramadol HCL and Paracetamol­ Neurotom, contains Active Pharmaceutical Ingredient “Tramadol HCL” and falls under the category of ‘Psychotropic Substances’ in Sl. No. 110Y of the Schedule to the NDPS Act. Notification S.0.1762(E). dated 18th April 2018 lists Tramadol at Serial Number 238 ZH and indicates 5 gm and 250 gms of the substance to be ‘small’ and commercial’ quantities respectively. The commodity “Nitrozep­10 (Nitrazepam), contains Active Pharmaceutical Ingredient “Nitrazepam” and falls under the category of ‘Psychotropic Substances’ in Sl. No.64 of the Schedule to the NDPS Act. Notification S.0.1055(E). dated 19th October 2001 lists Nitrazepam at Serial Number 221 and indicates 20 gm and 500 gms of the substance to be ‘small’ and commercial’ quantities respectively. The commodity ‘Elipam 10 (Diazepam) contains Active Pharmaceutical Ingredient “Diazepam” and falls under the category of ‘Psychotropic Substances’ in Sl. No. 64 of the Schedule to the NDPS Act. Notification S.0.1055 (E). dated 19th October 2001 lists Diazepam at Serial Number 194 and

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indicates 20 gm and 500 gms of the substance to be ‘small’ and commercial’ quantities respectively.

During search of the premises of M/s.Rashe Life Sciences Private Ltd., No.11/2, I Floor, I Cross, Byraveshwaranagar, Magadi main road, Bangalore on 5.4.2023 the officers came across certain documents evincing export of Alprazolam. The said invoices/export bills are issued in the name of M/s.Rashe Pharma. On being enquired about import and export code and necessary authorization from Narcotic Commissioner, petitioner No.1 replied in negative. When the stock of Rashe Pharma is checked the stock details of the tablets particularly Alprazolam and Tramadol furnished. The prohibited contraband which is found in the premises of Rashe Pharma are 8900 tablets of Alprazolam 600 tablets of Tramadol. The weight of the Alprazolam is 1595 grams and the weight of Tramadol is 307 grams. Nitrozepam weighing 45 grams and Diazepam weighing 101 grams is seized. Voluntary statements of petitioner Nos.1 and 2 has been recorded. Both the accused were arrested produced before the court and remanded to

Judicial     Custody.              The   investigation      is   concluded     and

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complaint is filed before the court. The seized contraband comes under the purview of commercial quantity under the NDPS Act. Negation of bail is the rule and its grant is an exception under sub­clause (ii) of clause (b) of Sec.37(1). There are primafacie materials available against the petitioners attracting the offences alleged in the prosecution papers. The petitioners have not made any grounds to entertain the bail petition. In the event of their release they may abscond and may tamper with the prosecution evidence and hinder the progress of the investigation and may again connive and resort to do the same illegal business which may not only affect adversely health of public especially youngsters. With these main pleas sought to reject the petition.

• Heard learned counsel for the petitioners and the prosecution.

• The points that arise for my consideration are as here

under:

1. 1. Whether petitioners have made out sufficient grounds to enlarge them on bail?

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• What order?

• My findings on the above points are as under:

Point No.1: In the Negative

Point No.2: As per the final order for the following:

REASONS

• POINT NO.1:­ The IO., DRI., has put the criminal lawinto motion. The gist of the allegation reads as here under:­

• Based on a credible intelligence that some restricted prohibited goods are being exported. The officers of DRI Bengaluru has intercepted export consignment at FedEx Express Transportation and Supply Chain Pvt., Ltd., at International Airport Bangalore. On open examination of the consignments vide Air way bill No.771734687979, 771734716020, 771734737430 & 771734939200 it was found to contain Alprazolam 800 + 8900 tablets weighing 1739 grams, Tramadol 600 tablets weighing 307 grams, Nitrazepam 250 tablets weighing 45 grams and Diazepam 500 tablets weighing 2192 grams. The commodity “Alprazolam Tablets­

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ALPZ­1″, contains Active Pharmaceutical Ingredient “Alprazolam” and falls under the category of ‘Psychotropic Substances’ in Sl. No.30 of the Schedule to the NDPS Act. Notification S.0.1055 (E).­ dated 19th October 2001 lists Alprazolam at Serial Number 178 and indicates 5 gm and 100 gm of the substance to be ‘small’ and commercial’ quantities respectively. The commodity “Tramadol HCL and Paracetamol­ Neurotom, contains Active Pharmaceutical Ingredient “Tramadol HCL” and falls under the category of ‘Psychotropic Substances’ in Sl. No. 110Y of the Schedule to the NDPS Act. Notification S.0.1762(E). dated 18th April 2018 lists Tramadol at Serial Number 238 ZH and indicates 5 gm and 250 gms of the substance to be ‘small’ and commercial’ quantities respectively. The commodity “Nitrozep­10 (Nitrazepam), contains Active Pharmaceutical Ingredient “Nitrazepam” and falls under the category of ‘Psychotropic Substances’ in Sl. No.64 of the Schedule to the NDPS Act. Notification S.0.1055(E). dated 19th October 2001 lists Nitrazepam at Serial Number 221 and indicates 20 gm and 500 gms of the substance to be ‘small’ and commercial’ quantities

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respectively. The commodity ‘Elipam 10 (Diazepam) contains Active Pharmaceutical Ingredient “Diazepam” and falls under the category of ‘Psychotropic Substances’ in Sl. No. 64 of the Schedule to the NDPS Act. Notification S.0.1055 (E). dated 19th October 2001 lists Diazepam at Serial Number 194 and indicates 20 gm and 500 gms of the substance to be ‘small’ and commercial’ quantities respectively.

7(b) During search of the premises of M/s.Rashe Life Sciences Private Ltd., No.11/2, I Floor, I Cross, Byraveshwaranagar, Magadi main road, Bangalore on 5.4.2023 the officers came across certain documents evincing export of Alprazolam. The said invoices/export bills are issued in the name of M/s.Rashe Pharma. On being enquired about import and export code and necessary authorization from Narcotic Commissioner, petitioner No.1 replied in negative. When the stock of Rashe Pharma is checked the stock details of the tablets particularly Alprazolam and Tramadol furnished. The details of other medicines were also furnished, but I will extract only the prohibited contrabands which is found in the premises of Rashe Pharma. 8900 tablets of Alprazolam 600

12

tablets of Tramadol were found. The weight of the Alprazolam is 1595 grams and the weight of Tramadol is 307 grams. Nitrozepam weighing 45 grams and Diazepam weighing 101 grams is seized. A detail mahazar is drawn. Summons was issued to accused No.1. His voluntary statement recorded on 5.4.2023 he has stated that he is exporting Alprazolam, Azeethromycin, Nitrazepam, Diazepam, Tramadol, Amoxicillin, Ivermectin, Pegrabalin and erectile Dysfunctions tablets to USA UK and Australia. He is aware of the shipments which

were seized through consignment airway bills Nos.771734687979, 771734716020, 771734737430 & 771734939200. He has also stated that he has exported various psychotropic substances through various consignments. About the prescriptions he has stated that Dr.Rajesh who is his partner and is a doctor has issued the prescriptions. After accused No.2 signed on the letter he has generated an invoice for Alprazolam and other medications. In the airway bill No.771734737430 that is proposed to be exported to Mr.Vitalis Marcenka who is customer from London. The consignment was ordered for 500 tablets through India

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Mark and supposed to reach London on 6.4.2023. he had made a prescription letter and asked A2 who is his partner who is also a doctor has signed on it. A1 has met A2 in the year 2016 he has discussed with him about the plans of taking distribution of Indian Immunological Companies Vaccines. Then they applied for Drug Licence, started the business of Rashe Pharma in the year 2018 and Rashe Life Sciences Pvt., Ltd., in the year 2019. A2 is a partner in the said firm. In the year 2020 they have registered their firm with India Mart. They have got orders from USA, UK and Australia during Covid and till date they are getting orders.

7(c) After recording the statement, A1 was arrested thereafter, summons was issued to accused No.2. His statement recorded. A2 has stated about the prescriptions issued by him in the case. He used to sign knowingly for further procedure and accepting the same. He has further stated that he had gone through all the details mentioned in the prescription before signing it. He was aware of the number of doses, number of days. The strength of the medicine was not mentioned, he had never contacted any of the people

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mentioned in the prescription. A1 had told him that he had contacted those people through India Mart and they are asking for various medications. For customs clearance A1 asked him to sign the prescriptions. He has accepted that he is one of the directors of both the companies. Considering the gravity of the offences, both the accused were arrested, produced before the court and remanded to Judicial Custody. In the remand application it is stated that the accused were prosecuted for the offences U/Sec.8(c), 22, 23, 28 and 29 of NDPS Act. A detail mahazar is drawn and a case is registered in DRI/BZU/S­IV/ENQ­08 (INT­NIL)/2023 for the offences punishable U/Sec.8(c), 22, 23, 29 & 29 of N.D.P.S. Act. Now, the investigation is concluded and complaint is filed before the court.

• The learned counsel for the petitioners argued that petitioners are innocent. They have not committed any offence. They are falsely implanted by the investigating agency. The investigating agency has not complied the provisions of Sec.42 and 50 of NDPS Act with regard to the seizure of contraband. It

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is argued further that as per Sec.67­A of NDPS rules, a narcotic drug and psychotropic substance may be used for scientific requirements etc…. The petitioner No.1 maintained

the records from 2022. They have also obtained export authorisation. Drugs prescribed does not fall within schedule – 1 of the NDPS Rules. As per rule 67(A)(c) narcotic drugs may be supplied on furnishing prescriptions. Medical officer is not debarred from issuing prescription for drugs which are stated in Scheudle­H of drugs and cosmetics rules 1945. from the possession of accused No.2 nothing has been seized. Further active ingredient of drug to be taken not the total weight of the drug.

It is argued further that the petitioners herein are supplying the medicines as per the requirement of the customers. They are authorised to do the sale of seized contraband. The respondent investigating agency have concocted the documents and falsely implicated the petitioners in the case. Search is not conducted in the presence of gazetted officer. The tablets were seized, but not the drugs in the case. The petitioner No.1 has not violated the rules and

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regulations of Drugs and Cosmetics Act in whatsoever. He is having valid licence to carry on the business. He is distributing medicines to various medicine shops. The petitioner No.1 was selling the drugs as per the requirements of the customers and he was maintaining receipts, bills and invoices. There was intention on the part of petitioner to export the drugs. The petitioner No.2 is a doctor he is no way concerned to the day today activities of the aforesaid company he is engaged in seeing the patients who used to come to his clinic and providing medicines as per the health issues of the patients and he is not aware of any activities of the company. The respondent without conducting proper investigation has falsely implanted petitioner No.2 in the case. They are from respectable families having no criminal antecedents. Now, the investigation is concluded and charge sheet is filed. Further custodial detention is not warranted.

• The prosecution vehemently argues that the exception carved out in rule 67­A (c) of NDPS rules is to be read in the light of its legislative intention. It was the intention of

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legislature to allow foreign travelers in India to be able and procure and use for their self consumption narcotic substances and psychotropic substances under a medical prescription and dispensed by the registered pharmacy. The contention advanced by the accused that any supply including exports to a foreigner would fall under the exception carved out under 67A(c) NDPS rules would travel beyond the intention of the legislature. Such a reading would lead to an absurdity in as much as any medical doctor could write a prescription to a foreign national residing outside India. The exception given in rule 67(A)(c) cannot be given such a wide interpretation to include exports to foreigners. It is further argued that even within India Prescription issued by medical practitioners for psychotic substances are only dispensed by the Pharmacies to the patients over the counter and such medications cannot be produced through e­pharmacy. In the instant case the customers of accused persons got in contact with them through an enquiry to purchase drugs in response to the advertisement placed in an on line trading portal called India Mart. The fact that the accused persons have advertised for

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sale of the subject drug is apparent from Rashe wed page on the India Mart website. The customers have approached with an intention of purchasing the controlled psychotropic substances and not approached the doctor for consultation, followed by an assessment based on which subscription has been issued. The prescription does not contain the details of the illness of the patient and what actually is the treatment required, the medical history. The prescription does not mention the manner in which the medicine is to be administered and dosage per dose is also not mentioned. All the prescriptions have similar wordings which seems to suggest that they are template and no real consultation and diagnosis. The said drugs cannot be prescribed as first line of treatment before conducting a thorough checkup. The prescriptions mentions that the medicine are for long term use without any end date, whereas medications that are suspectable that are abuse are either given for a short term until next review by the doctor.

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1. I have carefully gone through the rival contentions. In the instant case, contraband seized is Alprazolam 800 + 8900 tablets weighing 1739 grams, Tramadol 600 tablets weighing 307 grams, Nitrazepam 250 tablets weighing 45 grams and Diazepam 500 tablets weighing 2192 grams which are commercial quantity. The petitioner No.1 is the owner of Rashe Life Science Private Limited. petitioner No.2 is the partner of Rashe Life Science Private Limited and Rashe Pharma. The documents produced by the petitioners during the course of argument indicates that petitioner No.1 is the owner of Rashe Life Science Private Limited and petitioner No.2 is the partner of Rashe Life Science Private Limited. The respondent investigating agency has seized huge quantum of prohibited contraband from the consignments which is supposed to be exported to foreign country under Airway bills Nos.771734687979, 771734716020, 771734737430 & 771734939200. Further when the search of premises of M/s. Rashe Life Science Private Ltd., is conducted there also huge quantum of prohibited narcotics seized. Alprazolam, Tramadol seized is 1595 grams, 307 grams. The petitioners herein were

20

issued with summons and their statement came to be recorded. In their statement petitioner No.1 has stated that he is the owner of Rashe Life Science Private Limited. he is aware that Alprazolam falls under the category of psychotropic substances. He has furnished the details of export of Alprazolam and Tramadol HCL tablets. Petitioner No.1 has stated that his firm is registered with India Mart. He has exported Alprazolam tablets to multiple customers outside India from 2022 till date. Further Rashe Pharma and Rashe Alprazolam does not have any licence for export of NDPS substance. They have not obtained any licence from Narcotics commissioner, Central Bureau of Narcotics or any other authorities. Alprazolam falls under the category of psychotropic substance which is within the knowledge of petitioners. The petitioner No.2 is the partner of Rashe Pharma he is monitoring the work of Rashe Pharma. He has issued the prescription of drugs which are seized under the consignments. If the said prescriptions are scrutinized there is no details of the medical history, diagnosed report. The prescriptions are vague and it is stated in the prescriptions

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that patient is suffering from general weakness and anxiety. All the prescriptions have similar wordings. The dosage of medicines is also not stated in the said prescriptions. It appears that the said prescriptions are prepared only to export the seized contraband in the case. Further, the detail address of the patient is also not there in the prescriptions. The petitioners have not obtained any licence from Central narcotics Central Bureau to export the narcotic drug and psychotropic substance for medical requirement. The contention raised by the petitioner that they are authorised to export the contraband seized in the case as per the exception covered under Rule 67(A)(c) of NDPS Rules is unsustainable. As in the instant case there is no licence obtained by the petitioners to export the narcotic drug and psychotropic substance from the Central Narcotic Control Bureau. That apart as provided under Rule 67­A(c) a narcotic drug or psychotropic substances may be supplied to a foreigner pursuant to a medical prescription only from the authorized licenced Pharmacists or other retail distributors designated by authorities responsible for public health.

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1. Here in the instant case the petitioner No.1 has obtained licence only for the purpose of import and export of medicines and the said licence is obtained from Directorate General of foreign Trade. As provided under NDPS rules the petitioner had not obtained any licence to export narcotic drug or psychotropic substance for a medical requirement of a foreigner. It is pertinent to note that the patient which is referred in the said prescriptions is not referred by any authorised hospital or any other establishment of government. There is no record reporting the medical history and details of the patient who require the medicines which is seized in the case. Thus, the contention raised by the petitioners that they are authorised to export the drugs seized in the case is unsustainable.

1. Yet another contention of petitioners is active ingredient has to be taken into consideration and the total weight of the tablet while ascertaining the weight of the seized contraband is also unsustainable in view of the judgment of Hon’ble High Court reported in (2020) SCC online SC 382 in

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the case of Hira Singh Vs., Union of India, at para 10(3) discussed that illicit drugs are seldom sold in pure form. They are almost always adulterated or cut with other substances. For example, caffeine mixed with Heroin causes that Heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, could have enough powder to amend reversal doses of drugs. Take the example of Heroin. It is known as a powerful and illegal street drug and opiate derived from morphine. This drug can easily be “cut” with a variety of different substances. This means that drug dealers will add other drugs or non­ intoxicating substances to the drug so they can sell more of it at a lesser expense to themselves. Brown sugar/smack is usually made available in powder form. The substance is only about 20% heroin. The Heroin is mixed with other substances like chalk powder and zinc oxide; brown sugar is cheaper but more dangerous because of these impurities in the drug. These are only a few examples demonstrating that even a mixture of narcotic or psychotropic substances is more dangerous. The Hon’ble Supreme Court noted that, therefore, what is harmful

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or    injurious      is    the    entire     mixture/tablets        with     neutral

substances and Narcotic Drugs or Psychotropic Substances.

Therefore, going only by the weight of the pure drug or psychotropic substance would frustrate the intention and purpose of enacting the NDPS Act. There may be fewpunishments for “commercial quantity”. Indeed, that would not have been the intention of the Legislature.

12(a). The Hon’ble Supreme Court noted that even considering the definition of “manufacture”, “manufactured drug”, and the “preparation” conjointly, the total weight of such “manufactured drug” or “preparation”, including the neutral material, is required to be considered while determining the small quantity or commercial quantity. Only such an interpretation would achieve the objectives and purpose of the NDPS Act. Any other interpretation to defeat the object and purpose of enactment of the NDPS Act as a deterrent.

12(b). The neutral substance quantity will have to be considered as a whole, whilst determining whether the

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quantity is a small or commercial quantity. In the case of IO., NCB., Thiruvananthapura Vs., K K Naushad in 2022 LiveLaw SC 578 the Hon’ble Apex Court has held that neutral substance quantity cannot be ignored while labeling contraband recovered as ‘Small’ Or ‘Commercial’ quantity.

12(c). In the recent judgment of Bombay High Court reported in 2022 Live Law Bom 432 in the case of K S Arunkumar Vs., State of Goa, the matter was referred to Hon’ble Divisional Bench to answer whether blotter paper forms an integral part of L.S.D. when put on a blotter paper for consumption and, as such, the weight of the blotter paper containing L.S.D. will have to be considered for determining a small or commercial quantity of the offending drug under the NDPS Act, 1985. whether blotter paper that carries the drug (L.S.D. drops), which facilitates its consumption as a whole, is a preparation, mixture, or neutral substance within the meaning of the NDPS Act 1985.

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12(d). In the said reference the Hon’ble Division Bench of Bombay High Court had answered the reference holding that blotter paper forms an integral part of L.S.D. when put on a blotter paper for consumption and, as such, the weight of the blotter paper containing L.S.D. will have to be considered for determining a small or commercial quantity of the offending drug under NDPS Act where also held that blotter paper is only a carrier, facilitating its consumption. However, the same is neither a preparation nor a mixture within the meaning of the NDPS Act. The combined weight of the L.S.D. and the blotter or just the weight of the pure L.S.D. is relevant to determine the small or commercial quantity.

1. In the case on hand, the learned counsel for the petitioner has argued that active substance has to be taken into consideration to find out whether the seized drug falls within the category of small quantity or commercial quantity. In view of the categorical observation of Hon’ble Apex Court in the Hira Singh case and the latest judgment of Hon’ble Apex Court it is settled that what is harmful or injurious is the

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entire mixture/tablets with neutral substances and Narcotic Drugs or Psychotropic Substances. Therefore, going only by the weight of the pure drug or psychotropic substance would frustrate the intention and purpose of enacting the NDPS Act. Thus, the contention raised by the learned counsel for the petitioner that only the quantity of substance is to be taken into consideration is unsustainable.

1. The NDPS Act provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. At this stage, it is necessary for me to refer to the judgment of Hon’ble Apex Court in

Crl.Appeal No.1043/2021 dated 22.9.2021 in the case

Union of India through NCB., Lucknow Vs., Mohammed

Nawaz Khan wherein the NCB., Lucknow has challenged theorder of grant of bail to the accused by the Hon’ble High Court of Allahabad, Lucknow Bench. In the said case the Hon’ble Apex Court pleased to make a detail discussion on the criteria to be considered for grant of bail when the accused is

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prosecuted under the provisions of NDPS Act. At para­20 of the judgment the Hon’ble Apex Court pleased to note that:­

the High Court and this court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug­trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. In the present case, the High Court while granting bail to the respondent adverted to two circumstances, namely (i) absence of recovery of the contraband from the possession of the respondent and (ii) the wrong name in the endorsement of translation of the statement under Section 67 of the NDPS Act. As regards to the finding of Hon’ble High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two­judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non­application of mind by the High Court. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.

Further in regard to non compliance of the procedure laid U/s.42 of NDPS Act, it is held by the Hon’ble Apex Court that it is a question of fact. Further, at Para­30 the Hon’ble Apex

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Court pleased to make the following essential elements ought to have been considered by the Hon’ble High Court of Lucknow.

(i) The respondent was traveling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co­accused;

• The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him;

• The quantity of contraband found in the vehicle is of a commercial quantity; and

• The contraband was concealed in the vehicle in which the respondent was traveling with the co­accused.

By making a detail observation in granting the bail to the accused is incorrect and has set aside the impugned order.

The aforesaid recent judgment of Hon’ble Apex Court clearly highlights on the aspect that what are all the circumstances to be considered and has to be evaluated by the court to consider the bail plea of the accused.

In the recent judgment of Hon’ble Apex Court in the case

of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it is

observed that

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“reasonable grounds” means something more than primafacie 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 in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

Further in the judgment of Hon’ble Apex Court in the

case of State of MP Vs., Kajad reported in 2001 (7) SCC

673 has held that :

“5. ………….. Negation of bail is the rule and its grant an

exception under sub­clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the petitioners are not guilty of the offences with which they are charged and further that they are not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub­section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.”

In    the    recent    judgment     of   NCB    V/s    Mohit     Agarwal    in

Crl.A.1001­1002 of 2022, dated 19.07.2022 in the said case

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the appellant NCB being aggrieved by the order of post arrest grant of bail to the accused by the Hon’ble High Court of Delhi has impugned order of bail before the Hon’ble Apex Court. In the said case Hon’ble Apex court on appreciating the various parameters of grant of bail at para 18 of the order has observed has hereunder:

In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge­sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.

In the said case accused is prosecuted for the offences punishable U/s.8, 22 and 29 of NDPS Act. Accused No.1 and 2 were apprehended and 20 Kgs of Tramadol tablets were seized. During follow up action basing on the disclosure statement, raiding team proceeded to the godown of Pramod Jaipuria and conducted a search during which a cache of drugs covered under the NDPS Act, were recovered. The said drugs included

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6,64,940 tablets of different psychotropic substances including Tramadol, Zolpidem and Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900 tablets weighing 990 gms., were recovered during the search conducted by the NCB officials at the premises of the co­ accused, Manoj Kumar at Ludhiana. In the said case the accused has been granted bail by Hon’ble High Court which has been held to be incorrect it is observed further that the length of the period of custody of a accused or the fact that the charge sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.

In the dictum of Babua Vs., state of Orissa reported in

2001(2)SCC 566 the Hon’ble Apex Court has held that:­

“3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the petitioners are not guilty of such offence and that they are not likely to commit any offence while on bail alone will entitle them to a bail. In the present case, the petitioners attempted to secure bail on various grounds but failed. But those reasons would be

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insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioners or not. At this juncture, we cannot say that the petitioners are not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that they are not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the petitioners would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.”

As per the enunciation of law in the aforesaid dictums it is clear that no person shall be granted bail unless the two conditions are satisfied, i.e., the satisfaction of the court that there are reasonable grounds for believing that the petitioners are not guilty and that they are not likely to commit any offence while on bail. Huge quantum of contraband seized from the consignments sent by Rashe Life Sciences Private Limited. The petitioners herein are having knowledge of export and storage of contraband seized in the case. At this stage, there are primafacie materials available against the petitioners that they were exporting and storing huge quantity of

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contraband in the case. At this stage, no material placed on record by the petitioners to show that the present petitioners are no way connected with the alleged crime. In the result, I proceed to hold that the petitioners herein have not made out any grounds to entertain their plea for bail. Accordingly, I answer point No.1 in the negative.

1. Point  No.2:­   In  the  result,  I  proceed  to  pass

following:

ORDER

The petition filed by the petitioners U/Sec.439 of Cr.P.C is hereby rejected.

[Dictated to the stenographer, directly on the computer, typed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 23^rd day of November 2023)

(B. S. JAYASHREE)

XXXIII ACC & SJ & SPL.JUDGE,

(NDPS) : BENGALURU.

CN/*