1 Appln.: 5797/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5797 OF 2010 Union of India ] (At the instance of Assistant ] Commissioner of Customs (P), ] Prosecution Cell, ] Applicant Customs (Prev.) Commissionerate, ] New Balard House, Ballard Estate, ] Mumbai - 400 001 ] Vs. 1. Mr. Barry David Hulse, ] British National, Aged about 37 yrs. ] Residing at (i)2, Shakespear Road, ] Prestwich, Manchester M 259 GW, ] U.K. (ii) 5, Seedley Park Road, ] Respondents Salford MCR, 7 Dunbell Street, ] UK (At present in judicial custody) ] ] 2. State of Maharashtra ] Ms. R.B. Amrolia, Advocate for applicant. Mr. A. Majeed Memon, Advocate for respondent no.1. Mr. P.S. Hingorani, Public Prosecutor for State of Maharashtra. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 27th January, 2011 PC : 1. This application by the Union of India filed under Section 482 Code of Criminal Procedure is directed against the order dated 2nd December 2010 granting bail to respondent no.1, who is facing charges under Section 22(c) read with Section 8(c) and Section 28 read with Sections 23, 22(c) and 8(c) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 2 Appln.: 5797/2010 “NDPS Act”). The impugned order grants bail to respondent no.1 on his fourth attempt at bail. His first two applications had been dismissed on merit, while the third application was withdrawn. The fourth application filed a few months after withdrawal of the third application was allowed by the impugned order. However, on the application of the prosecution, the order was stayed, as a consequence of which, respondent no.1 continues to be in judicial custody till date. 2. Before touching upon the merits of the case, it would be convenient to deal with the preliminary objection of maintenability of the application raised by respondent no.1. Mr. Memon, the leaned counsel for respondent no.1 submits that though the present application has been styled as an application under Section 482 Code of Criminal Procedure (Cr.P.C. in short), the actual relief sought therein is in the nature of cancellation of bail granted by the Special Court. As such the application ought to have filed under Section 439(2) of Cr.P.C. He argues that since there is efficacious and express remedy available under the Cr.P.C., the inherent powers of the court under Section 482 Cr.P.C. cannot be invoked by the applicant. Therefore, according to him, the application deserves to be dismissed summarily, as not maintenable. Ms.Amrolia, Special Public Prosecutor (Customs) submits on the other hand, in reply, that in fact there is no remedy available in law to the applicant, other than the application under Section 482 Cr.P.C. She draws attention of the court to the provision of Section 439(2) Cr.P.C., which reads as follows : 3 Appln.: 5797/2010 “(2) the High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody”. She submits that Section 439(2) cannot resorted to until the person who has been granted an order of bail has been released on bail. The person can be rearrested or recommitted to custody, only when he is released on bail. In the instant case, respondent no.1 is not yet released on bail. Apart from the express provision of Section 439(2) Cr.P.C., she relies upon decision of the Single Judge of this Court in B.S. Rawat, Assistant Collector of Customs, Bombay vs. Leidomann Heinrich and another, reported in 1991, Criminal Law Journal, page 552 in support of her argument that in the facts of the case, Section 439(2) Cr.P.C. has no application. In the decision cited, this Court has held that the language used in Sub-Section (2) of Section 439 Cr.P.C. is very clear and explicit. When it uses the expression “any person who has been released on bail”, it would mean that the accused is not only granted bail, but has availed of the same and is released from his jail custody. It is only then that this Court can direct a person to be arrested and committed to custody as provided in Section 439(2) of Cr.P.C.. It has further been observed that in fact no question of his rearrest or recommittal to custody can arise if the accused is not actually released on bail granted to him and continues to be in custody. 3. Ms. Amrolia next relies upon another decision of Single Judge of this Court in the case of Mahendra Manilal Shah and etc. vs. 4 Appln.: 5797/2010 Rashmikant Mansukhlal Shah & Anr., reported in 2010 Criminal Law Journal, page 4357. In the decision cited, this court was considering two applications, one filed under Section 439(2) and 482 Cr.P.C. and another under Section 439(2) Cr.P.C. and Article 227 Constitution of India, for cancellation of bail granted by the trial Court to respondent to the application who had not yet availed of the bail granted to him and was not released on bail. Relying on the decision in B.S. Rawat’s case (supra), this Court held that in view of the clear and explicit language of Section 439(2) Cr.P.C., no resort can be made thereto unless the accused is actually released on bail. It held that however in such a situation, the court is not helpless. It the absence of any provision in Cr.P.C. for cancellation of bail in such a situation, this Court can examine the order under Section 482 Cr.P.C. to correct an error and to set aside the order not supported in law. The learned Single Judge found support for his view from the decision of the Madras High Court in the case of Central Bureau of Investigation vs. Louis Jalu alias Muthu-Krishna Varadharajulu, reported in 2006, Criminal Law Journal (NOC), 387, the Division Bench of this Court in the case of State of Maharashtra vs. Tukaram Shiva Patil & others, 1975 reported in 1977 Criminal Law Journal, page 394 and the decision of Punjab and Haryana High Court, in the case of State of Punjab vs. Balraj Singh & Ors., reported in 1986,Criminal Law Journal, 1255. 4. I am in complete agreement with the argument of Ms. Amrolia and the view expressed in the two decisions cited. In view of clear 5 Appln.: 5797/2010 and explicit language of Section 439(2) Cr.P.C., time for application thereunder for cancellation of bail does not arise until the accused avails of the bail and until his actual release on bail. The application for cancellation of bail involving his rearrest or recommittal to custody made prior to such time would be premature and as such not maintenable. There is no specific provision made in Cr.P.C. To meet this eventuality. Therefore the only course open to the prosecution desirous of challenging the order of grant of bail on the ground that the same is erroneous or not supported in law is to invoke the extraordinary power of this Court under Section 482 Cr.P.C. In the circumstance, I find no substance in the preliminary objection raised by respondent no.1 as regards maintenability of the application. 5. Coming to the merits of the case, the facts of the prosecution case stated in brief are that based on the reference received from Assistant Commissioner of Customs, Postal Appraising Section, the Officers of Customs preventive, NCCP/ R & I Wing, Mumbai examined three consignments of postal parcels being Postal Parcel No. CP107728241 dated 31st December 2008, Postal Parcel No.CP 107728240 dated 31st December 2008 and Postal Parcel No. 107305115-RPA dated 4th January 2007. The parcels were covered by the customs declaration in original in Forms “C” and “22” filed by respondent no.1 along with xerox copy of his passport issued in his name at U.K. As per the Customs declaration, the first parcel contained “Magic Boxes, Garnier Products and Incense Sticks”, the second parcel “Magic box, Incense Sticks, T-shirts, pasminas and 6 Appln.: 5797/2010 wooden items” and the third parcel “20 T-shirts, 4 wooden boxes and 60 incense sticks”. The parcels however actually contained 24470, 20690 and 29970 strips of “Relaxo 10 brand”, Diazepam tablets” respectively. All the three consignments were booked from Calangut post office, Goa in the name of Mr. Barry Hulse, respondent no.1 and were to be received by him at 5, Shakespeare Road, Prestwhich, Manchester, England. The consignments were seized under the panchanama at Foreign Post Officer, G.P.O., Mumbai. The total quantity of Diazepam seized from the three consignments was of 751.30 gms., which is commercial quantity as per the Central Government Notification. There is no dispute that Diazepam is a psychotropic substance as defined in Section 2(xxiii) of the NDPS Act since it finds it’s mention at serial no.43 of the schedule appended to NDPS Act. It is also a Schedule `H’ drug under the Drugs and Cosmetics Act and falls under exception under Section 8(c) of NDPS Act as it is a medicinal drug. 6. On the basis of the alert notice, respondent no.1 was detained at Dhabolim Airport, in the morning of 21st November 2009 on his arrival from U.K. He was handed over to the customs officers at Goa. From there, he was brought to Mumbai on the same day. The statements of respondent no.1 were recorded at Goa as well as at Mumbai under Section 67 of the NDPS Act. 7. The first two applications for bail were filed by respondent no.1 while he was under remand. On completion of investigation, complaint came to be filed by the applicant before the Special Judge 7 Appln.: 5797/2010 being NDPS Special Case No.87 of 2010 on 6th May 2010. Upon filing the charge-sheet, respondent no. 1 had moved an application for bail, which was subsequently withdrawn on the ground that a matter of similar nature was pending before the Apex Court for consideration. Respondent no. 1 felt that it was desirable to wait till the issue was decided. The matter pending was Criminal Appeal No.1845 of 2010 arising out of S.L.P. (Cri.) No.4135 of 2001 (Jagdish Singh vs. Union of India & Anr.). That came to be decided on 23rd September 2010. Thereafter the fourth bail application was filed which according to respondent no.1 was the first bail application to be decided on merit post filing of charge-sheet. 8. Since the orders on the first two bail applications passed on merit will have some relevance, it will be convenient to notice them at this stage. The first application for bail was based on two main grounds. It was contended that the seized contraband being covered under Schedule “H” to the Drugs and Cosmetics Act, it fell within the exception to prosecution under Section 8(c) of the NDPS Act. Therefore NDPS Act was not applicable to the case. Secondly that the seized contraband was not of commercial quantity. This contention was taken in view of the fact that the 1st remand application at time of which the bail application was made referred to only two consignments containing total quantity of Diazepam of 451.80 gms. which is not commercial quantity. As per the Central Government Notification , quantity beyond 500 gm. for Diazepam is to be treated as commercial quantity. The prosecution had argued that though 8 Appln.: 5797/2010 Diazepam is also Schedule “H” drug under the Drugs and Cosmetics Act, since respondent no.1 had tried to export the psychotropic substance out of India his act attracts the provision of Section 8(c) read with 23 of NDPS Act. The prosecution also relied upon Section 80 of NDPS Act which states that the provisions of NDPS Act and the rules made thereunder shall be in addition to and not in derogation of the Drugs and Cosmetics Act and the rules made thereunder. As regards the quantity of the contraband, the stand of the prosecution was that since the case was at the initial stage, the quantity of contraband was not much relevant. 9. Respondent no.1 had relied upon decision of the Apex Court in the case of State of Uttaranchal vs. Rajeshkumar Gupta, reported in 2007(1) Bombay C.R. 79 (Cri.) (S.C.) in support of the claim on applicability of the NDPS Act in view of Diazepam being a Schedule ‘H’ drug. Based on the judgment, it was argued that respondent no.1 may have committed an offence under Drugs and Cosmetics Act, but not under the NDPS Act or NDPS Rules. The learned Special Judge, however, accepted the argument of the prosecution distinguishing Rajeshkumar Gupta’s case on facts. In that case, the allegations were not of illegal export of the psychotropic substance, but of illegal possession. The learned Special Judge also accepted reliance by the prosecution of another decision of the Apex Court in the case of D.Ramkrishnan vs. Intelligence Officer, Narcotic Control Bureau, reported in 2009 AIR SCW 4772. D. Radhakrishnan’s case dealt with the allegation of illegal export of psychotropic substance, 9 Appln.: 5797/2010 which was also schedule “G” and “H” drug by the accused who had no authority under NDPS Act to export the substance. It was held therein that to these facts the decision of Rajeshkumar Gupta’s case was not applicable. The general permission for import and export under Drugs and Cosmetics Act was not sufficient as that Act does not deal with exports. The accused, therefore, were required to comply with the specific requirements of the NDPS Act. In addition, the Apex Court took note of Section 80 of the NDPS Act. 10. As regards the quantity of the contraband seized, the learned Special Judge held that though the bail application was filed based on the seizure and quantity of two consignments mentioned in the first remand application dated 22nd November 2009, the second remand application dated 27th November 2009 made a reference to the third consignment of contraband taking the total quantity beyond the specification for “small” quantity. The learned Special Judge also rejected the submission that the third consignment was shown to bring the contraband in commercial quantity so as to defeat the rights of respondent no.1 to claim the bail. The concluding paragraph of the order on the 1st bail application reads as under : “Considering the above circumstances, I hold that though the drug Diazepam is psychotropic substance which is included in Schedule-H Drug of the Drugs and Cosmetics Act and falls under exception U/s 8(c) of the NDPS Act being the medicinal preparation but as observed in a case D.Ramkrishna the plea of accused that they have not committed offence under NDPS Act is not tenable because charge against them is for illegal export of drugs. Therefore, I hold that in view of decision cited on behalf of the prosecution, the application for bail deserves to be rejected”. 10 Appln.: 5797/2010 11. The second application for bail was filed on completion of 60 days of judicial custody of respondent no.1 claiming right under Section 167(2) Cr.P.C.. Respondent no.1 again questioned the quantity of the contraband seized as commercial quantity. The learned Special Judge observed that the question of quantity of the contraband had already been decided at the remand stage. There was prima facie material that the quantity involved in the case was commercial. Therefore Section 36(A)(H) of NDPS Act was applicable under which the period of remand is to be construed as 180 days if the offence involves commercial quantity. With this, the second bail application was rejected. 12. In the fourth application, respondent no.1 once again challenged the quantity of seized contraband. This time the challenge was upheld raising doubts about booking of the third consignment by respondent no.1. An additional ground was taken in the application that the contraband though included in the Schedule to the NDPS Act does not find mention in Schedule-I in the Rules framed under the Act. Hence, it could not be said that there was any contravention of Section 8(c) of NDPS Act. In this connection, reliance was placed upon unreported decision of the Apex Court in the case of Jagdish Singh (supra) and unreported decision of Single Judge of this Court in Pradeep Dhond vs. Intelligence Officer, NCB in Criminal Application No.6787 of 2005 dated 7th February 2006. On the basis of observations in the two decisions, the learned Special Judge held. 11 Appln.: 5797/2010 “that mere allegations against the accused when particularly the psychotropic substance Diazepam which is included in the Schedule to the NDPS Act does not find mention in Schedule-I to the Rules framed under the NDPS Act on the basis of the observations of the Apex Court offences cannot be said governed by the provisions of Sec.8(c) of NDPS Act or it cannot be said that there is contravention of Section 8(c) of NDPS Act prima facie when the psychotropic substance Diazepam is not included in the Rules made under the NDPS Act as observed in the said case”. 13. In the case of Pradeep Dhond, the prosecution had arrested two Nigerian persons at the Airport, who were carrying a psychotropic substance “Pantacozine”. They allegedly had purchased the drug containing the contraband from the applicant, who operates his business in association with M/s Gujarat Marketing. The firm of M/s Gujarat Marketing held certificate of Importer and Exporter Code (IEC) issued by Ministry of Commerce, Government of India. The firm had supplied the drugs to the applicant. It was contended on behalf of the applicant that Pantacozine being schedule-H drug under Drugs and Cosmetics Act, no offence could be said to have been committed under NDPS Act. It was also contended that the prohibition contained in Rule 64 of the NDPS Act does not extend to Pantacozine as the same is not included in Schedule-I to the NDPS Rules. The judgment deals with the argument in following manner. 11. “As far as “The Schedule” to the Act which contains list of Psychotropic Substance at Item No.27 - Pentacozine is mentioned. However, as far as the NDPS Rules are concerned, Chapter VII dealing with Psychotropic Substances contains General prohibition vide Rule 64 reading thus : “64. General Provision- No person shall manufacture, possess, transport, import inter-State, export inter- 12 Appln.: 5797/2010 State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule- I” 12. A bare perusal of the said Rule would indicate that general prohibition is qua the operations stipulated in Rule 64 and with regard to Psychotropic Substances specified in Schedule-I. Mr. Salvi does not dispute that Pentacozine is not mentioned in Schedule - I to the Rules. In this view of the mater, my reasoning in Criminal Application No.3295 of 2005 would squarely apply in this case as well”. From the above extract, it can be seen that the decision in Pradeep Dhond’s case by itself does not state any reasons for taking a view that unless a psychotropic substance finds it’s place in Schedule- I to the NDPS Rules, the prohibition under Section 8(c) of the NDPS Act is not attracted. Further the order in Criminal Application No. 3295 of 2005 favourably referred to in the decision was neither produced before the learned Special Judge nor produced before this Court. 14. The Union of India has carried the order in Pradeep Dhond’s case in appeal to the Apex Court. By the following order dated 20th April 2007, the appeal has been referred to a larger bench of three judges. “O R D E R Our attention has been invited by the learned counsel to two decisions of this Court; namely, a decision of 3-Judge Bench in Collector of Customs, New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and subsequent decision of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kumar Gupta (2007) 1 SCC 355. Reference was also made of Section 80 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which reads as under : 13 Appln.: 5797/2010 “80. Application of the Drugs and Cosmetics Act, 1940 not barred.- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.” In our opinion, in view of the fact that the effect of Section 80 requires to be considered, we grant leave and direct the Registry to place the papers before the Hon’ble the Chief Justice for placing the matter before a 3-Judge Bench”. 15. In the case of Jagdish Singh also the contraband involved is included in the Schedule to the Act but does not find mention in Schedule-I to the rule framed under the Act. The learned Special Judge had granted bail to him relying upon the order in Pradeep Dhond’s case amongst several others. The Union of India challenged the order of bail before the High Court. The High Court issued rule on the application and stayed the operation of the bail order in view of reference of the decision in Pradeep Dhond’s case to a larger bench. This was not approved by the Apex Court. It held that it was not proper, fair or correct for the High Court to stay the bail order passed by the Special Judge for the reasons assigned in its order and to leave the matter indefinitely in the limbo. The Apex Court therefore lifted the stay granted by the High Court by allowing the appeal. 16. Ms. Amrolia makes a two pronged attack on the impugned order. She submits that the decision in the case of Pradeep Dhond as also Jagdish Singh’s case is completely distinct on facts. She points out that the prohibited operations alleged in the case of Pradeep Dhond and Jagdish Singh were of only possession and sale of psychotropic 14 Appln.: 5797/2010 substance in India. They do not involve export of psychotropic substance from India unlike in the present case. As there are separate and specific provisions regarding export under the rules, any decision based on appreciation of rules regarding possession or sale of psychotropic substance can have no bearing on the present case. The second argument is that as can be seen from Section 76 of NDPS Act, the rules framed thereunder by the Central Government are for carrying out purposes of the Act and not for anything in contravention of that. She submits that the schedule of psychotropic substance under the Act is a part of the Act, and no rule can be framed or can be interpreted in the manner which could be in contravention of the said schedule or in contravention of Section 8 or 22 of the NDPS Act. Mr. Memon on the other hand has supported the impugned order. 17. In order to appreciate both the grounds of challenge of the applicant, it is necessary to know the scheme of the provisions under the NDPS Act and rules. Section 2(xxiii) defines psychotropic substance. It reads as under: Section 2(xxiii) : “psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;” Section 2(viia) provides that commercial quantity, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette and similarly, Clause (xxiiia) provides that small quantity, in relation to narcotic drugs and 15 Appln.: 5797/2010 psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Undisputedly for diazepam, the quantity specified as commercial quantity is 500 gms. Chapter 3 of the NDPS Act is about prohibition, control and regulation of narcotic drugs and psychotropic substance. It contains provision from Section 8 to Section 14. The prohibition of operations relating to psychotropic substances are at Section 8(c). The same reads as under: 8. Prohibition of certain operations No person shall - (a) .................. (b) .................. (c) Produce, 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