1 cri.applns.3618-10, 5640-2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3618 OF 2010 Union of India ...Applicant vs. Ravindran Krarapaya @ Ravi & Ors. ...Respondents WITH CRIMINAL APPLICATION NO. 5640 OF 2009 Union of India ...Applicant vs. Xie Jing Feng @ Richard & Anr. ...Respondents Appearance in above matters :- Mr.Mandar Goswami, Public Prosecutor and Special Counsel for the Appellant  Union of India. Mr.Anil Lalla i/b. M/s.Lalla & Lalla for Respondent Nos.1 and 2 and for respondent no.1 in Cri.Appln.No. 5640/2009. Mr.Y.M. Nakhwa, APP for Respondent No.3 and for Respondent No.2 in Cri.Appln.No.5640/2009. CORAM : J.H. BHATIA, J. DATED : NOVEMBER 19, 2010 ORAL JUDGMENT :- 1 Both these applications are filed by the 2 cri.applns.3618-10, 5640-2009 Narcotic Control Bureau through the Union of India for cancellation of bail granted to the accused persons by the learned Judge by two different orders. 2 Prosecution case in brief is that on 25th November, 2008, Intelligence Officer S.K. Sinha received intelligence that two Malaysian Nationals viz. Ravindran Karapaya @ Ravi, accused no.1 and Gunasekaran Pillay @ Guna, accused no.2 residing at flat no.601, building no.3, Mercury Co-operative Society, Evershine Millennium Paradise, Sector-2C, Thakur Village, Kandiwali, had stored substantial quantity of Methamphetamine, a psychotropic substance and Ephedrine which is a controlled drug in the said premises. It was also learnt that the said contrabands were procured by them from the factory of M/s.Sakha Organics Pvt.Ltd. situated at village Mokshi, Taluka Savali, District Vadodara in Gujarat State. On the basis of that information, officers of NCB along with panchas raided the said 3 cri.applns.3618-10, 5640-2009 premises being flat no.601. At that time, none of the accused were present. In their absence, search of the flat was taken and 7 kg. Of Methamphetamine and 5 kg. Of Ephedrine in the form of white powder were recovered. Some glass/plastic bottles were also recovered from the containers containing the said chemicals. All these contraband articles were seized and sealed under panchnama. It was revealed that on 21st November, 2008 i.e. about four days before the above seizure, accused nos.1 and 2 were arrested by Ahmadabad Zonal Unit of NCB in connection with seizure of Methamphetamine at Vadodara. At the same time, Xie Jing Feng @ Richard, who is accused no.3, was also arrested at Vadodara by NCB in connection with the seizure of Methamphetamine. All the three accused were also taken into custody in connection with the seizure of Methamphetamine and Ephedrine from the flat no.601, Kandiwali (East), Mumbai. On 25th November, 2008 itself, their statements were recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 4 cri.applns.3618-10, 5640-2009 referred to as the NDPS Act ). Their statements revealed that accused no.3 used to deal with export of the contraband drugs and accused nos.1 and 2 used to assist him for which they were getting monthly salary. It was also revealed that accused no.1 Ravindran Karapaya and accused no.3 Xie Jing Feng had brought 7 kg. Of Methamphetamine and 5 kg. of Ephedrine from a factory at Vadodara to Bombay and stored the said material in the flat no.601. Methamphetamine is a psychotropic substance while Ephedrine is a controlled substance within the meaning of NDPS Act and accused persons committed offences punishable under Sections 22 and 25-A of the NDPS Act. In the said case being Crime No. 11/2008, Intelligence Officer filed a complaint before the Special Court which came to be registered as NDPS Special Case No.71/2009. Accused no.3 was granted bail on 26th November, 2009 and accused nos. 1 and 2 were granted bail on 5th March, 2010 by the learned Special Judge, mainly relying upon the judgment and order passed in Criminal Application 5 cri.applns.3618-10, 5640-2009 No.3295/2005 (M.V. Henry vs. Raviprakash Goyal) and Pradeep Dhond vs. NCB, Mumbai, decided by the learned Single Judge of this Court. The learned Additional Sessions Judge held that prima facie the provisions of NDPS Act are not applicable and therefore, the embargo contained in Section 37 of the NDPS Act for grant of bail will also not be applicable. 3 Prosecution has challenged the grant of bail by the Special Judge on the ground that the Methamphetamine is a psychotropic substance as defined in Section 2(xxiii) as it is shown at Serial No.19 in the Schedule under Clause (xxiii) of section 2 of the NDPS Act. It is contended that Section 8(c) provides that no person shall 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 substance, except for medical or scientific purposes 6 cri.applns.3618-10, 5640-2009 and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder. Section 22 provides punishment for contravention in relation to psychotropic substances. It is also pointed out that as per the table notified by the Government of India as per sub-clause (viia) and (xxiiia) of Section 2 of the NDPS Act, small quantity of Methamphetamine, also known as Metamfetamine, is 2 grams while commercial quantify is 50 grams. In this case, 7 kg. Of Methamphetamine in powder form was recovered. It is contended that in view of the large quantity of psychotropic substance under Section 22(c), the offence is punishable with imprisonment for not less than 10 years and which may also extend to 20 years with fine. It is also contended that Ephedrine is the controlled substance as per the provisions of Section 9(a) of the Act and contravention of provisions of Section 9(a) in respect of controlled substance is also punishable under Section 25-A with rigorous imprisonment for a term which may extend to 7 cri.applns.3618-10, 5640-2009 10 years and also with fine. It is contended on behalf of the prosecution that the learned trial court committed error in holding that the provisions of NDPS Act are not applicable and that no offence under the said Act is made out. 4 On the other hand, the learned Counsel for the accused persons vehemently contended that even though Methamphetamine is shown as psychotropic substance in the Schedule annexed with the NDPS Act, it is not shown in the Schedule I as per Rules 53 and 64 of the NDPS Rules, 1985 and therefore, under the Rules, the general prohibition imposed by Rules 53 and 64 are not applicable. He also contended that it a drug in Schedule X under the Drugs and Cosmetics Act, 1940 and therefore, the provisions of NDPS Act will not be applicable. He contended that assuming, but not admitting, that the said substance was in possession of the accused persons, still it does not amount to an offence and in support of this, he placed reliance upon several authorities, 8 cri.applns.3618-10, 5640-2009 particularly, the judgment of Delhi High Court in Rajinder Gupta vs. The State, judgment of this High Court in M.V. Henry, Intelligence Officer vs. Ravi Prakash Goel & Another (Criminal Application No. 3295/2005) and Pradeep Dhond vs. Intelligence Officer, Narcotics Control Bereau (Criminal Application No.6787/2005), Riyaz s/o. Razak Memon & Anr. vs. The State of Maharashtra (Criminal Application No.3196/2010) and Supreme Court judgment in State of Uttaranchal vs. Rajesh Kumar Gupta, 2007 (1) Crimes 6 (SC). According to him, when the said Methamphetamine is a scheduled drug under the Drugs and Cosmetics Act and when it is not included in Schedule I under the Rules, the provisions of Section 8 and 22 of the NDPS Act will not be applicable and no offence is made out. He contended that the trial court was justified in granting bail to the accused persons relying on the judgment of this Court in M.V. Henry, Intelligence Officer vs. Ravi Prakash Goel & Another (supra). 9 cri.applns.3618-10, 5640-2009 5 Section 2(xxiii) defines psychotropic substance. It reads thus :- 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. Methamphetamine is shown at entry no.19 in the Schedule of the psychotropic substances and therefore, there can be no dispute that Methamphetamine is the psychotropic substance as defined in Section 2(xxiii). 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 psychotropic substances, means 10 cri.applns.3618-10, 5640-2009 any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. The Central Government has issued a Notification under sub-clause (viiia) and (xxiiia) of section 2 and Methamphetamine, also known Metamfetamine, is at Entry no.159 of the said table and as per column 6, the commercial quantity means the quantity more than 50 grams. In the present case, 7 kg. of Methamphetamine was allegedly seized from flat no.601 and thus, undoubtedly, it is huge commercial quantity. 6 Section 8(c) of the NDPS Act reads as under :- 8.Prohibition of certain operations  No person shall - (a) xxxxxxxxxxxx (b) xxxxxxxxxxxx (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 substance, 11 cri.applns.3618-10, 5640-2009 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: 7 From this it is clear that no person shall produce, manufacture, possess, sell, purchase, transport, import inter-State, export inter-State, import into or export from India or tranship any narcotic drug or psychotropic substance except for medical or scientific purposes and when it is produced, manufactured, possessed, sold, purchased, transported, warehoused, used, consumed, imported or exported inter-State or in India or outside India, all that has to be done in the manner and to the extent provided by the said Act, Rules or Orders that may be issued and also subject to the requirements of the licence, permit or authorisation which may be issued. 12 cri.applns.3618-10, 5640-2009 8 Section 22 is a penal provision and is in relation to psychotropic substance. It reads thus :- Section 22.Punishment for contravention in relation to psychotropic substance.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,- (a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: 13 cri.applns.3618-10, 5640-2009 Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 9 From the language of Section 22, it becomes clear that whoever manufactures, possesses as well as purchases, transports, imports inter-State, export inter-State or uses any psychotropic substance shall be punished if any such act is done in contravention of any provisions of the NDPS Act OR any rule OR order made under the Act OR in contravention of any conditions of the licence granted to him. Further if the provisions of Section 8(c) and Section 22 are read together, it would be clear that there is a complete ban on the production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export into India or transhipment of any narcotic drug or psychotropic substance, except for the medical or scientific purposes and where any person 14 cri.applns.3618-10, 5640-2009 is found to be in possession, etc. of any such psychotropic substance and if he does not claim that he came in possession etc. for the medical or scientific purposes by virtue of the provisions of the Act, Rules, Orders, etc., he will be treated to have contravened the provisions of Section 8(c) and that contravention is punishable under Section 22. To bring the case under exception, the initial burden will naturally lie on the accused to show that he had come in possession etc. for the medical or scientific purposes. If he claims that he has done any such act for medical or scientific purposes, it will be for him to show that he had done it in the manner and to the extent provided by the provisions of the Act, Rules or orders thereunder. If he fails to show that he had done any such act for medical or scientific purposes and as per the provisions of the Act, he will be liable to be convicted and sentenced under Section 22. Further if a person having done any such act under the provisions of the Act and but if contravenes any 15 cri.applns.3618-10, 5640-2009 Rule or Order or if contravenes the terms and conditions of licence, permit or authorisation, still he is liable to be convicted under Section 22. In view of the provisions of Section 105 of the Evidence Act, when a person is accused of an offence, the burden of proving the existence and the circumstances bringing the case within any special exception or proviso contained in any law defining the offence is upon him and Court shall presume the absence of such circumstances. As noted above, Section 8(c) prohibits a person from producing, manufacturing, possessing, selling, purchasing, transporting, warehousing, using, consuming, importing and exporting inter-State, import into India and export from India or transhipment of drug and psychotropic substance. Having prohibited such operations, Section 8 provides for exception where the person claims that he had done any such operation for medical or scientific purposes. In view of the provisions of Section 105 of the Evidence Act, the burden will lie on that person to 16 cri.applns.3618-10, 5640-2009 prove circumstances and the facts which would bring his case within the exception. 10 In the present case, from the material collected by the NCB, prima facie, it appears that the accused nos.1, 2 and 3 were in possession of flat no.601 referred above. During the search of the said flat undertaken on 25th November, 2008, 7 kg. of Methamphetamine and 5 kg of Ephedrine were found. The said material-psychotropic substance and control substance came to be seized as per the procedure. It was revealed that the three accused persons were already arrested on 21st November, 2008 in connection with seizure of Methamphetamine at Vadodara in the State of Gujarat by Zonal Unit of NCB at Vadodara. After the Intelligence Officers received the said information, they took custody of all the three accused persons in the present case. They were interrogated and during the interrogation, it was revealed that accused no.3 Xie Jing Feng, who is a Chinese National was dealing with the export of 17 cri.applns.3618-10, 5640-2009 psychotropic substance from India. Accused Nos.1 and 2 were the Malaysian Nationals and were living in India and were assisting accused no.3 in these operations, for certain monthly payments made to them by accused no.3. The accused had nowhere taken a plea that they or any other person had obtained licence, permit, authorisation to purchase, possess, store, transport, import, export said Methamphetamine which is psychotropic substance, for medical or scientific purposes. Thus, it is clear that the accused persons have nowhere taken any plea nor any document or material is produced by them to show that they had come in possession of Methamphetamine for medical or scientific purposes to bring their case within the scope and ambit of exception to Section 8. If they do not claim to have come in possession and to have stored Methamphetamine for scientific and medical purposes as per any licence, permit or authorisation, such possession or storage by them is clearly in contravention of Section 8 of the Act and in view of 18 cri.applns.3618-10, 5640-2009 the provisions of Section 22, the accused having done any such operation in contravention of the provisions of the Act, they will be liable to be convicted and sentenced. 11 As the accused have not taken any plea nor they have produced any document or material on record to bring their case within the scope and ambit of the exception to Section 8, consideration of the rules framed under the Act would, in fact, be unnecessary. However. because the learned Counsel for the respondent/accused has relied on certain authorities contending that Methamphetamine is not shown in the Schedule I to the Rules and therefore, the provisions of NDPS Act are not applicable, it will be necessary to deal with the relevant rules and the authorities relied on by the learned Counsel. 12 Section 76(1) of the Act provides that subject to other provisions of the act, the Central 19 cri.applns.3618-10, 5640-2009 Government may, by notification in the Official Gazette, make rules for carrying out purposes of this Act. Section 9 provides that subject to provisions of Section 8, the Central Government may, by rules permit and regulate cultivation, production, manufacture, etc. of coca plant, opium, other narcotic drugs as well as psychotropic substances. The Central Government by virtue of powers under Sections 9 and 76 framed and notified Narcotic Drugs and Psychotropic Substances Rules, 1985. Chapter III and IV provides for opium. In view of the language of Section 9, it is clear that the Rules, that the Central Government has framed to permit or regulate such operations, are subject to provisions of Section 8 and Section 8, as pointed out above, prohibits any such operation in respect of narcotic drugs or psychotropic substances except for medical or scientific purposes. It means under Section 9, the Government may frame rules to permit and regulate such operations as per the said exception to Section 8 and not in contravention of 20 cri.applns.3618-10, 5640-2009 the same. Similarly, Section 76 clearly shows that the Central Government may frame and make rules for carrying out purposes of the Act and not for anything in contravention to that. The schedule of the psychotropic substances under the Act is part of the Act and no rule can be framed or can be interpreted in the manner which would be in contravention of the said schedule or the contravention of Section 8 or Section 22. 13 Chapter 5 of the Rules deals with the rules and grant of licence for the manufacture of drugs. Chapter 6 of the Rules deals with import, export, transhipment of narcotic drugs and psychotropic substances. Rule 53 puts a general prohibition on the import into and export out of India on the narcotic drugs and psychotropic substances specified in Schedule I subject to other provisions of that chapter. Chapter 7 deals with psychotropic substances and Rule 64 provides that no person shall manufacture, possess, transport, import 21 cri.applns.3618-10, 5640-2009 inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I. Thus, it will be clear that while Rule 53 prohibits import in and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I. Rule 64 prohibits inter-State import or export, sell, possession, etc. of psychotropic substances specified in schedule I of the Rules. It may be noted that prior to amendment with effect from 13th October, 2006 in the Schedule I of the Rules, 33 narcotic drugs and some psychotropic substances were included in that Schedule I. After the amendment, only there are three entries under the Narcotic Drugs and there are three entries under the Psychotropic Substances, fourth in each category is salts, preparations, admixtures, extracts and other substances containing any of these drugs or psychotropic substances. Thereafter, there is a Schedule II framed under Rule 53-A which provides that narcotic drugs or psychotropic substances or 22 cri.applns.3618-10, 5640-2009 preparations specified in Schedule II shall not be exported to the countries or to the regions mentioned therein. Again in Schedule II, there are in all 45 entries and against each substance, in column no.5, names of the countries are mentioned to which, that particular narcotic drug and psychotropic substance cannot be exported. Methamphetamine is at Serial No.30 in the said Schedule and against that entry, names of 14 countries are mentioned to which this substance cannot be exported. Rule 65 provides that manufacture of psychotropic substances other than those specified in Schedule I shall be in accordance with conditions of licence granted under the Drugs and Cosmetics Rules, 1945, framed under the Drugs and Cosmetics Act, 1940, by an authority in charge of drugs control in a State appointed by the State Government in this behalf. Proviso of Rule 65 provides that said authority in charge of the drug control may issue a licence to manufacture a psychotropic substance specified in Schedule III for 23 cri.applns.3618-10, 5640-2009 the purpose of export only. In the Schedule III, there are 34 items. 14 If the schedule of the Act is perused carefully along with Schedules I, II and III under the Rules, it will be clear that while the Schedule under the Act describes the psychotropic substances, the Schedule I, II and III are framed under the Rules for different purposes and none of those three schedules contains all the psychotropic substances which are shown in the schedule to the Act. Some of them are in Schedule I, some of them are in Schedule II and some are in Schedule III of the Rules and the purpose of each schedule is different. If these schedules I, II and II are read along with Rules, it will become clear that under Rule 53, drugs and psychotropic substances specified in schedule I cannot be imported into and exported out of India, except under an import certificate or export authorisation issued under different provisions of that chapter. Under Rule 64, no person shall 24 cri.applns.3618-10, 5640-2009 manufacture, transport, possess, import inter-State, export inter-State, sell, purchase, consume, use any of the psychotropic substances specified in Schedule I. As per Rule 65, the manufacture of psychotropic substances other than those mentioned in Schedule I shall be in accordance with the conditions of the licence granted under the Drugs and Cosmetics Rules, 1945. The psychotropic substances in Schedule III should be manufactured under licence issued by the authority in charge of the drug control in the State. Rules 66(1) specifically provides that no person shall possess any psychotropic substance for any of the purposes covered by the Drugs and Cosmetics Rules, 1945 unless he is lawfully authorised to possess such substance for any of the purposes under the Rules. Thereafter, Rules 66(2) provides for possession and use of psychotropic substances by research institutions, hospitals, dispensaries, etc. It also provides for possession by an individual for his personal medical use subject to prescription by the registered Medical 25 cri.applns.3618-10, 5640-2009 Practitioner. In normal circumstances for medical purposes, one may be permitted to possess not exceeding 100 dosage units at a time and for his personal long term medical use, he may be permitted to possess more than 100 dosage but not exceeding 300 dosage at a time. The quantity which may be possessed by the research institutions, hospitals, dispensaries, etc. are also prescribed by the Rules and the licence or permit which may be issued to