IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-32667 of 2008 Date of decision: 23rd April, 2009 Rajender Singh … Petitioner Versus Narcotics Control Bureau and another … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.S. Cheema, Senior Advocate with Mr. K.S. Nalwa, Advocate for the petitioner. Ms. Sushma Chopra, Standing Counsel for Union of India. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petition has been filed under Section 482 Cr.P.C. seeking quashing of the complaint No. 22/2006 titled ‘State (Narcotics Control Bureau) v. Rajender Singh and others’ filed by Narcotics Control Bureau, Delhi under Section 8(c), 9A, 25A, 29, 22 and 30 of the NDPS Act. Present petition has been filed on 10th December, 2008. Charge against the petitioner was framed on 17th January, 2007. The order framing charge read as under: “Heard. Documents perused. A prima facie case for framing of charge under Sections 8(c), (A, 25A, 29 and 22 read with Section 30 of the NDPS Act is made out against the accused. Let the accused be charged accordingly.” Criminal Misc. No. M-32667 of 2008 In the present case, notice of motion was issued by the Coordinate Bench. Reply has been filed by Narcotics Control Bureau and para 5 of the reply reads as under: “5. Although samples of ephedrine have tested negative yet the presence of other chemicals in the factory establish that the accused persons including the petitioner were attempting to manufacture Meth-amphetamine with the help of seized chemicals/ apparatus and thus committed offence punishable under Section 30 of the NDPS Act.” After having stated the material portion, on which arguments have been addressed, it will be pertinent to notice the brief facts of the case. It is stated in the petition that petitioner is 44 years old. He migrated to Canada in year 1991. There, petitioner was granted permanent residency and he was also granted citizenship of Canada in March 2006. It is stated that in September 2006, petitioner visited India as his mother was unwell. During his stay in India, he met his friend Manjit Sethi, who requested him to help Hong Kong nationals for setting up a factory at Gurgaon for manufacture of methamphetamine (chemical) and for this, factory premises of M/s Perfect Radiators at village Kherki Daula, NH-8, Gurgaon was taken on rent. Admittedly, as per the petitioner, for manufacturing the said chemical, laboratory equipment was installed. Section 25 of the NDPS Act reads as under: “25. Punishment for allowing premises, etc., to be used for commission of an offence. – Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly, permits it to be used for the commission by any other person of an offence punishable under any provision of 2 Criminal Misc. No. M-32667 of 2008 this Act, shall be punishable with the punishment provided for that offence.” A perusal of Section 25 of the NDPS Act reveals that anybody being the owner, or occupier of any house, room, enclosure, space, place, animal or conveyance, permits the same to be used for commission by any other person of an offence punishable under any provision of the Act, commits the offence. Admittedly, in the present case, manufacturing unit of methamphetamine was installed at a rented premises. Para 3 of the petition is reproduced as under: “3. That in September, 2006, the petitioner visited India as his mother was unwell. During his stay in India, one Manjit Sethi, friend of the petitioner in Canada requested the petitioner to help Hong Kong Nationals for setting up a factory in Gurgaon for manufacture of methamphetamine (chemical) and for this purpose, the Hong Kong Nationals had rented the factory premises for M/s Perfect Radiators at village Kherki Daula, NH-8, Gurgaon (Near Haldi Ram Joint), Haryana. Further, for the manufacturing of the said chemical, the laboratory equipment had been installed. The petitioner was asked to help them as they were facing language problem in India.” Section 9-A(2) vest power in the Government to regulate manufacturing of controlled substances by issuing license permit or otherwise. Chapter 5 of the NDPS Rules 1985 prescribes the procedure for obtaining license. Rule 37 require manufacturers of synthetic manufacture drugs to obtain a license, which is to be granted by Narcotics Commissioner. In the present case, one of the questions, this Court has to answer is that where a manufacturing unit along with laboratory 3 Criminal Misc. No. M-32667 of 2008 equipment is set up without obtaining a license in absence of the raw material, whether the same shall fall under Section 30 of NDPS Act, which prescribes punishment for preparation of the offence ? To examine this, it will be necessary to examine the pleadings made in the impugned complaint (Annexure P-1). In para 3 of the complaint, it has been specifically stated that the accused have violated and contravened the provisions of Section 8(c) and 9A of the Act punishable under Section 25A, 29 and 22/30 of the Act. Section 8A(c) reads as under: “8. (c) Produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter- State, export inter-State, import into India, export from India or transship 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 authorization also in accordance with the terms and conditions of such licence, permit or authorization. Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.” In para 4, sub para (iv), what was recovered from the manufacturing hall, has been mentioned, as recovery and search memo was also prepared. Sub para (v) of para 4 reads as under: “4. (v) During Spot interrogation WONGKIN, AU YEUN KWOK and Rajender Singh admitted the recovery and 4 Criminal Misc. No. M-32667 of 2008 seizure of the seized items and stated that they had set up laboratory for the manufacture of ‘Methamphetamine’ for which Ephedrine was being used as a raw material and the other chemicals and equipments wee being used in the production of the Methamphetamine.” In the present petition, thrust argument is that 550 kg of Ephedrine, a controlled substance, was allegedly recovered, which was sent to the laboratory and laboratory reported that same is negative for any psychotropic substance. Another sample was also sent and it was again opined that no psychotropic substance has been found. Therefore, it has been submitted that once there has been no recovery of Ephedrine, a psychotropic substance, therefore, all charges are bound to fail. This Court is conscious of the fact that at the time of framing of charge, no arguments were addressed. Once, even if this Court, for the sake of argument, hold that no Ephedrine was recovered, yet the finding cannot be returned that the equipment found was not capable to manufacture methamphetamine, psychotropic substance. Even though, the petitioner has stated in para 3 of the petition that manufacturing unit for production of methamphetamine was set up, counsel has stated in course of arguments that the averment made could not be comprehended and what was stated was only narration of facts from the prosecution case, yet at time of framing of charge, only averments made in complaint are to be taken into consideration prima facie. Be that as it may, it is a case of prosecution that a manufacturing unit was set up. This fact surface in the statement recorded of the various persons under Section 67 of the Act. Furthermore, petitioner and his co-accused are not possessed of any license. Therefore, once the charges have been framed and trial is in progress, this Court will hesitate to cause interference. 5 Criminal Misc. No. M-32667 of 2008 Mr. R.S. Cheema, Senior Advocate assisted by Mr. K.S. Nalwa, has stated that in the statements of the witnesses relied by complainant, no expert has been examined to state that the laboratory set up and the equipment found, is sufficient for the manufacture of methamphetamine, psychotropic substance. Whether the same is sufficient or not, is a matter of evidence. Whether the Court shall examine any such expert as a Court witness or not, is one possibility which cannot be ruled out. Otherwise, if the witnesses make any improvement, what is the effect of improvement, is in the realm of appreciation of evidence. Further reliance has been placed upon ‘State of Karnataka v. L.Muniswamy and others’ AIR 1977 Supreme Court 1489, to say that in the present case, proceedings should be quashed, as chances of conviction are bleak. Taking into consideration the submissions made by counsel for the petitioner and the pleadings made in the petition, I am of the view that such inference is not possible. Hence, there is no merit in the present petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE April 23, 2009 rps 6