1 Cri.Appln. No.1405.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1405 OF 2010 Union of India .. Applicant. Vs. Jagdish Singh and Anr. .. Respondents. WITH CRIMINAL APPLICATION NO.5718 OF 2010 Union of India .. Applicant. Vs. Harvinder Singh and Anr. .. Respondents. WITH CRIMINAL APPLICATION NO.5719 OF 2010 Union of India .. Applicant. Vs. G.Samuel @ Anna @ Raju & Anr. .. Respondents. WITH CRIMINAL APPLICATION NO.5722 OF 2010 Union of India .. Applicant. Vs. Anil Kumar Menon @ Allen and Anr. .. Respondents. WITH CRIMINAL APPLICATION NO.5725 OF 2010 Union of India .. Applicant. Vs. T 2 Cri.Appln. No.1405.10 Harjinder Ram and Anr. .. Respondents. WITH CRIMINAL APPLICATION NO.5726 OF 2010 Union of India .. Applicant. Vs. Veer Bahadur Singh and Anr. .. Respondents. Shri F.E.Saldanha, Ms.Revati Mohite Dere alongwith Ms.Smita Deokar and Mandar Goswami, Spl. P.P., for the applicant. Shril Anil G.Lalla alongwith Mr.Sunil Ghadge for respondent no.1 in Cri. Appln. No.1405 of 2010 and Appln. No.5725 of 2010. Shri Ayaz Khan for respondent no.1 in Cri.Appln. No.5718 of 2010 and Cri. Appln. No.5722 of 2010. Ms.Sartaj Shaikh for respondent no.1 in Cri.Appln. No.5719 of 2010. Shri Dilip Mishra for respondent no.1 in Cri.Appln. No.5726 of 2010. Ms.A.T.Javeri, A.P.P., for respondent no.2 – State. CORAM : J.H.BHATIA, J. DATED : 17TH FEBRUARY, 2011. ORAL JUDGMENT :- 1. All these applications are filed by the Union of India seeking cancellation of bail granted to accused nos.1 to 6 by the learned Special Judge by different orders. 2. According to the prosecution on the basis of specific information received, the officers of the Narcotics Central Bureau, 3 Cri.Appln. No.1405.10 Mumbai Zonal Unit, Mumbai intercepted accused no.1 – Jagdish Singh, accused no.2 – Harvinder Singh and accused no.3 – Harjinder Ram near the Oberoi Mall, Goregaon (East), Mumbai when they arrived there in Toyota Innova car bearing registration No.PB-10- CJ-2414. They delivered the contraband to taxi driver – Veer Bahadur Singh, who is accused no.4 The taxi driver had come by taxi No.MH-01-X-5483 for taking delivery of the contraband. On interception 25 kgs. of Methamphetamine was recovered. After completing the formalities it was seized, samples were taken. The statements of accused nos.1 to 4 were recorded under section 67 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred as “NDPS Act”) on 9th June, 2009. It was revealed that accused nos.1 to 3 had brought the said contraband from Punjab by car and it was to be delivered to accused no.5 – Anil Kumar Menon. Accused no.4, taxi driver – Veer Bahadur Singh had come near the Oberoi Mall to receive that consignment for and on behalf of accused no.5 – Anil Kumar Menon. During interrogation, in the statements of accused no.4 – Veer Bahadur Singh it was revealed that accused no.5 – Anil Menon and accused no.6 - G.Samuel @ Anna use to provide strategic and logistic support for export of the drugs to Cambodia. The statements of accused no.6 – G.Samuel @ Anna was also recorded under section 67 and he also confirmed this fact. Initially, the crime was registered bearing No.NCB/BZU/CR/09/2009. The samples were sent to forensic laboratory and after getting the 4 Cri.Appln. No.1405.10 report it was confirmed that the samples were Methamphetamine. The complaint was filed in the court of Special Judge, Mumbai on 4th December, 2009 and it came to be registered as NDPS Special Case No.152 of 2009. 3. First of all, accused no.1 – Jagdish Singh filed bail application No.237 of 2009 which was rejected by learned Special Judge as per the order dated 16th November, 2009. Thereafter, he filed another application for bail relying on certain authorities of this court as well as from different High courts and Supreme Court. His main contention was that even though Methampethamine is shown as psychotropic substance in schedule to the NDPS Act, it was not shown in schedule I to the NDPS Rules and, therefore, possession or transportation of Methampethamine could not be an offence. After hearing the parties the learned Special Judge granted bail to him by the order dated 3.3.2010. That order is sought to be set aside and cancelled by the Union of India. It may be noted that initially this court had granted stay to implementation of the bail order. That order was challenged before the Supreme Court and the Supreme Court allowed the appeal and set aside the order of stay passed by this court while the application for cancellation of bail continues to be pending before this court. After accused no.1 – Jagdish Singh was granted bail, accused nos.2 to 6 also filed different applications for bail before the learned Special Judge who by orders dated 12.10.2010 5 Cri.Appln. No.1405.10 granted bail to each of them. The Union of India has challenged those orders and seeks cancellation of bail. 4. 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 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 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, 25 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 contended on behalf of the prosecution that the learned trial 6 Cri.Appln. No.1405.10 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. 5. 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, 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 Menon & 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 7 Cri.Appln. No.1405.10 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). Learned counsel for accused no.5 also contended that accused no.5 was having a certificate of import and export from the Ministry of Commerce and he has also license to sell, stock, exhibit or offer for sale or distribution of certain medicines from the licensing authority, Food and Drug Administration, Maharashtra State and, therefore, the provisions of NDPS Act would not be applicable to him. Learned counsel also contended that statement of accused no.5 under section 67 of the NDPS Act was recorded after his arrest and, therefore, it cannot be given much importance and further this statement was retracted by him later on before the Metropolitan Magistrate. 6. At the outset it may be stated that I had occassion to deal with similar matter in Criminal Application No.3618 of 2010 Union of India Vs. Ravindran Krarapaya @ Ravi & Ors. and Criminal Application No.5640 of 2009 Union of India vs. Xie Jing Feng @ Richard & Anr. in which 7 Kgs. of Methampethamine was alleged to be recovered from the accused persons. Same arguments were also advanced by both 8 Cri.Appln. No.1405.10 the parties in those applications which were filed by the Union of India for cancellation of bail. I have dealt with the related provisions of NDPS Act and Rules in depth in the judgment dated 19th November,2010. Later on the reasons given in the said judgment were adopted in toto by another learned Judge of this court in Criminal Application no.4824 of 2010 Union of India Vs. Riyaz Razak Menon & Ors. which was decided on 10th January, 2011 (Coram: R.C.Chavan, J.). In fact to a great extent these applications are covered by the earlier judgment dated 19th November, 2010 but it would be useful to deal with the legal position again as some more points are raised in these matters. 7. 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 9 Cri.Appln. No.1405.10 Government by notification in the Official Gazette and similarly, clause (xxiiia) provides that small quantity, in relation to narcotic drugs and psychotropic substances, means 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. 8. 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, 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:” 10 Cri.Appln. No.1405.10 9. 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. 10. 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 11 Cri.Appln. No.1405.10 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: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” 11. 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 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, 12 Cri.Appln. No.1405.10 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 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 13 Cri.Appln. No.1405.10 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 prove circumstances and the facts which would bring his case within the exception. 12. In the present case prima facie it appears that accused nos.1, 2 and 3 had brought 25 Kgs. of Methampethamine from Punjab to Bombay and they were intercepted when they gave delivery of the same to accused no.4, Veer Bahadur Singh – Taxi Driver, who had come to receive the consignment for and on behalf of accused no.5 – Anil Kumar Menon. Accused nos.1 to 3 did not claim that they had any license or authorisation for possession or inter-state transport from Punjab to Maharashtra. Accused no.4 also does not claim that he had any license or authorisation to take delivery of Methampethamine. According to him he was innocent taxi driver and was not knowing what were contents of the consignment. From his statement under section 67 and from the arguments advanced on his behalf by learned counsel it appears that he was regular taxi driver for accused nos.5 and 6 and accused no.5 had asked him to collect the said consignment and, therefore, he had accepted the said consignment without any knowledge of the same. Accused no.5 claims that he has a certificate for export and import and also licence from the Food and Drug Administration, Maharashtra Government for 14 Cri.Appln. No.1405.10 sale, storage and manufacture of certain medicines. He has also produced the copies of relevant certificate and licence. The certificate of Importer-Exporter Code (IEC) appears to have been issued by the Ministry of Commerce, Government of India on 1.11.2004 in favour of Anjali Enterprises situated at Rose Villa, Christain Street, Madh Island, Mumbai, Maharashtra with branch office at Andheri (East). This certificate nowhere indicates that the certificate of import or export was issued to him for the purpose of possession, transportation, inter-state import or export or export to foriegn countries of any psychotropic substance and particularly Methampethamine. It appears to be general Importer Exporter Code, which authorises business of export and import. Naturally, this certificate is of no use when he wants to deal in psychotropic substance like Methampethamine. Next is licence in form 20-D issued by the Licensing Authority, Food and Drug Administration, Maharashtra State. This licence is issued on 31st August, 2004 in favour of Anjali Enterprises. It shows that by this licence Anjali Enterprises has licence to sell, stock or exhibit or offer to sell or distribute by wholesale drugs other than those specified in Schedule C, C(1) or X, subject to the conditions specified in the licence and subject to provisions of Drugs and Cosmetics Act, 1940 and Rules thereunder. Methampethamine is also a drug in Schedule “X” under Drug and Cosmetics Act. The main argument advanced by learned counsel for the accused against application of NDPS Act to 15 Cri.Appln. No.1405.10 Methampethamine is that it is shown in schedule “X” of the Drug and Cosmetics Act but is not shown in schedule-I of the NDPS Rules and, therefore, NDPS Act is not applicable. The above referred licence issued by the Food and Drug Administration gives licence to Anjali Enterprises for certain operations in respect of drugs other than those specified in Schedule C, C(1) and X and, therefore, this licence does not authorise Anjali Enterprises or accused no.5 to sell, stock, distribute, transport etc. any drug and particularly Methampethamine which is shown in schedule “X”. In view of the above the Importer-Exporter Code and the licence issued by the Food and Drug Administration, Maharashtra State do not provide any authority to accused no.5 to deal with or possess psychotropic substance i.e. Methampethamine. These certificate and licence are of no use in this case. 13. After the claim of accused no.5 to possess Methampethamine on the basis of above referred certificate of Importer Exporter Code or license issued by Food and Drug Administration, Maharashtra State is rejected, there is no document on record produced by any of the accused persons to bring their case within the scope and ambit of the exception to Section 8(c). Therefore, consideration of rules framed under NDPS Act would in fact be unnecessary. However, because the learned Counsel for the respondent/accused have relied on certain authorities, contending that as Methamphetamine is not shown in the 16 Cri.Appln. No.1405.10 Schedule I to the Rules, 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. 14. Section 76(1) of the Act provides that subject to other provisions of the act, the Central 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 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 17 Cri.Appln. No.1405.10 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. 15. 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 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