THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.13301 of 2010 (Dated : 07-03-2011) Between: Imran Ahmed Khan @ Imran Khan R/o flat No.106,Amar Jyothi Colony, New Bownenpally, Hyderaabd. …Petitioner A n d State of A.P. rep by its Intelligence Officer, Narcotic Control Bureau, RIC, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.13301 of 2010 ORDER: The petitioner herein is A-1 in Crime No.NCBF No.48/1/01/2009/NCB/RIC/Hyderabad registered for the offence under Section 8( C) read with Sections 22, 23, 25, 27A, 29 & 38 of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’, for brevity) punishable under Sections 22(C ),23, 25, 27A, 29 & 38 of the NDPS Act. 2. The petitioner joined as an Agent in M/s.Blue Stone IT Services near Nagarjuna Circle, Panjagutta, Hyderabad. The said company deals in pharmaceutical products. His nature of job was to generate sales from overseas customers over telephone. He left M/s. Blue Stone IT Services and joined in M/s. Web Plant Solutions, Secunderabad. His nature of job in M/s.Web Plant Solutions is similar to that of his job in M/s.Blue Stone IT Services. While working in M/s.Blue Stone IT Services, he came into contact with Bhavesh Patel, who was one of the Managing Directors of the said company. Though, he left M/s. Blue Stone IT Services, his association with Bhavesh Patel continued. The said Bhavesh Patel came out from M/s.Blue Stone IT Services and opened a new company in the name and style of `Dharpana & Dharsana IT Solutions’. Bhavesh Patel persuaded the petitioner to have his own business. The petitioner succumbed to the pursuations and opened his own business in the name and style ‘M/s.Limra IT Solutions’ in September, 2007. The registered address of M/s.Limra IT Solutions is 5-1-88/89, 2nd floor, Old-Ghansi Mandi, R.P.Road, Secunderabad. He commenced his business of running call centre in the name and style M/s.Limra IT Solutions. He employed about ten persons. The petitioner and Bhavesh Patel used to make business visits to Mumbai very frequently. During one of such visits, Bhavesh Patel introduced the petitioner to Sriram Sawalram Patel @ Ram Patel @ Mahipal Singh. Bhavesh Patel and Sriram Sawalram Patel @ Ram Patel @ Mahipal Singh made a proposal to the petitioner to have their stocks placed in his premises on rental basis and thereupon, despatching the same by way of shipment to his clients through Bhavesh Patel. The medicines and the drugs were sent by Sriram Sawalram Patel @ Ram Patel @ Mahipal Singh to Hyderabad by M/s. Omer Travels in the name of Matrix Pharma, Panecea Pharma, Micro Pharma and Lotus Pharma etc. The petitioner used to collect the consignment from the transporter and stock at his Godown No.199, Vasavi Nagar, 1st Floor, Kharkana Bazar, Secunderabad. The petitioner used to dispatch the stock to his clients abroad. During the course of business, he came into contact with S.Venkatesh and he introduced S.Venkatesh to Sriram Sawalram Patel @ Ram Patel @ Mahipal Singh. Thus, he came to be involved in psychotropic substances trafficking. He used to get 30% of sales value as commission for his services by means of wire transfer from abroad. 3. On 31.8.2009, the Intelligence Officer, NCB, RIC, Hyderabad received credible information with regard to the involvement of the petitioner in psychotropic substances trafficking. He along with his staff accompanied by mediators surprised the Call Centre of the petitioner and also the godown No.119 and seized various items containing psychotropic substances. Cash of Rs. 10,86,000/- also came to be seized during the search. Various items seized from the premises of the petitioner have been detailed in Annexure to the complaint. There are about 30 items mentioned in the annexure. Items 1 to 17 are:- Sl.No. Name of the Tablet Salt Quantity of Tablets 1. TENAM SR 1.5 ALPRAZOLAM 1.5 MG EXCIPIENTS Q S 4400 P-1 2. PHENTERMINE 37.5 MG PHENTERMINE 37.5 MG 10347 P-2 3. ZOLFORD 10 MG ZOLPIDEM 10 MG MB 21600 P-3 4. ALPRA QUIL 0.5 ALPRAZOLAM 1.P 0.5 MG 2880 P-4 5. ATIPAM-1 LORAZEPAM B.P 1 MG 1430 P-5 6. ATIPAM-2 LORAZEPAM 2 MG 22680 P-6 7. ZOLCARE-10 ZOLPIDEM 10 MG 38410 P-7 8. NOTENSE 1 MG ALPRAZOLAM 1.P 1 MG 5700 P-8 9. OXYCO-DONE OXYCODONE 40 MG HYDROCHLORIDE & ACETAMINOPHEN USP 325 MG 2550 P-9 10. ZOLT ZOLPIDEM TARTRATE 10 MG 1640 P- 10 11. ZOLAB ZOLPIDEM TARTRATE 10 MG 870 P- 11 12. CALM-10 DIAZEPAM 10 MG 2440 P- 12 13. T-PAM-10 DIAZEPAM 1P 10 MG 1410 P- 13 14. ZEPOSE 10 DIAZEPAM 1P 10 MG 980 P- 14 15. ALPRAZOLAM (Loose) - 0.216KG P- 15 16. HYDROCODONE (Loose) - 16.048 Kg P- 16 17. DIAZE 100 DIAZEPAM 10 MG 1400 P- 17 The statement of the petitioner under Section 67 of the NDPS Act also came to be recorded by the designated officer in accordance with the provisions of the NDPS Act and the rules framed thereunder. While effecting seizure of the various items, samples of items also came to be collected for the purpose of getting them tested with regard to the contents of psychotropic substances. The Drug Control Administration analysed nine samples of the total 30 and fond them of standard quality. The remaining 21 samples had been returned due to non availability of standards with them. The remaining samples are forwarded to the Central Drug Test Laboratory, Government of India, Egmore, Chennai. However, Central Drug Test Laboratory could not analyse the samples due to lack of standard samples. The 21 samples have been sent to Central Forensic Sciences Laboratory, Ramanthapur, Hyderabad (“CFSL”) on 18.2.2010 for chemical analysis. During the course of investigation, data seized from the premises of the petitioner came to be retrieved and it was found that the petitioner dealt business with the clients numbering thousands, who are situated in abroad. For better appreciation, I may refer the relevant portion of the complaint, which reads as hereunder:- “15. Later on Mr. Imran Ahmed Khan @ Imran Khan had entered into service agreement with M/s Echarge, Box570663, Las Vegas, Nevada, 89157, USA for getting the services of Internet Payment System. Imran Ahmed Khan @ Imran Khan (A-1) has also brought Broad Band width M/s Pioneer Elabs Limited, Pioneer Towers, 7th Floor, Madhapur, Hitech City, Hyderabad-81. Imran Ahmed Khan @ Imran Khan(A-10) has registered his firm with Labour Department of Government of AP, as commercial establishment and declared his nature of business as TELE MARKETTTING. Imran Ahmed Khan @ Imran Khan (A-1) has also obtained trade licence from Municipal Corporation of Hyderabad and declared his business as online job work and telemarketing. Imran Ahmed Khan @ Imran Khan (A-1) has entered into a contract of business with Call Centre Data Processing to realize the sale proceeds through bank wire in favour of Limra IT Solutions, payable at 5-1-88/89, Secunderabad. 16. Copies of Air bill given by the Courier service provider Fexed2Day at the time of export of the drugs abroad with scribbling on them “phen-60 pills (Done)” were available at the office of the M/s Limra I.T.Solutions indicating the drugs (Psychotropic Substance) Phentermine was being exported through courier agency Fedex 2Day. 17. The gist of report submitted by GEQD in respect of data analyzed from the computer/Laptop Hard disks of Imran Ahmed Khan , S.Venkatesh and Sriram Sawalram Patel @ Ram Patel @ Mahipal Singh are as under: 1. Hard Disk Model No.ST3160815 ASS/No.5rX7GR00 marked as Q1 2. Hard Disk Model No.HD502H1, S/No.S1 VZJ1NQB01533 marked as Q2 3. Hard Disk Model No.ST3500418AS, S/No.5VMOGC1D marked as Q3 4. Hard Disk Model No.HDP725032GLA, 380,S/No.RC1R71DJ marked as Q4. 5. Laptop HD Model No.ST980411ASG, S/No.5TF0264B marked as Q5 6. Hard Disk Model No.WD1600AABS-00PRAO, S/No.WCAP9A216693 marked as Q6. 7. Hard Disk Model No.st3250310 as S/No.6RYGWEQW marked as Q7 8. Laptop Model No.MHZ2160BH S/No.K611T932CUDL marked as Q8 9. USB Adapters make MAGIC JACK marked as Q9 & Q 10. 18 (A) The data obtained (as part of the GEQD report as exhibit Q- 1) from HDD No.ST 3160815 AS show that Imran Ahmed Khan (A-1) is keeping the names and address of the several thousand customers abroad along with their choice purchase of medicines including Psychotropic substances. The data obtained (as part of the GEQD report as exhibit Q-3) from the HDD No.St 3500418 of Imran Ahmed Khan @ Imran Khan (A-1) show that Imran Ahmed Khan @ Imran Khan (A-1) has been indulging in the illicit export of Psychotropic substances. A file with name `orders’ contain the details of the customers from abroad, along with the orders they have placed for the drugs including Psychotropic substances. A file with name `Lim_Chnfeb11” contain details of name, address, quantity and products sold includes psychotropic substances `Alprazolam’. A file with name SMT-8 Tracking contain the details of Psychotropic substances like Phentermine, Hydrocodone sold and tracking number of the shipment etc. A file with name `new leads’ contain the details of customer name, address, height, weight, DOB, their credit card details, quantity ordered, price, billing date etc. Apart from this sample reference, there is a voluminous details of the sales made by Imran Ahmed Khan @ Imran Khan (A-1) is available, which is given as annexure to this complaint”. 4. The petitioner earlier filed Criminal Petition Nos.10763 of 209 and 4436 of 2010 under Section 437 & 439 Cr.P.C seeking bail. The said applications came to be dismissed on 18.01.2010 and 11.06.2010 respectively. The relevant portion of the order dated 11.06.2010 reads as hereunder:- “ But, there is no dispute that the petitioner has no licence for processing or dealing in such substances and the fact that under the guise of running a software enterprise (call centre), he was dealing in such kind of material in huge quantity running into crores of rupees would show the magnitude of the mischief he was committing and its impact that could have on the society. In the circumstances, it is not at all a fit case for releasing the petitioner on bail”. 5. This is the 3rd bail application filed by the petitioner under Sections 437 and 439 Cr.P.C seeking for bail. 6. Heard Sri P.Gangaiah Naidu, learned senior counsel appearing for the petitioner and Sri V.Gopalakrishna Gokhaley, Special Public Prosecutor for NCB appearing for the respondent. 7. Learned senior counsel submits that the petitioner has been in judicial custody since 31.8.2009 and there is no much progress in the trial of the case and there is likelihood of the trial being not concluded within reasonable time and therefore, the petitioner deserves for grant of bail. A further submission has been made that the petitioner made efforts by filing Crl.M.P.No.1012 of 2010 to get the samples of contraband tested by Forensic Science Laboratory, Kalina, Vidgyanagari Hans Bhugra Marg, Santacruz, Mumbai East, Maharastra for qualitative and quantitative analysis and his application came to be dismissed by the learned Metropolitan Sessions Judge, Hyderabad. The report of CFSL is awaited from 18.2.2010; in which case, it can reasonably be inferred that there is no likelihood of the report coming forth from CFSL in the near future. Learned senior counsel also submits that the substances found in the items allegedly seized from the premises of the petitioner falls within the ambit of Drugs and Cosmetics Act in which case they cannot be called as psychotropic substances and they are very much available with Druggists and Chemists. He would also contend that even according to the Annexure-1 and Mahazar, Sl.Nos.1 to 17 are only drugs containing psychotropic substance and other drugs do not contain any prohibited substance and therefore, in respect of those items, there is no contravention of any of the provisions of law. So far as serial Nos. 1 to 17 are concerned, they are commonly used drugs which are available in the open market and the percentage of psychotropic substance in those tablets is very small, i.e., 0.5% only and therefore possession of the said drugs does not amount to contravention of any of the provisions of law under the NDPS Act. 8. Learned senior counsel further submits that in similar circumstances, the Special Court for Greater Mumbai considered the bail application of the petitioner in respect of some other crime and granted interim bail and therefore, the petitioner herein also deserves for grant of bail in the present crime. With these submissions, learned senior counsel urges that the petitioner deserves for grant of bail. 9. Learned Special Public Prosecutor appearing for the respondent submits that the information retrieved from the Hard disk seized from the premises of the petitioner indicates that the petitioner did business with the clients abroad running into crores of rupees and his business is relatable to psychotropic substances. In a way, his contention is items 1 to 17 seized from the possession of the petitioner contained psychotropic substance, which itself is sufficient to infer that he has been doing business in contravention of the provisions of the NDPS Act and rules framed thereunder. He would also contend that it is not just the content of the psychotropic substance in each of the drugs seized from the possession of the petitioner but the total quantity of the drugs, which came to be seized from the possession of the petitioner is relevant to decide whether he is in possession of commercial quantity. 10. The overriding considerations in granting bail are: 1) The nature and gravity of the circumstances in which the offence is committed. 2) The position and status of the accused with reference to the victim and the witness; 3) The likelihood of the accused fleeing from justice; or of repeating the offence, or of jeopardizing his own life being faced with grim prospect of possible conviction; 4) The history of the case as well as of its investigation and other relevant grounds; 5) The likelihood of the accused fleeing from justice. 6) The two paramount considerations are likelihood of the accused fleeing from justice and his tampering with prosecution evidence, which relate to ensuing a fair trial and it is essential that due and proper weight should be bestowed on these two factors apart from others. 11. It is also trite to note that Section 37 of the N.D.P.S.Act, which reads as hereunder:- “37:Offences to be cognizable and non-bailable Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under (Section 19) or (Section 24) or (Section 27-A) and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitation on granting of bail specified in Cl. (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on grant of bail.]” 12. In regard to cases where earlier bail application has been rejected, there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail application has been rejected and after such consideration, if the Court is of the opinion that bail has to be granted, then, the said Court will have to give specific reasons why in spite of such earlier rejection, subsequent application for bail should be granted. 13. The Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav[1] considered as to whether the delay in trial itself is a ground to grant bail to the accused. It has been held by the Supreme Court as hereunder:- “ In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.” 14. Under Section 67 of the NDPS Act, the empowering officer can call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any rule or order made thereunder. It is a matter of record that the statement of the petitioner has been recorded under Section 67 of the NDPS Act. The statement indicates that the petitioner has been resorting to trafficking of psychotropic substances. The Hard disk seized from the premises of the petitioner indicates that he has been dealing with several thousands of customers abroad and the quantum of business runs into several crores of rupees. Items 1 to 17 contain psychotropic substance. The statement of the petitioner recorded under Section 67 of the Act the details the way in which he has been doing business and the receiving commission at the rate of 30% of the value. 15. Such is the material available on record, I do not see any changed circumstances that enure to the benefit of the petitioner to renew his request for grant of bail after dismissal of his earlier applications. Therefore, I am of the view that the petitioner does not deserve for grant of bail. 16. Accordingly, the Criminal Petition is dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.07-03-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.13301 of 2010 DATED : 07-03-2011 [1] 2004 AIR SCW 1581