1 CAOR-4763.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4763 OF 2010 Union of India .... Applicant Vs. Narayan Bhai Mangaldas Patel & Anr. .... Respondents WITH CRIMINAL APPLICATION NO.4762 OF 2010 Union of India .... Applicant Vs. Bipin Parekh & Anr. .... Respondents AND CRIMINAL APPLICATION NO.4825 OF 2010 Union of India .... Applicant Vs. Motilal Nagan Bardwal & Anr. .... Respondents Shri F.E. Saldanha, Special PP for the Applicant in all Applications. Shri Anil Lalla for Respondent No.1 in all Applications. Ms P.P. Shinde, APP, for Respondent No.2-State. 2 CAOR-4763.10 CORAM: R.C. CHAVAN, J. RESERVED ON: APRIL 06, 2011 PRONOUNCED ON: APRIL 18, 2011 ORDER: 1. This order disposes of three applications for cancellation of bail granted to the first respondent in NDPS Special Case No.33 of 2009 by the learned Special Judge for NDPS Cases at Thane. 2. The respondents have been arrayed as accused Nos.1 to 3 in the criminal complaint filed by Shri A.H. Raja, Intelligence Officer of the Directorate of Revenue Intelligence (for short, DRI ), Mumbai before the Special Judge for the offences punishable under Sections 29, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act ). The DRI received intelligence that Diazepam was being clandestinely removed from the factory of respondent Narayan Patel. The officers intercepted a tempo bearing No.MH-05-S-3142 in which respondent Motilal was found travelling along with others. Three HDPE bags containing about 90 kgs. Of Diazepam were 3 CAOR-4763.10 seized from the possession of Motital from the said tempo. Samples were drawn and necessary panchnamas were also drawn up. 3. The officers then went to the factory of Narayan Patel on 28-6-2009 at about 5:30 p.m.. Narayan Patel reportedly told them that he had manufactured about 300 kgs. Of Diazepam, out of which 100 kgs. had been sold by him to respondent Bipin Parekh and 90 kgs. had been sold to respondent Motilal. The remaining 104.350 kgs. of Diazepam in the factory premises was seized and sealed by drawing requisite panchnamas. 126.500 kgs. of anthranil powder was also recovered and seized from the factory premises. Since 100 kgs. of Diazepam had been allegedly sold to respondent Bipin Parekh, the officers searched the premises of Bipin Parekh. Bipin Parekh had booked two consignments of 70 kgs. and 30 kgs. of Diazepam to Rao Poultry Farm at Sidhipet and Godavarikhani in Andhra Pradesh with VRL Logistics Limited, which had issued the requisite lorry receipts. The consignments which had been handed over to VRL Logistics were called back from the transporter and were produced in the office of the DRI on 13-7-2009 and were seized. Necessary samples had been 4 CAOR-4763.10 drawn and the material was found to be Diazepam. The other details pertaining to the seizure and investigation are not relevant for the purpose of deciding these applications. 4. Narayan Patel was found to have the requisite licence for manufacture of Diazepam in his factory by name M/s. Sharda Chemicals. Bipin Parekh had also the requisite licence to sell Diazepam. 5. The three accused persons applied before the learned Special Judge for grant of bail and after elaborately considering the relevant provisions and the facts of the case, the learned Special Judge observed that It was well settled that psychotropic substance is included in the Schedule to the Act but it is not included in the Schedule-I to the Rules, then the operations covered by Section 8 cannot be said to be contravening the provisions of the Act and therefore, punishable , while admitting Narayan Patel to bail. Similar orders were passed admitting the other two respondents to bail. 6. The DRI has questioned these orders by filing the present applications. The DRI 5 CAOR-4763.10 contends that the learned Judge erred in concluding that Diazepam, not being covered under Schedule-I to the NDPS Rules, could be possessed by any person or that possession of such substance could be regulated only by the provisions of the Drugs and Cosmetics Act, 1940. 7. These applications for cancellation of bail were vehemently opposed on behalf of the respondents who submitted that, first, the question is already pending before the Supreme Court and this Court had in a number of similar applications deferred the hearing by six months since the question was before the Supreme Court. Secondly, it was submitted that once bail is granted, its cancellation could be permitted only if by reason of supervening circumstances it could no longer be conducive for a fair trial to allow the accused to retain his freedom during the trial. It was submitted that no such supervening circumstances exit. 8. The question as to whether the possession of Diazepam could be covered by the provisions of the Drugs and Cosmetics Act only because of non-inclusion of Diazepam in Schedule-I to the NDPS Rules had been 6 CAOR-4763.10 considered by me on 10-1-2011 while deciding an application for cancellation of bail being Criminal Application No.4824 of 2010 (Union of India v. Riyaz Memon & Ors.). A learned single Judge (Shri Justice J.H. Bhatia) of this Court in his judgment in Union of India v. Ravindran Krarapaya @ Ravi & Ors. (Criminal Application No.3618 of 2010), delivered on 19-11-2010, had also held in relation to Methamphetamine, another psychotropic substance, that in spite of its non-inclusion in Schedule-I to the NDPS Rules, penal provisions of Section 22 of the NDPS Act would be attracted. While doing so, the learned Judge had also considered the judgement of the Supreme Court in State of Uttaranchal v. Rajesh Kumar Gupta, reported in 2007 (1) SCC 355. Just like Methamphetamine, Diazepam is not included in Schedule-I to the NDPS Rules, though Diazepam is at serial No.43 in the Schedule to the NDPS Act. Apart from the reasons given by the learned single Judge in his judgment dated 19-11-2010 on Criminal Application No.3618 of 2010 (supra), I had observed, while deciding Criminal Application No.4824 of 2010 (supra) as under: It has to be mentioned that the arguments advanced on behalf of the respondents would render the entry 7 CAOR-4763.10 of Alprazolam and Diazepam in the Schedule to the Act nugatory. Reference to Section 8 of the NDPS Act would make it clear that there is a prohibition contained in the NDPS Act itself for production, manufacture, possession, sale, purchase, transport, use and consumption of any narcotic drug or psychotropic substance. Psychotropic substance has been defined under Clause (xxiii) of Section 2 of the NDPS Act as those specified in the Schedule and the Schedule obviously means the Schedule to the NDPS Act and not the Schedule to the NDPS Rules. Therefore, the argument that because Alprazolam and Diazepam did not find mention in the Schedule to the NDPS Rules, they can be possessed with impunity, would render the prohibition contained in Section 8 of the NDPS Act nugatory. In view of this, adopting the reasonings in the judgment in Union of India v. Ravindran Krarapaya @ Ravi & Ors. (supra), it has to be held that the learned Special Judge erred in concluding that such possession would not disentitle the respondents to bail. 8. Inclusion of Alprazolam and Diazepam in Schedule-H to the Drugs and Cosmetics Rules does not mean that possession of those substances would cease to be an offence under the NDPS Act. Section 8 itself carves out an exception and provides that such production, manufacture or possession is not prohibited except for medical or scientific purpose 8 CAOR-4763.10 and in the manner and to the extent provided by the provisions of the NDPS Act or the Rules and also in accordance with the terms of licence. Therefore, it would be for the possessor to show that the possession was for medical or scientific purpose and was in accordance with the requisite licence. There is no reason to take a different view now. 9. The learned Special PP for the Union of India submitted that after my order dated 10-1-2011 on Criminal Application No.4824 of 2010, the learned single Judge (Shri Justice J.H. Bhatia) had another occasion to decide similar question while disposing of Criminal Application No.1405 of 2010 (Union of India v. Jagdish Singh and Anr.) and similar other applications and the learned Judge had held that bail granted on an erroneous premise that offence punishable under the NDPS Act was not made out was liable to be cancelled and had cancelled the bail granted to the respondents therein. While doing so, the learned Judge had also referred to the judgment of the Supreme Court in D. Ramkrishna v. Intelligence Officer, NCB, reported in 2009 AIR SCW 4772 where the 9 CAOR-4763.10 Supreme Court had distinguished the facts in the case of Rajesh Kumar Gupta (supra). 10. The Special PP for the applicant also drew my attention to a judgment of a Three Judge Bench of the Supreme Court in Collector of Customs, New Delhi v. Ahmadalieva Nodira, reported in (2004) 3 SCC 549 where the Supreme had considered a similar case of possession of huge quantity of Diazepam tablets. The accused had been ordered to be released on bail by the Delhi High Court. The Supreme Court held that it was not a case where it could be reasonably believed that the accused was not guilty of the alleged offence and, therefore, the grant of bail to the accused was not called for. The Supreme Court, therefore, set aside the order granting bail. 11. The learned counsel for the respondents submitted that the matter is already receiving the attention of the Supreme Court and in fact this Court had simply adjourned the hearing of similar applications for cancellation of bail in the past because the matter has been referred to a larger Bench by the Supreme Court. When another set of such applications was adjourned, none was present on 10 CAOR-4763.10 behalf of the NCB. Such is not the present case. Further, matters have been pending before the Supreme Court for constitution of a larger Bench for quite some time and the Supreme Court itself by order dated 9-3-2011 had noticed that cases of bail involving the point involved in this case were coming to the Supreme Court frequently and therefore it was desirable that the matter pending before the Three Judge Bench should be heard and disposed of at an early date to settle the issue conclusively. There is no point in adjourning these matters any further awaiting judgment of the Supreme Court. The learned counsel for the respondents next submitted that the order passed by this Court cancelling the bail granted to Riyaz Memon has also been challenged in the Supreme Court and the Supreme Court has stayed that order and such other orders passed by this Court cancelling bail. It does not follow that therefore this Court may not be considering applications for cancellation of bail, since as yet there is no authoritative to pronouncement from the Supreme Court that the view taken by this Court is not correct. Therefore, there is no warrant for keeping the matters pending. 12. The learned counsel for the 11 CAOR-4763.10 respondents submitted that respondents Narayan Patel and Bipin Parekh hold licences respectively for manufacture and sale of drugs (particularly Diazepam) under the Drugs and Cosmetics Act and therefore their cases have to be distinguished from that of Riyaz Memon whose bail was cancelled in the past or that of respondent Motilal, who does not have such a licence. Therefore, according to him, all that the respondents Narayan Patel or Bipin Parekh could be accused of is breach of conditions of the licence issued under the Drugs and Cosmetics Act and they could not be held to have committed any offence punishable under the NDPS Act. 13. The learned Special PP rightly pointed out that breach of conditions of licence issued to the two respondents may expose them to action under the Drugs and Cosmetics Act. But this does not mean that no other penal action could be taken against them if the same act constituted an offence under another law. He submitted that if the arguments of the learned counsel for the respondents were to be accepted, manufacturers of psychotropic substance like Diazepam, or a chemist who has the licence to sell Diazepam, would merrily 12 CAOR-4763.10 sell the drug in say a factory outlet or over the counter and claim that they should be dealt with only for violation of the licence and thus virtually, opening up free trade of a psychotropic substance, till the prosecuting agencies successfully chase him and lead him to conviction. The learned Special PP is right in his submissions. It is this hyper-technical approach which enables persons like the respondents who let loose psychotropic substances, which disable a big chunk of population by addicting them to those substances, to evade action by raising such technical bogies. This creates an impression in the ordinary man that justice is really blind and Courts refuse to look at the reality of life which is visible to a common man. 14. In this case, it is not that Narayan Patel sold huge quantity of Diazepam to a chemist alone. He also sold it to Motilal who had no such licence. Obviously, this was meant for being misused. Further, Bipin Parekh as licensed chemist had not sold Diazepam tablets in terms of his licence to needy patients but sent huge consignments to a party in Andhra Pradesh without verifying whether the party could receive such a consignment or had licence 13 CAOR-4763.10 to deal with the tablets being sent. This is apart from the fact that in the statements of the respondents recorded by the DRI, they had also stated that Narayan Patel had been selling to Bipin Parekh Diazepam by issuing invoices and challans in the names of different drugs and receiving the difference in price of Diazepam and the drugs shown on the challans in cash. 15. In view of this, it has to be held that the learned Special Judge erred in concluding that he could reasonably believe that the respondents were not guilty of the offences punishable under the NDPS Act. Therefore, he could not have admitted the respondents to bail. The applications are, therefore, allowed. The impugned orders dated 22-7-2010, 26-7-2010 and 23-7-2010 in NDPS Special Case No.33 of 2009 respectively before him are set aside and the respondents are directed to surrender to the authorities within a period of eight weeks, so as to leave sufficient room to the respondents to approach the Supreme Court. The applications accordingly stand disposed of. Sd/- (R.C. CHAVAN, J.)