IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3468 of 2010 NISHAR HUSSAIN DAR SON OF MD. ABDULLAH, RESIDENT OF D-4, 2ND FLOOR SATBARI, NEW DELHI. Versus THE UNION OF INDIA THROUGH D.R.I. ---- FOR THE PETITIONER : MR. MUKESH KUMAR, ADVOCATE FOR THE UNION OF INDIA : MR. GOPESH KUMAR, ADVOCATE 3 24.02.2010 Heard learned counsels for the petitioner and the Union of India. A counter affidavit has been filed on behalf of the Union of India after serving copy of the same on the counsel appearing for the petitioner. Petitioner had earlier moved this Court for grant of bail in connection with Special Case No. C2A4 of 2008 registered under sections 8, 22, 22A & 29 of the Narcotic Drugs and Psychotropic Substance Act (N.D.P.S. Act) in Cr. Misc. No. 33287 of 2009, which was rejected as per the order dated 16.10.2009, as contained in Annexure-1 to this application. This is his second attempt. Learned counsel appearing for the petitioner while pressing the application submits that fresh grounds are available for consideration. He submits that the very foundation for initiation of the present criminal proceeding is bad in law as the proceeding was initiated on the basis of the incomplete report, and as such, the proceeding could not have been proceeded with. He further submits that there is other legal lacuna in - 2 - constitution of the raiding party which raided the premises of M/s A.R. Chemicals as the said raiding party was constituted by the Investigating Officer himself without obtaining the appropriate sanction/ permission/approval of the higher officials, and as such, the very constitution of the raiding party which raided the premises in question is invalid in law. Learned counsel further contends that the aforesaid raiding party seized certain medicines in the form of tablets and sent the same for its chemical examination, however from the forwarding letter it could not be said with certainty as to which is the actual sample which was seized from the premises and sent for chemical examination and which sample was receipted for chemical examination, and therefore, the chemical report available on the record of the case becomes very doubtful. Learned counsel also contents that the evidence/material which is being used against the petitioner for his statement under section 67 of the aforesaid Act cannot sustain in the eye of law for the reason that the petitioner was under arrest at the material time. Learned counsel further avers that the offence is alleged to have been committed by the Company and there is no allegation to the effect that the petitioner was a Director of the said Company. As a matter of fact, the petitioner was a promoter, and - 3 - therefore, he cannot be implicated in this case. Besides the above, it is submitted that the A.R. Chemicals which is said to have committed the offence does not manufacture the tablets, rather it manufactures the material in bulk which is used for preparation of tablets, and as such, the allegation that A.R. Chemicals was indulged in preparing tablets is absolutely baseless and incorrect. Learned counsel also submits that apart from the fact that the investigating officer himself had constituted the raiding team, the other serious defect in law is that it included incompetent persons who would not have been included for raiding the premises in question, and as such, the outcome of such raid cannot sustain in the eye of law. In the above circumstances, learned counsel submits that the petitioner may be granted bail. Learned counsel appearing for the Union of India, on the other hand, submits that the involvement of the petitioner is very much apparent which would be appearing on perusal of the mutual agreement with the co-accused Rajiv Shekhar Jha, as contained in Annexure-L to the counter affidavit. In addition to the above, it is submitted that the petitioner was a joint account holder of the Company which would be appearing on perusal of the account opening form - 4 - (Annexure-M) followed by the statement of account. It is further submitted that the aforesaid co-accused Rajiv Shekhar Jha with whom this petitioner had a mutual agreement had moved this Court for grant of bail in Cr. Misc. No. 803 of 2009, which was rejected after detailed consideration. Apart from that, it is also submitted that the bail application of the co-accused R.K. Gupta was also considered by this Court in Cr. Misc. No. 7143 of 2009 and upon consideration the same was rejected by order dated 15.02.2010. In the above circumstances, learned counsel submits that this application also deserves to be rejected for want of any valid material warranting reconsideration of the prayer for bail. Considering the submissions of the parties and in the facts and circumstances of the present case, I am not inclined to grant bail to the petitioner. His prayer for bail is, accordingly, rejected. This application stands disposed of. Manish/- ( Shailesh Kumar Sinha,J.)