(1) CRI.APP. 2591.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2591 OF 2010 Murakonda Venkat Narayana, Age : 42 years, Occu.: Business, R/o. Row Houses, No.11, Muthiyan Residency, Deepnagar, Aurangabad (Presently in Judicial Custody at Central Prison, Harsul, Aurangabad) .. Applicant VERSUS The Union of India, Through The Commissioner of Central Excise and Customs, N-5, Town Centre, CIDCO, Aurangabad .. Respondent (Notices of respondent to be served on it's Standing Counsel at High Court Bench at Aurangabad) Mr. R.R. Mantri, Advocate for the Applicant Mr. Alok Sharma, Assistant Solicitor General for the respondent-Union of India Mr. B.J. Sonawane, APP for the State. ... CORAM : V.R. KINGAONKAR, J. DATED : 15TH NOVEMBER, 2010 ORAL ORDER:- 1. This is an Application for bail. 2. Heard learned Advocate for the applicant and learned Assistant Solicitor General and learned APP. (2) CRI.APP. 2591.2010 3. The chief bone of contention raised by the learned Advocate for the applicant is that the substance allegedly recovered from the premises of the factory would not fall within the penal provisions under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act"). It appears that the applicant owns a factory unit. Allegedly, powder of alprazolam and diazepam came to be seized from the premises of the factory. 4. The applicant’s contention is that he was not the manufacturer as the manufacturing business was entrusted to another personal by name Rahul Balkrushna Shedge. It is submitted by the learned Advocate for the applicant that the applicant Riyaz Razak Memon and said Rahul Balkrushna Shedge are granted bail in the context of Criminal Application no. 3196 of 2010 and therefore, the present applicant, on basis of parity, deserves liberty. 5. What appears from the record is that on basis of secrete information received by the Director of Revenue Intelligence, raids were (3) CRI.APP. 2591.2010 simultaneously conducted at three different places i.e. at Paithan (Aurangabad), Thane and Mumbai on 9.5.2009. During course of such separate raids, alprazolam powder was recovered from the manufacturing units. 6. Learned Assistant Solicitor General invited my attention to Rule 53 of the Narcotic Drugs and Psychotropic Substances Rules and also contended that having regard to the definition enumerated in section 2(23) of the N.D.P.S. Act, the seized substance is duly covered under the penal provisions thereof. He also would submit that the entries at serial number 30 and 43 of the Schedule appended to the Act also would cover the substance and, therefore, it has to be treated as “Psychotropic substance” for the purpose of penal action. In my opinion, the argument is not open for the present. 7. The Apex Court in "Ouseph Vs. State of Kerala 2004(4) SCC 446" and Hussain Vs. State of Kerala (2000) 8 SCC 139 considered the relevant provision while granting bail to the accused (4) CRI.APP. 2591.2010 persons. The Apex Court in "State of Uttaranchal Vs. Rajesh Kumar Gupta 2007(1) SCC 355" held that the powder of diazepam or alprazolam is not covered under the penal provisions of the N.D.P.S. Act. It is on basis of such dictums of the Apex Court that similarly placed accused were granted bail by the Sessions Court of Thane, and, therefore Criminal Application no. 3196 of 2010 was allowed by this Court. 8. Mr. Alok Sharma, learned Assistant Solicitor General, strenuously argued that now the bail orders are being challenged appropriately. He also would submit that the view taken in case of "State of Uttaranchal Vs. Rajesh Kumar Gupta" is under consideration on account of reference made to the larger Bench. Be that may as it is, the fact that similarly situated other accused persons involved in the same crime have been released, would entitle the present applicant to get identical treatment on basis of parity. Moreover, mere reference of the same issue to the larger Bench would not make the judgment of the Apex Court in (5) CRI.APP. 2591.2010 "State of Uttaranchal Vs. Rajesh Kumar Gupta" inapplicable at the present. 9. In this view of the matter, the present Application is also allowed in terms of order dated 30.9.2010 rendered in Criminal Application no. 3196 of 2010. Sd/- [V. R. KINGAONKAR, J.] arp