1 BA-692.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.692 OF 2011 {For cancellation of bail} Prakash Antony .... Applicant Vs. Rakshet Vinod Dalani & Anr. .... Respondents Ms Y.N. Katpitia for the NCB. Shri Atul Sarpande for Respondent No.1. Ms M.R. Tidke, APP, for Respondent No.2-State. CORAM: R.C. CHAVAN, J. DATED: SEPTEMBER 23, 2011 P.C: 1. This is an application for cancellation of bail granted by the learned Special Judge, Greater Mumbai vide the order dated 1-10-2010 passed below Exhibit-3 in NDPS Case No.130 of 2010. 2. The respondent is a Marketing Director of a company named M/s. Ukey Remedies Pvt. Ltd., manufacturing medicinal products including Diazepam. Intelligence Officers of the Narcotics Control Bureau (for short, NCB ) 2 BA-692.11 received information that 24 plastic drums containing granules were to be exported through M/s. Atul Shipping Agency and out of those 24 drums, the drums numbered as 3, 6, 9, 12, 18 and 24 were to contain Diazepam, a psychotropic substance. Accordingly, after complying with the necessary requirements, the 24 plastic drums destined for London by Kingfisher Flight No.IT-007, which were declared to be containing granules under the Airway Bill and booked through M/s. Atul Shipping Agency, were detained. Shri Ravi Nair, Director of M/s. Atul Shipping Agency, stated that they were only shippers of the consignment and were not aware of the contents of consignment. But the invoice mentioned that they contained neutral granules. He further stated that the consignment was being sent on behalf of and as per the direction of the respondent Rakshet Dalani. These drums, about which information had already been received, were isolated and opened and were found to contain white coloured small granules. Samples were taken and sent to the laboratories which reported that they contained Diazepam. After investigation, complaint was filed against the respondent. It was alleged that the accused along with Harish Madlani and Harish Shah and other known and unknown 3 BA-692.11 persons, between November 2009 and March 2010, had conspired to commit or abet in the commission of offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act ) and it was specifically alleged that they attempted to export out of India six plastic drums containing 25 kgs. of neutral granules containing five kgs. of Diazepam. The respondent was arrested on 11-3-2010. He applied for anticipatory bail and his bail application was allowed by the learned Special Judge by the order dated 1-10-2010. The learned Judge, on the basis of the material produced before him, came to the conclusion that it was clear that the respondent had knowingly mixed Diazepam in the neutral granules kept in the six drums and had given invoice of the same in the name of M/s. Kamal Trade Link, Nalasopara. However, the learned Judge held that the provisions of Section 8(c) of the NDPS Act were not applicable to the facts of the case, since Diazepam was not a substance included in Schedule-I to the NDPS Rules. He, therefore, allowed the bail application. The NCB has, by the present application, sought cancellation of the bail granted to the respondent. 4 BA-692.11 3. I have heard both the learned counsel for the NCB and the learned counsel for the respondent. The learned counsel for the respondent submitted that, on facts it could not be said that his client was in possession of six drums in which Diazepam was found mixed or was instrumental in exporting such six drums containing Diazepam to United Kingdom. He submitted that the respondent s company M/s. Ukey Remedies Pvt. Limited had a valid export licence and could have exported Diazepam on its own. According to him, except for the respondent s own statement there is nothing to show that he was a party to mixing of Diazepam in the neutral granules. The learned counsel for the NCB, on the other hand, submitted that, first, that the respondent s own servant Raghupat Singh had stated that, on 16-2-2010 the respondent had telephoned him and told him that one Harish Shah would come with some material and he should be permitted to mix the material in the six drums of granules. Accordingly, Harish Shah came and mixed the material brought by him in the six drums of granules. Raghupat Singh, who was serving as a Packer with the respondent, informed the respondent telephonically that the needful was done. Harish Kolte was also serving with the 5 BA-692.11 respondent as a Store Keeper and he claims that on 18-2-2010 he was told by his master, that is the respondent, that 24 drums of neutral granules were to be sent for export and asked him to prepare a bogus invoice warning him that the document should not reflect the name of the respondent s factory. Accordingly, Kolte claims to have prepared a bogus invoice in the name of M/s. Kamal Trade Link. The consignment itself was booked on behalf of Harish Madlani through M/s. Atul Shipping Agency of which Ravi Nair was the Director. The learned counsel for the NCB submitted that it is not open to the respondent to contend that the contraband was not mixed in his factory, or that no attempt was made by any of his employees under his direction to camouflage the consignment from his factory. She submitted that the statements of Raghupat and Kolte, who are the respondent s employees, would be sufficient to show the complicity of the respondent in the consignment seized. In any case, this is a matter of evidence which would be considered by the trial Judge at the trial. The learned counsel also pointed out that prima facie the trial Court has also come to the conclusion that the respondent had knowingly allowed Diazepam to be mixed in the neutral granules kept in the six 6 BA-692.11 drums and had given the invoice in the name of M/s. Kamal Trade Link. If this be so, it would not be open to the respondent to raise the question of his being in possession of the consignment or his being instrumental in causing the consignment to be placed for export, at this stage. 4. As to the observation of the learned Judge about the absence of reference to Diazepam in Schedule-I of the NDPS Rules and therefore coming to the conclusion that the provisions of the Drugs and Cosmetics Act would be applicable and not those of the NDPS Act, it would be sufficient to observe that this question was also considered by me while deciding Criminal Application No.4763 of 2010 {Union of India v. Narayan Bhai Mangaldas Patel & Anr.} with connected applications on 18-4-2011, following the Judgment delivered by Shri Justice J.H. Bhatia in Criminal Application No.3618 of 2010 {Union of India v. Ravindran Krarapaya @ Ravi & Ors.} with connected application, decided on 19-11-2010. For the reasons recorded in my said order, there is no need to take a different view of the matter now. Therefore, since I have already held that Diazepam too is covered by the 7 BA-692.11 provisions of the NDPS Act, the order of the learned Special Judge granting bail to the respondent cannot be sustained, since the learned Judge must be held to have erred in concluding that he reasonably believed that the respondent was not guilty of the offence punishable under the NDPS Act. The application is, therefore, allowed. The bail granted to the respondent by the order dated 1-10-2010 is cancelled. The respondent to surrender before the authorities within a period of eight weeks so as to leave sufficient room to the respondent to approach the Supreme Court, should he so desire. The application accordingly stands disposed of. (R.C. CHAVAN, J.)