1 ba 1152 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.1152 OF 2011 Union of India At the Instance of Senior Intelligence Officer, Directorate of Revenue Intelligence .. Applicant. -versus 1. Shri. Abhijeet Prabhakar Konduskar, 2. The State of Maharashtra .. Respondents. WITH CRIMINAL APPLICATION NO.1312 OF 2011 Union of India At the Instance of Senior Intelligence Officer, Directorate of Revenue Intelligence .. Applicant. -versus 1. Shri. Jayantilal Bhavarlal Kothari, 2. Shri. Nilesh Chatarlal Mehta, 3. Shri. Sandeep Nivrutti Ahire, 4. Shri. Bikash Ranjan Mandal, 5. The State of Maharashtra .. Respondents. Mr. Mr. F. E. Saldanha, Special Public Prosecutor for the Union of India – Applicants in both the matters. Mr. Amit Desai, Senior Counsel with Mr. Ayaz R. Khan with Mr. Gopal Shenoy, Smt. Anuradha K, and Ms. Zehra Charania, for 2 ba 1152 of 2011 the respondent No.1 in Criminal Application No.1312 of 2011. Mr. Mahesh Jethmalani, Senior Counsel, with Mr. Dinesh Tiwari, Swapnil Ambure, Mr. Pranil Sonawane, Mr. Amit Karva, for respondent No.1 in Criminal Application No.1152 of 2001 Mrs. S. D. Shinde, APP for the Respondent State in both the matters. CORAM: R.C. CHAVAN, J. DATED: 8th September, 2011 P.C. 1. These are two applications filed by the Union of India, Directorate of Revenue Intelligence, Mumbai Zonal Unit, for cancellation of bail granted to accused persons in N.D.P.S. Special R. A. No.59 of 2011. 2. The facts which led to the arrest of accused persons are as under:- Respondent Abhijit Konduskar is the Managing Director of Pharmaceutical Company which manufactures Ketamine. The other respondents are either staff members working under him or those who have been associated with transportation and shifting of ketamine. Ketamine was not in the list of psychotropic substance. It was added to that list by notification dated 10th February, 2011. On the first of June, 2011, the Director of Revenue Intelligence learnt about unlawful activities relating to ketamine inside the factory of respondent Abhijit Konduskar. They found that 826 Kg of ketamine was shifted without making any entry. 200 Kg. 3 ba 1152 of 2011 Ketamine was seized while being delivered to Jayantilal Kothari at Mumbai. Thereafter 32 drums of ketamine were also recovered from the place where they had been shifted. They contained 826 Kg of ketamine. Respondents were arrested and had applied for bail before the learned Special Judge, who after hearing the parties allowed applications by two orders dated 22nd July, 2011 and 8th August, 2011. The Department has filed these applications for cancellation of bail granted to the respondents. 3. Learned counsel for the Department submitted that the learned Special Judge need not have concluded that because the notification dated 10.2.2011 was not placed before the parliament promptly after it was issued, the notification was not effective. Learned counsel relied on the judgment of Supreme Court, in Jan Mohammad Noor Mohamad Bagban -vs- The State of Gujarat and anr, reported in A.I.R. 1966 Supreme Court, 385, where effect of such notification has been considered by the Constitution Bench of Supreme Court and it has been held that the requirement of law to place notification before the parliament is directory in nature. Therefore, according to learned counsel for the department, considering the enormous quantity of ketamine which has been manufactured and handled by the respondents, bail granted to them was improper and ought to be cancelled. 4 ba 1152 of 2011 4. Learned Senior Counsel, appearing for the respondent submitted that the notification dated 10th February, 2011 was issued in exercise of powers under Section 3 of the N.D.P. S. Act, only to add ketamine in the list of psychotropic substance at Sr. No. 110-A. Therefore, possession or handling of ketamine would amount to a contravention of provisions of Section 8 of the N.D.P.S. Act. He submitted that the punishment for such contravention in relation to psychotropic substance is prescribed by Section 22 of the Act. It provides for different punishments for contravention in relation to small quantity, quantities lesser than commercial quantities but greater than small quantities and quantities which are defined as commercial quantities. Therefore, according to learned counsel unless there is a notification defining what are small quantities or commercial quantities, section 22 could not be invoked for punishing the offenders and therefore, there could be no charge under Section 22 of the Act. He submitted that residuary section 32 which provides for punishment for offences for which no punishment is provided and the punishment prescribed is one which may extend to six months, or with fine, or with both. 5. Notification defining small and commercial quantity was issued by the Central Government on 21st June, 2011. Learned counsel for the applicant department submitted that this notification would have retrospective operation and would 5 ba 1152 of 2011 apply w.e.f. 10th February, 2011. There could be no question of retrospectively branding an act as an offence. If the Government wanted to define small and commercial quantities in respect of substance ketamine, it could have done so simultaneously while issuing notification dated 10th February, 2011. Not having done so, small and commercial quantities could be considered only on issuance of notification dated 21st June, 2011. Therefore, whatever may be enormous quantity which respondents are alleged to have handled, it could not be said prima facie that they had committed an offence which could be punished under Section 22(c) of the N.D.P. S Act. 6. In view of this, irrespective whether the learned Judge was right or wrong in concluding about effect of notification dated 10th February, 2011, since offence itself attracts punishment of only six months under Section 32 of the N.D.P. S. Act, the order granting bail to the respondents as modified by this Court by order dated 28th July, 2011, need not be disturbed. 7. In view of this both the applications are disposed off. The order of the learned Special Judge is modified by increasing bail amount to Rs.5,00,000/-. (R. C. CHAVAN, J.)