1 BAG-165.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.165 OF 2011 Faiyaz Ahmed Rasool Shaikh .... Applicant Vs. Union of India & Anr. .... Respondents S/Shri Anil Lalla with Sunil Ghodge i/b Lalla & Lalla for the Applicant. WITH CRIMINAL BAIL APPLICATION NO.522 OF 2011 Santosh Eknath Chavan .... Applicant Vs. State of Maharashtra & Anr. .... Respondents S/Shri A.P. Mundargi, Senior Counsel, with Jayant Bardeshkar for the Applicant. AND CRIMINAL BAIL APPLICATION NO.593 OF 2011 Amit Vijayrao Kulkarni .... Applicant Vs. State of Maharashtra & Anr. .... Respondents S/Shri S.V. Kotwal i/b Hrishikesh Mundargi for the Applicant. 2 BAG-165.11 Shri F.E. Saldanha, Special PP for the Union of India/NCB in all Applications. Ms P.P. Shinde, APP, for the State in all Applications. CORAM: R.C. CHAVAN, J. DATED: MAY 05, 2011 P.C: 1. These are three applications for bail by the accused in a complaint filed by Shri S.G. Dole, Intelligence Officer, Narcotics Control Bureau (for short, NCB ), Mumbai in the Court of the Special Judge concerned for the offences punishable under Section 9-A r/w Section 25-A and Sections 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act ). The applicants Santosh Eknath Chavan and Amit Vijayrao Kulkarni are the Directors of a company known as Raireshwar Organic Chemicals Private Limited. Applicant Faiyaz Ahmed Rasool Shaikh seems to be the person to whom the controlled substance was to be supplied. In a raid on the premises of Raireshwar Organic Chemicals Private Limited, 93 kgs of Ephedrine was found which was claimed to have been manufactured for 3 BAG-165.11 being supplied to M/s. Ajay Chemicals, though Faiyaz Shaikh for M/s. Ajay Chemicals denies this. After completing investigation, complaint was filed by the NCB. The applicants have been in jail since October, 2010. I have heard the learned counsel for the applicants and the learned Special PP for the NCB. 2. The learned counsel for the applicants submitted that Section 77 of the NDPS Act requires Rules and Notifications to be laid down before the Parliament. It was submitted that the Notification issued under Clause (viia) of Section 2 of the NDPS Act, notifying Ephedrine as a controlled substance, issued on 28-12-1999 was not shown to have been laid before the Parliament, as required under Section 77. The learned Special PP pointed out that Clause (viia) defines commercial quantity in relation to narcotic drugs after amendment to the Act and controlled substances are now covered under Clause (viid) of Section 2. Section 77 does not refer to Clause (viid) but refers to Clause (viia) of Section 2. He submitted that therefore there is no need for placing the Notification before the Parliament. The question as to how the provisions of Section 77 are to be interpreted 4 BAG-165.11 when various clauses under sub-section (2) get re-numbered because of the amendment would have to be dealt with in appropriate proceedings. Bail applications cannot be an occasion to go into that question. The learned counsel for the applicants next submitted that Section 77 also refers to orders under Section 9-A and those orders would also have to be placed before the Parliament. The Notification dated 28-12-1999 merely includes Ephedrine and Pseudo-Ephedrine in the list of controlled substances and is not an order/Notification under Section 9-A. It may be useful to reproduce Clause (viid) for ready reference as under: (viid) controlled substance means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance; Therefore, the Notification in itself does not prohibit, restrict or regulate dealing with Ephedrine. It only declares it to be a controlled substance. 5 BAG-165.11 3. Section 9-A of the NDPS Act deals with power to control and regulate possession/sale/ manufacture of controlled substances and reads as under: 9-A. Power to control and regulate controlled substances.- (1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generality of the power conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import inter- State, export inter-State, sale, purchase, consumption, use, storage, distribution disposal or acquisition of any controlled substance. Sub-section (1) would thus require that the Central Government may by an order provide for regulating or prohibiting production, manufacture, supply and distribution of controlled substances which may be useful for 6 BAG-165.11 production or manufacture of narcotic drugs or psychotropic substances. Sub-section (2) provides for issuing an order for regulating by licences, permits or otherwise, the production, etc., of the controlled substance. No Notification issued under Section 9-A prohibiting or restricting or regulating the possession and use or production of Ephedrine could be located by the learned Special PP despite his best efforts. In view of this, at this moment, there is a doubt as to whether the possession of Ephedrine could be said to be in violation of any order issued by the Central Government, apart from the fact as to whether such order has been placed before the Parliament, as required under Section 77 or not. 4. Apart from this, the learned counsel for the applicants placed reliance on two unreported decisions of this Court. In the decision dated 25-9-2008 in Criminal Application No.2015 of 2008 {Rafael Palafox Garcia v. The Union of India & Anr.}, this Court was considering the application for bail by a person who was found to be in possession of 290 kgs of Pseudo-Ephedrine. The Court referred to an earlier judgment of this Court 7 BAG-165.11 in the case of Shreeniwas Bansidhar Somani v. The Intelligence Officer, NCB and another, delivered in Criminal Application No.181 of 2002 on 14-2-2002. The Court had observed that in respect of offences pertaining to possession of a controlled substance, there is no statutory minimum punishment and therefore the provisions of Section 37(1)(b)(ii) of the NDPS Act would not be attracted. The punishment for possession of controlled substance, in contravention of orders made under Section 9-A, presuming that there is some such order under Section 9-A, is RI for a term which may extend to 10 years and also fine which may extend to Rs.1,00,000/-, though the proviso enables the Court to impose fine in excess of Rs.1,00,000/-. The section does not lay down that the punishment has to be some minimum statutorily prescribed. Therefore, Section 37(1)(b(ii) would not be attracted and therefore the Court would have discretion in the matter of grant of bail. 5. Considering that in the past, for possession of 290 kgs of Pseudo-Ephedrine in the case of Rafael Palafox Garcia (supra), or for possession of 1250 kgs of Acetic Anhydride in the case of Shreeniwas Bansidhar Somani 8 BAG-165.11 (supra), the persons concerned had been admitted to bail, there is no reason why the applicants in these three applications should not be admitted to bail. The applications are therefore allowed. The applicants be released on bail in NDPS Case No.1 of 2010, pending before the learned Addl. Sessions Judge in District Raigad and in NCB/BZU C.R. No.11 of 2010 registered with Narcotics Control Bureau, Mumbai respectively on their furnishing P.R. Bond in the sum of Rs.50,000/- each with one or more solvent sureties in the sum aggregating to Rs.50,000/- per applicant on the condition that they shall attend the office of the Narcotics Control Bureau concerned on the first Monday of every month in between 10:00 a.m. and 1:00 p.m. till the trial is over. The applications accordingly stand disposed of. (R.C. CHAVAN, J.)