1. Applicant has preferred this successive bail application under Section 439 of the Code of Criminal Procedure in connection with F.No.DRI/AZU/NDPS-1/2011 under Sections 22 , 23 , 24 , 25 , 27A, 28 , 29 , 30 , 38 read with Section 8(c) of the NDPS Act, 1985 read with Section 120(B) of the Indian Penal Code.

2. The applicant accused, had preferred Criminal Miscellaneous Application No. 11287 2012 seeking default bail under Section 167(2) of the Code of Criminal Procedure and thus, his case on merits is being examined for the first time as he also chose not to prefer the bail under Section 439 of the Code of Criminal Procedure before the Sessions Court.

The brief facts necessary to understand the issues raised in this case are as narrated herein :-

Such decisions in the case of applicant would not be applicable. It is further contended that in the matter before the Apex Court, the drugs seized were from the clinic of the applicant, as the applicant there was a doctor having valid licence. Moreover, the Apex Court had no occasion to deal with the applicability of Rule 57 as well as Rule 53A of the Rules, which would have an applicability in the instant case. As far as the decision of the Bombay High Court rendered in Criminal Appeal No.1845 of 2010 is concerned, it is contended by the other side that the substances seized may not be mentioned in Schedule I of NDPS Rules, 1985. However, with nothing to indicate with regard to adjudication or interpretation of Rules 53A, 57 and 66, this authority should not be applicable to the case of the present applicant.

4.2 It is further the say of the respondents that in SLP(Criminal) No.9035 of 2011 pending before the Apex Court, no final order has been passed and the same is still pending. From these details, it is urged that total quantity of 1.556 kgs of seized psychotropic being very large, Interim order in such background must not be granted.

4.3 Again, in Criminal Miscellaneous Application No. 2343 of 2011 one of the co-accused vide order dated 25.4.2012 has been enlarged. However, in absence of any reasons, the same should not be treated according to the respondent, as a precedent.

4.4 Reference is also made of SLP(Criminal) No.4976 of 2006 where the Apex Court has referred the issue to three Judges Bench, as there are conflicting decisions with regard to applicability of Section 8 of NDPS Act. However, according to the respondent, in that case also authorized representative of M/s. Gujarat Market had held a drug licence for manufacturing of injection and certificate of exporter and importer also was issued in favour of Gujarat Marketing. It is, therefore, urged that the present applicant does not have any valid licence under the Drugs and Cosmetics Act, 1940 and he has clearly indulged in transport of psychotropic drugs and that too holding the commercial quantity. Rigors of section 37 of NDPS Act would apply in his case. It is urged that huge quantity of psychotropic substances have been seized estimating value worth crores of rupees in the illicit international market. Therefore, also no benefit be accorded of grant of bail as it is a conscious and deliberately engineered conspiracy executed by the applicant.

Learned counsel Mr.I.H.Syed appearing with Ms. Smitakshi Roy for the applicant and Mr. Hriday Buch, learned Standing Counsel for DRI have been heard at length who have fervently argued their respective submissions.

6. At the outset, the first contention raised by the respondents with regard to the applicant having directly approached this Court under Section 439 of the Code of Criminal Procedure requires to be dealt with. Section 439 of the Code of Criminal Procedure confers special powers on High Court and the Court of Sessions for grant of bail to a person, who is accused of an offence of a nature prescribed in sub-Section (3) of Section 437 of the Code of Criminal Procedure on imposing certain conditions, which they think are necessary.

6.1 The Court needs to regard the nature and seriousness of the offence, possibility of tampering of prosecution evidence by the accused, possibility of accused fleeing away from justice and the punishment the offence may entail, the circumstances peculiar to the accused and the larger interest of the public etc., while considering such application for bail. As the powers are given to both the Courts, it is a discretion of the litigant to invoke jurisdiction of either of them. If the applicant chooses not to prefer any application under Section 439 before the Sessions Court that itself cannot be the ground for this Court to dismiss his application or direct him to approach this Court only after having exhausted the remedy before the Sessions Court.

7. This brings this Court to the another vital aspect on merit. As mentioned earlier, application of this applicant for grant of bail on account of alleged default made by the Investigating Agency in laying the chargesheet has been rejected when he preferred default bail under Section 167(2) of the Code of Criminal Procedure. However, while upholding the order of the learned Sessions Judge, this Court had not touched the merits of the case. It is for the first time that the matter is being pursued on merits. Therefore, it will not be possible to treat the this as a successive bail in stricto senso and uphold the contention that unless the change in the circumstances are made out, the Court cannot entertain the same on merits.

8. This brings this Court to the third and the most vital aspect whether the petitioner is entitled to the grant of regular bail particularly on account of non-inclusion of the all the three psychotropic substances allegedly seized from him in the Schedule I of NDPS Rules.

10. Much emphasis is laid by learned advocate Mr. I.H.Saiyed appearing for the applicant accused on the decision of the Bombay High Court and also on the decision of the Apex Court to urge this Court that absence of such specific inclusion of these substances in the schedule would not make the act of the person an offence under Section 8 of the NDPS Act and thus, benefit of such situation needs to be availed to the applicant. He reiteratively argued that such technical loophole if benefits the applicant, Court should allow the same as it is a matter of personal liberty.

11. Per contra, learned advocate Mr. Buch has fervently objected to such proposition, particularly, arguing that various rules mentioned in the affidavit-in-reply were not discussed before the Apex Court. Moreover, there were conflicting judgments and one of them has been referred to the Larger Bench. However, he does not dispute that while so doing, the Court had enlarged the accused on regular bail noting that the liberty of an individual cannot be subjected to the outcome of the reference. He although emphasized all along that circumstances peculiar to the applicant would not entitle him any discretionary relief.

12. At the outset, some of the details available from National Institute on Drug Abuse Site would be necessary to be capsulized to understand the gravity of seized substance.

12(i) Methamphetamine is a central nervous system stimulant drug and is similar in structure to amphetamine . Due to its high potential for abuse, Methamphetamine is classified as Schedule-H drug and is available only through a prescription that cannot be repeated. Although Methamphetamine can be prescribed by a doctor its medical uses are limited and the dose that are prescribed are much lower than those typically abused.

12(ii) Methamphetamine is a white odorless, bitter tasting crystal like powder that easily dissolves in water and alcohol and is taken orally and inhaling by (sharing the powder) by needle injection or by smoking.

12(iii) Methamphetamine is a very addictive stimulant drug. It can be smoked, injected, inhaled or taken orally. It has many street names such as speed, meth and chalk. Methamphetamine Hydrochloride, the crystal form inhaled or by smoking is referred to as ice, crystal, glass and tina.

12(iv) Taking even a small amount of Methamphetamine can result in many of the same physical effects as those of other stimulants, such as cocaine and amphetamine.

12(v) Methamphetamine increases the release and blocks the brain chemical (a neurotransmitter) dopamine, leaving high levels of chemicals in brain, a common mechanism of action for most drugs of abuse.

12(vi) Methamphetamine affects the brain and creats feelings of pleasure, increases energy and elevates mood. Abuser may be addicted quickly, needing high doses more often. Adverse health affects with irregular heartbeat and increased blood pressure and variety of phychological problems. Long term abuse affect several mental disorder, memory loss and severe dental problems.

12(vii) Transmission of HIV and Hepatitis B & C can be consequences of Methamphetamine abuse.

13. Before adverting to the rival contentions of the parties, law on the subject would be important to note. Section 8 of the NDPS Act, 1985 profitably requires to be reproduced:-

Except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

14. What is made punishable under Section 22 is the contravention of any of the provisions of the NDPS Act as well as any Rules or orders made thereunder. Different punishments are prescribed in respect of small quantity, quantity which is less than the commercial quantity and also for the commercial quantity.

15. Section 22 of the NDPS Act reads thus:-

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable:

Unless there is valid authorization issued by the Government, no consignment of any narcotic drug and psychotropic substance can be exported, of course, subject to provisions of Section 79 and Rule

53. 16.2 Rule 53 speaks of general prohibition. No drugs or psychotropic substances specified under Schedule I can be imported or exported. Of course, if there is import certificate or export authorization, exception is permissible only under these authorizations.

16.3 Rule 53A of the said Rules prohibits export of any of the narcotic drugs and psychotropic substances specified in Schedule II. However, it is within the authority of the Narcotic Commissioner to permit export of specified quantities of such narcotic drugs or psychotropic substances under the special import licence to be issued by the competent authority of the country.

16.4 Rule 66 of NDPS Rules does not permit any person to possess psychotropic substances for any purpose unless he is authorized lawfully to possess such substances for any of the said purpose under the Rules for medicinal purpose, psychotropic substance in the possession of individual should not exceed 100 dosage units at a time. It is further provided that the individual may possess the quantity not exceeding 300 dosage units at a time if advised medically.

Research institute or hospital or dispensary supported by a Government Local Body or by voluntary subscription are permitted to possess reasonable quantity of such substance for genuine scientific and medical requirements and individual can possess for a personal medical use the quantity not exceeding 100 dosage units and for long term medical use prescribed by registered medical practitioner the quantity must not exceed 300 dosage units.

Thus, it can be deduced from this rule that any one possessing more than 300 dosage units at a time, for personal consumption even with prescription for medical usage, the rule prohibits such possession.

16.5 Rule 67 permits transportation and importation inter-State or exportation inter-State subject to the provision of Rule 64 which prohibits any psychotropic substance to be sold, purchased, consumed or possess. Psychotropic substance specified in Schedule I means that those substance specified in Schedule I are having general prohibition and none of the above-mentioned activities is permissible.

17. In a matter before the Bombay High Court (in Criminal Application No.3618 of 2010) in case of Union of India vs. Ravindran Krarapaya @ Ravi and Ors. (with Criminal Application No.5640 of 2009) in the case of Union of India vs. Xie Jing Feng @ Richard & Anr, the High Court was considering the request of Union of India for cancellation of bail of the accused granted by the Special Court.

In these matters, the officers of NCB had raided flat of the accused. They found 7 kgs of Methamphetamine and 5 kgs of Ephedrine. These contraband articles were seized and sealed under Panchnama. The accused were arrested and they were taken into custody in connection with the seizure. The statements were recorded and it was revealed that accused Xie Jing Feng dealt with export of contraband drugs and other accused, who were his employees, assisted him. The Court noted that Methamphetamine is a psychotropic substance while Ephedrine is a controlled substance. Accused were alleged to have committed offence under Section 22 and 25A of the NDPS Act.

Special Judge relying on the judgment and order passed by the Bombay High Court in Criminal Miscellaneous Application No. 3295 of 2005 , (M.V. Henry vs. Raviprakash Goyal) and Pradeep Dhond vs. NCB, Mumbai held that the provisions of NDPS Act were not prima facie applicable and therefore embargo under Section 37 of NDPS Act would not come into play.

Such grant of bail, therefore, came to be challenged on the ground that Methamphetamine is a psychotropic substance as defined under Section 2(xxiii) . It was contended before the Bombay High Court that Section 8(C) provided for prohibition and Section 22 provided for punishment of contravention in relation to psychotropic substances. Punishment prescribed under the provisions of Section 22 is less than 10 years and which can extend upto 20 years, and therefore, the bail ought not to have been granted. Other side argued that Methamphetamine is not shown in Schedule I as per the Rules 53 and 64 of the NDPS Rules. Therefore, general prohibitions as contained in both these rules would not applicable. Various judgments of different High Courts were relied upon and relying on the judgment of Bombay High Court in M.V. Henry vs. Raviprakash Goyal (supra), the accused contended that the order required no interference. The Court, after a detailed discussion of the provisions, allowed both these applications cancelling the bail granted to both the accused.

It would be worthwhile to reproduce the relevant paragraphs for the purpose of determining contentions raised by the petitioner herein:-

xxx xxx xxx xxx xxx xxx xxx xxx xxx In the present case, huge quantity of 7 kg. Methamphetamine was recovered from flat no.601 which was, prima facie, in possession of the accused persons. It is not the case of the accused that they had any licence, permit or authorisation either to manufacture or possess or store the said psychotropic substance. Therefore, none of the above authorities or the Rules comes to support the accused. In fact, Rule 66 also prohibits any person from possession of any psychotropic substance for any of the purposes covered by the Drugs and Cosmetics Rules, 1945 unless he is lawfully authorised to possess a substance for any of the said purposes under the Rules. In the present case, accused do not claim to have any such authorisation. Therefore, in view of the provisions of Section 8 read with Section 22 of the NDPS act, prima facie, the accused had comitted the offence of possession of commercial quantity of psychotropic substance i.e. Methamphetamine and are prima facie, liable to be convicted and sentenced under Section 22(c) . Taking into consideration huge quantity which is much beyond the limits of commercial quantity also and the revelation made during the investigation that accused No.3 was regularly dealing with export of psychotropic substance form India and that accused Nos.1 and 2 were assisting him, no case is made out to grant bail to them. The learned Special Judge did not consider the facts of the present case and without considering the facts and the legal position, granted bail following the judgment in Ravi Prakash Goel and Pradeep Dhond (supra), without looking to the difference in the facts of the cases. In view of the above facts and circumstances, I hold that the trial court committed serious error in granting bail to the accused persons and therefore, in the larger interest of justice, it is necessary to set aside the said order of bail.

The Apex Court in Criminal Appeal No.1845 of 2010 arising out of SLP(Criminal) No.4135 of 2010, lifted the stay granted by the Bombay High Court against the order of the Special Judge granting bail to the appellant before it. The Court noted thus:-

The Union of India challenged the order passed by the learned Special Judge granting bail to the appellant before the Bombay High Court. The High Court noted that its order granting bail to Pradeep Dhond was taken to this Court where the matter was referred to a larger Bench. On that ground, the High Court issued Rule on the application filed by the Union of India and stayed the operation of the bail order passed by the Special Judge with the result that the appellant continues to languish behind bars.

Mr. Amarendra Sharan, learned senior counsel, appearing for the appellant, submitted that the order of the Bombay High Court granting bail to Pradeep Dhond was not set aside by this Court and merely a reference to the larger bench was hardly a reason justifying denial of bail to the appellant indefinitely. In this regard, Mr. Sharan, pointed out that after issuing Rule, the disposal of the case of Pradeep Dhond by the larger bench of this Court and in the meanwhile had stayed the operation of the bail order passed by the Special Judge. There was no indication that the case of Pradeep Dhond pending before this Court would be disposed of at an early date. In other words, the appellant was left incarcerated indefinitely.

Mr. Sharan also invited our attention to a decision of this Court in State of Uttaranchanl vs. Rajesh Kumar Gupta , (2007) 1 SCC 355, in which the order of the Bombay High Court granting bail to Pradeep Dhond was referred with approval.

Mr. Mahesh Jain, learned ASG, appearing for the Union of India relied upon rule 66 of the NDPS Rules and submitted that the High Court rightly denied bail to the appellant.

In the facts of the case, we are unable to agree with the learned ASG and we are of the view that it was not proper, fair or correct for the High Court to stay the bail order passed by the Special Judge for the reason assigned in its order and to leave the matter indefinitely in the limbo. We, accordingly, lift the stay granted by the High Court against the order of the Special Judge granting bail to the appellant.

In the result the appeal is allowed.

19. It would be worthwhile noticing two conflicting judgments of the Division Bench of the Supreme Court in the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira reported in (2004) 3 SCC 549 and in the case of State of Uttaranchal vs. Rajesh Kumar Gupta reported in (2007)1 SCC 355.

In the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira (supra) the accused were found carrying larger quantity of Diazepam of 5 mg. tablets. The Apex Court was of the opinion that the seized article since was psychotropic substance and twin conditions for grant of bail were not satisfied, it cancelled the bail of the accused by holding thus:-

(JT 1995 (4) SC 253) clause (b) of sub-section (1) of Section 37 impose limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case at hand the High Court seems to have completely overlooked the underlying object of the Section 37 . It did not take note of the confessional statement recorded under Section 67 of the Act. Description Serial No. 43 of the Schedule which reads as follows has not been kept in view.

No. International Non-proprietary names Other Non-proprietary names Chemical Name

43. Diazepam 70Chloro-1 3-dihydro-1

In addition, the report of the Central Revenue Control Laboratory was brought to the notice of the High Court. The same was lightly brushed aside without any justifiable reason.

8. In the aforesaid background, this does not appear to be a case where it could be reasonably believed that the accused was not guilty of the alleged offence. Therefore, the grant of bail to the accused was not called for. The impugned order granting bail is set aside and the bail granted is cancelled. The accused respondent is directed to surrender to custody forthwith. Additionally it shall be open to the trial Court to issue notice to the surety and in case the accused does not surrender to custody, as directed, to pass appropriate orders so far as the surety and the amount of security are concerned. It is made clear that no final opinion on the merit of the case has been expressed in this judgment, and whatever has been stated is the background of Section 37 of the Act for the purpose of bail.

20. Whereas in the case of State of Uttaranchal vs. Rajesh Kumar Gupta (supra), the respondent was an Ayurvedacharya operating from two clinics of his. He though advertised that his medicines were prepared from herbal plants collected from the banks of river Ganges, he was alleged to have possessed medicine containing psychotropic substance and, thereby he was charged of addicting patients with such drugs. He was arrested and charges were framed against him under Section 8(2) of the NDPS Act.

In his application for bail, the Court allowed his application by holding that Section 37 would have no prima facie application in view of the exception contained in Section 8 and that the provision of Section 37 must be construed in a pragmatic manner. Rules 53 and 65 are held to be containing genus and other provisions following the same under chapter are held to be species thereof. The Apex Court took note of Section 76 and Section 9 recognizing the rules making provisions. It also took note of Rules 53, 64, 66, 67, 67A and has held thus:-

However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder.

19. It has not been brought to our notice that 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under Section 9 of the 1985 Act read with Section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import, export and trans-shipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I appended thereto is prohibited. Such prohibition, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general prohibition contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67A provides for special provisions for medical and scientific purposes.

20. The general prohibitions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances.

21. The respondent admittedly possesses in Ayurveda Shastri degree. It is stated that by reason of a notification issued by the State of Uttar Pradesh dated 24-2-2003, the practitioners of ayurvedic system of medicines are authorised to prescribe allopathic medicines also. The respondent runs a clinic commonly known as Neeraj Clinic . He is said to be assisted by either other medical practitioners being allopathic and ayurvedic doctors. It is also not in dispute that only seven medicines were seized and they are mentioned in Schedules G and H of the Drugs and Cosmetics Rules.

xxx xxx xxx

22. It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics Rules. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlordiazepoxide are mentioned in Entries 69 and 36 of the 1985 Act respectively, whereas none of them finds place in Schedule I appended to the 1985 Rules. If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder.

23. In view of the fact that all the drugs, Items 1, 2,3,4,6 and 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Rules indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression medicinal purposes .

24. The exceptions contained in Section 8 of the 1985 Act must be judged on the touchstone of:

25. Chapter VII-A of the 1985 Rules which was introduced by the notification dated 25-6-1997 with effect from 27-6-1997 provides for special provisions regarding manufacture, possession, transport, import-export, purchase and consumption of narcotic drugs and psychotropic substances for medical and scientific purposes.

26. It, therefore, permits use of narcotic drugs and psychotropic substances for the purposes mentioned therein. Rule 67-A does not abrogate the provisions of Rule 53 or Rule 64 provided for in Chapter VI and VII of the 1985 Rules. They are in addition to the said provisions. It, however, contains some more restrictions. We are only concerned with clause (b) of Rule 67-A, in terms whereof the records concerning the acquisition of the substance and the details of their use in Form 7 of those Rules are to be mentioned.

27. Violation of clause (c) of Rule 67-A does not appear to have been alleged against the respondent. It was, however, stated at the Bar that the respondent has complied with the said provisions and, in fact, along with his bail application requisite documents have been furnished. Rule 67-A expressly permits use of certain drugs for limited medical requirements of a foreigner. It, however, appears that the sentence contained in clause (b) of Rule 67-A is not complete.

xxx xxx xxx xxx xxx xxx

36. In the instant case, we are of the opinion that Section 37 of the 1985 Act would prima facie have no application in view of the exception contained in Section 8 thereof read with the Rules.

37. The views which we have taken appear also to have been taken by the High Court of Delhi in Rajinder Gupta v. State as also the Bombay High Court in Pradeep Dhond v. Intelligence Officer, Narcotic & Control Bureau.

38. The respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses our morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly, in view of the fact that he has been in custody for a period of more than two years now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India.

In case of Union of India vs. Pradeep Shivram Dhond (supra), the High Court had granted bail to the accused, which came to be challenged before the Apex Court in the petition for Special Leave to Appeal (Criminal) No.4976 of 2006. The petition memo of this appeal is also brought on the record, which indicates that the accused persons were intercepted by the authority from boarding Ethiopian Airlines Flight and recovered from their baggage total of 17976 ampules of Fortwin injection of 1 ml each containing Pentazocine ( 30 mg) which is a psychotropic substance listed in the list of psychotropic substances specified in Schedule under Section 2(23) of the NDPS Act. Pentazocine is a Schedule-H prescription drug and according to the Special Judge the bail application could not have been granted in wake of stringent provisions of NDPS Act . However, the Bombay High Court was of the, prima facie, opinion that the Act itself is not applicable in the case of applicant accused and, therefore, he was granted bail. The Court emphasized on Rule 64, which speaks of general prohibition of transportation, importation, exportation etc. of the psychotropic substance specified in Schedule-I. The Court held that the reasons given in Criminal Miscellaneous Application No. 3295 of 2005 would squarely apply to the instant case.

At this stage, relevant findings of Bombay High Court in Criminal Miscellaneous Application No. 3295 of 2005 rendered in the case of in cancellation of bail proceedings would bear significance.

30. The Schedule contains list of pyschotropic substances and for our purpose Item No.92 and 106 thereunder are relevant. N.D.P.S. Rules, 1985 contain Chapter VII and Rule 64 thereunder reads thus:-

31. No person, on a bare perusal of this Rule can carry on the activities mentioned therein pertaining to the psychotropic substances specified in Schedule I. This Schedule I is schedule to the Rules. Admittedly, this schedule does not include or mention the psychotropic substance in question.

32. The issue, therefore, that falls for consideration is whether merely because the psychotropic substance included in the Schedule to N.D.P.S. Act is not mentioned or included in Schedule I to the Rules, then, prohibition contained in section 8(c) is attracted and the exception thereunder becomes inapplicable?

33. It is contended before me that for the purpose of definition of the term Psychotropic Substance , The Schedule to the Act has been framed. That is for the purpose of understanding the definition and only those substances which are mentioned and included in The Schedule to the Act would be Psychotropic Substance in the Act. Therefore, for the purpose of applicability of the Act to the Psychotropic substance in the question, the schedule is relevant. However, as to whether any opearation pertaining to this Psychotropic Substance is prohibited or not, the provision in that behalf is Section 8 . If Section 8 prohibits the operations totally inasmuch as, they are not even saved by the exception carved out therein, then, indulging in these operations or continuing them would be an offence under the Act. For that purpose, NDPS Rules and Rule 64 in particular will have to be looked into. In other words, whether the operation is covered by the exception or not must be tested on the basis of the above said Rule and Schedule I to the Rules. Prima facie, this contention appears to be well founded.

34. A similar question or issue fell for consideration of Delhi High Court in the cse of Rajinder Gupta & Ors. vs. State , reported in 2005 (84) DRJ 19, and the learned Single Judge after noticing earlier decisions as also the above mentioned statutory provisions answered the same thus:-

Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the limits specified under the rule and subject to such conditions as the rule may prescribe, such a person cannot be held guilty of the offence under section 21 of the Act if it is shown that his possession is not in contravention of such rule.

This would apply equally to the offence punishable udner section 22 of the NDPS Act in relation to psychotropic substance. This is clear as, in the case of Ouseph vs. State of Kerala (2004) 4 SCC 446, the Supreme Court had observed that If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed and in Hussain vs. State of Kerala (2000) 8 SCC 139 (pg. 142), the Supreme Court had already held that :- If it was psychotropic substance possession of the same would amount to an offence only if it was in contravention of section 8 of the Act. That section shows that no person shall possess any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder Therefore, an examination of Section 8 of the NDPS Act and the provisions of Chapter VII of the NDPS Rules is called for.

Section 8 :-....

Section 8(c) which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale use etc. of any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the NDPS Act or NDPS Rules or orders made thereunder. This means that while there is a general prohibition against the manufacture, possession, sale, use etc. of an psychotropic substance, if the same is a medicine and is to be used for a medical purpose then the manner and extent of its manufacture, possession, sale use shall be as provided in the NDPS Act or NDPS Rules or orders made thereunder. We must remember that buprenorphine hydrochloride I.P. is a Schedule H drug within the meaning of the D & C Act and Rules. Its manufacture, sale etc. is regulated by the D & C Act and D & C Rules. Coming back to the N.D.P.S. Act , I find that in the case of a medication, which also happens to be a psychotropic substance within the meaning of the N.D.P.S Act , its extent and manner of use etc. would be governed by the other provisions of the NDPS Act or NDPS Rules.

A11. Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with Psychotropic Substances . Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribes the general prohibition. It provides that:-

Mr.Salvi and Mr.Thakare contended that the observations of Delhi High Court as also Punjab and Haryana High Court do not take into account the fact that if one is guilty of offences under D & C Act that by itself does not mean no penalty can be imposed for violation of N.D.P.S.Act. Area and field covered by these two enactments, according to them, is not identical. Therefore, the judgement of the Delhi High Court proceeds on an erroneous basis that whenever Psychotropic substances or drugs are manufactured, sold, exported, used, possessed and consumed for medical and scientific purpose, then all that can be done is to proceed against persons involved therein for breach or violation of the D & C Act alone and they cannot be proceeded or tried for breach or contravention of N.D.P.S. Act .

36. It is true that N.D.P.S. Act and D & C Act operate in separate area and field and breach of one or violation or contravention of one does not mean breach or contravention or violation of the other and in a given case, both can be breached and violated and for such violation, penalties can be imposed under both. However, it is equally well settled that whenever, a person is accused of commission of any offence that offence must be specifically provided as also the punishment. The act or ommission which is made an offence punishable by law must be specifically and clearly set out and provided. It is not the case of the applicant Union of India that there is any ambiguity in the relevant statutory provisions. What is contended is that the Act and the Schedule thereto is paramount and, therefore, the rules and the schedule thereto being subordinate to it, the Act and the Schedule to the Act must prevail. There is nothing in the provision which would indicate any conflict. As to what would prevail and what is subordinate or subservient is not the question at all when the provisions are unambiguous and clear. They have to be read as they are and nothing can be added or subtracted therefrom.

37. If section 8(c) had been worded differently, then possibly an argument could have been advanced that the schedule to the Act must prevail over Schedule I to the Rules. However, section 8(c) itself refers to not just the Act but rules and/or orders made thereunder. Admittedly, N.D.P.S. Rules are made under N.D.P.S. Act . Admittedly, they can and they do deal with the operations covered by section 8(c) . Once an exception is carved out under section 8(c) , by reference not just to the Act but to the Rules as well as orders framed thereunder and also to any provision which requires taking out of a licence and terms and conditions of such licence, then all this would have to be taken into account for finding out whether section 8 is attracted. In other words, whether section 8 has been violated or not must be considered in the light of not just the Act but the Rules, orders made thereunder and also by looking at the terms and conditions of the licence stipulated by N.D.P.S. Act . If section 8 is not attracted, then, admittedly, section 22 also becomes inapplicable as it also uses same phraseology. It is well settled that whenever Legislature uses identical words in the same Statute then, the intent is that they carry same meaning, unless intended otherwise. Here, the intention is clear. The prohibition in section 8 is pertaining to certain operations and if they are carried out contrary to the mandate of section 8 , then such contravention becomes punishable under the Act. The punishment is in section 22 and that penal provision also contains identical phraseology. In other words, contravention of any provision of the Act or any rule or order made is punishable. In this case, contravention is of section 8 and, therefore, punishable.

However, section 8 itself has an exception and prohibition carved out therein would not then apply to the operation which is covered by the exception. It is well settled that the function of exception and proviso in Legislative drafting is to exclude something from the purview of the main section or to elaborately explain it. The exception which is part and parcel of section 8(c) must be given the effect as intended by the Legislature.

38. So given, as far as Psychotropic substances in the present case are concerned, operations pertaining to them are permitted because Schedule I to the Rules do not include them at all. That these substances are included in the schedule to the Act is not of any relevance because one has to see everything viz., the Act, the Rules and order made thereunder together and in a harmonious manner. It is well settled that the Psychotropic substance is included in the Schedule to the Act but it is not included in the Schedule I to the Rules, then operations covered by section 8 cannot be said to be contravening provisions of the Act and, therefore, punishable. That is how, these provisions have been interpreted by Delhi High Court and earlier by Punjab and Haryana High Court. Their views have my respectful concurrence .

23. In light of the aforementioned discussions and the decisions of the Apex Court pressed into service by the applicant herein the only question that needs to be answered by this Court is as to whether the aforementioned authorities of the Apex Court and those of Bombay and other High Courts can apply to the case of the applicant thereby entitling regular bail to him?

24. Learned advocate Mr. Saiyed has pointed out that in Criminal Appeal No.1405 of 2010 ( Union of India vs. Jagdish Singh and Anr. ), the Apex Court has clearly noted that mere reference to Larger Bench of the order of the Apex Court granting bail to Pradeep Shivram Dhond cannot justify denial of bail to the accused indefinitely, and therefore, when all the three psychotropic substances found from the accused are not finding mention in Schedule-I of the NDPS Rules framed under the Act, can the applicant cannot be denied the bail by this Court invoking provision of Section 8 read with Section 21 of the NDPS Act.

25. Before answering the question in wake of factual matrix of the applicant, contention of learned advocate Mr. Buch shall have to be considered as far as Rule 53 and 53-A are concerned, Rule 53-A was inserted on 10.8.1993 which read as thus:-

Subject to the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Sch.I is prohibited:

25.1 It does not permit export of any narcotic drug or psychotropic substance or any preparation specified in Schedule-II to the countries or to the region of such country specified therein except with the authorization of the Narcotics Commissioner, who can permit specified quantities on the basis of Special Import Licence issued by the competent authority of the country mentioned in Schedule-II.

25.2 It is a fact that none of the above referred authorities even referred to Rule 53A of 1985 Rules. The decision of the Apex Court rendered in the case of State of Uttranchal vs. Rajesh Kumar Gupta (supra), of course, has referred to both Rules 53 and 64 as genus and rest of the rules as species. Yet when it is found that this provision which is introduced in the year 1993 and which clearly prohibits any export of psychotropic substances or narcotic drugs or any preparation also containing such drug or substance specified in Schedule-II to the country or to the regions of such countries specified therein, For instance, Methamphetamine is at Sr.No.30 in Schedule-II and the countries or region to which the export of this substance is prohibited are given column No.5.

26. Allegedly, in the instant case, the applicant was going to export it to UK and to the USA. Neither of these countries fall under the list of countries where export is prohibited. Likewise in case of Alprazolam and Ketamine Hydrochloride none of these countries find place. Therefore, it can be said that what is specially prohibited under Rule 53A is the export to the countries specified in Column No.5 of Schedule-II against those specified substances. That of course cannot automatically give any licence to any person not to observe the Rules contained in Chapter VII A. This Chapter governs special provisions for medical, scientific and training purpose and permits use of psychotropic substance as drug as mentioned therein.

27. In the case of the present applicant, therefore, what needs to be regarded in light of the discussion above is the factum that the applicant has worked as a courier and has allegedly attempted illegal export of the substances by hiding the packets as ostensibly containing the packets of flour Maida snacks etc. He has also admitted in his statement that these substances were psychotropic substances and he was aware of that fact. He had no licence admittedly issued under drugs and Cosmetics Act nor was he given any authorization to possess these substances.

28. Although from the facts of any of the cases where the accused applicant had some connection with medicinal preparations or scientific research, only question, therefore, requires to be answered by this Court is as to whether the interpretation of law in the aforementioned authorities, in absence of reference of these three psychotropic substances in Schedule-I of the Rules would entitle the applicant the grant of bail?

29. The Court is conscious of the rigours of Section 37 of the NDPS Act where two conditions which are cumulative and not alternative, are necessary to be satisfied that the accused is not guilty of commission of offence and no recurrence at his end is possible while on bail. It is also to be noted that exceptions of Section 8 referred to specifically in the provision will not come to the rescue of the present applicant as the present applicant is either not a medical practitioner nor is he having any manufacturing unit nor is he, in any manner, connected with any medicinal preparations. It is also alleged in the complaint itself that surreptitiously and unauthorizedly huge quantity of this psychotropic substances were to be exported.

30. This Court is also made aware of the fact that the psychotropic substances attempted to be exported unauthorizedly would fetch in the international market, huge sum running into crores of rupees ( Rs.436 approximately). As noted in paragraph 12 of this order, Metamphatamine Hydrochloride is a very addictive stimulant drug and is structured similarly to Amphatamine .

31. Section 2(xxiii) explains psychotropic substances as follows:-

32. Rules 53 and 64 contain general prohibitions in respect of import into and export out of India of the Narcotic Drugs and Psychotropic Substances or manufacturing, selling and consumption or possession or transportation of these drugs or substances specified in Schedule-I of the Rules as mentioned hereinbefore.

33. What is made punishable under this law is the contravention of any provision of this Act or any Rule or order made or conditions of licence granted.

Section 8 prohibits export from India of narcotic drugs and psychotropic substances except for medical or scientific purpose that too by way of licence permitted or authorization. In a matter before the Apex Court the drugs which were seized from the person who claimed to be Ayurveda Acharya and otherwise had a licence and had also produced requisite documents complying with the provisions of Section 67A along the application of bail. These drugs fell under the purview of Schedule-G and H of the Drugs and Cosmetics Act. Thus, in matter before the Apex Court, exception contained in Section 8 of the Act was found to be applicable.

34. In absence of any licence, permit or for authorization for medicinal or research purposes either for the purpose of manufacturing or possession or for sale or for import or export of the said psychotropis substances, the case of applicant accused does not fall under the exceptions carved out under Section 8 of the NDPS Act.

Section 76(1) read with Section 9 of the Act contemplate making of rules by the Central Government for carving out purposes of this Act and not in contravention thereof which of course would be subject to the provision of Section 8 of the NDPS Rules, 1985 framed and notified pursuant to these provisions of Section 9 and Sections permit and regulate such operations , subject to provision of Section 8 . In other words, when rules are made to permit and regulate operations of narcotic drugs and psychotropic substances, they cannot be in contravention of Section 8 of the act and the same need to be construed essentially keeping in mind exception to Section 8 . Any other interpretation would make the provisions of the Act subservient to the rules and orders.

35. The question, therefore, would need to be answered that huge quantity of psychotropic substances seized from the accused even when is not mentioned in Schedule-I it would still become an offence under Section 8(C) read with Section 22 and he cannot be enlarged on regular bail for not having fallen under any of the exceptions carved out in the provision itself. Interpretation otherwise than this would render not only the Schedule to the Act otiose but would frustrate the very objective of the Act, particularly keeping in mind huge quantity of psychotropic substance seized from the applicant.

36. Petitioner has in the past indulged into such similar offences and has changed the very legal entity of firm/business. His release will invite, in its all probabilities, recurrence and also send wrong signal in the society. With no reasonings available in the order of release of his co-accused and role of the applicant being very grave, his application on none of these counts deserve any favourable consideration. The same is, therefore, dismissed.

(MS SONIA GOKANI, J.) SUDHIR Page 44 of 44