Heard Shri DK Baidya, learned counsel for the petitioner, namely, Amal Das, who has
filed this application under Section 438 CrPC seeking pre-arrest bail in connection with
Basistha PS Case No. 1023/2020 registered under Section 21(c) / 29 of NDPS Act, 1985. Also
heard Shri BB Gogoi, learned Additional Public Prosecutor, Assam.
2. The projected case of the petitioner is that the allegations in the FIR are incorrect
though it is a fact that a Truck was intercepted near Jorabat and in the search, Eskuf cough
syrup in 44,160 nos. of bottles in 276 nos. of cartoons were recovered without any
documents. The projected case of the petitioner is that the psychotropic substance seized
was sold by the agency run by the petitioner to a distributor of Karimganj district. The further
case of the petitioner is that one Anirudh Kumar Singh was running M/s. Hematech
Pharmaceuticals at Narangi. The said Anirudh Kumar Singh had requested the present
petitioner, who was running another drug distributorship in the name of ANM Pharmaceuticals
to run his distributorship and accordingly executed a Power of Attorney dated 21.01.2021 in
favour of the petitioner on the strength of which, the petitioner is running the business of
M/s. Hematech Pharmaceuticals. It has also been contented that the consignment in question
was purchased from one Daffodil Drugs Private Limited, Kolkata and was accordingly supplied
to M/s. Nalini Drugs Distributor by issuing cash memo and E-way bill. It is however apparent
that the GST invoice was of a subsequent date than the date of seizure.
3. This Court, vide order dated 07.07.2021, after going through the Case Diary had
noticed that there was an issue as to whether the GST invoices are manufactured or genuine
and accordingly, directed the Investigating Officer to file a report. However, in the meantime,
an interim order was granted in favour of the petitioner.
4. After certain dates, the report was furnished to this Court. This Court vide order dated
05.04.2022 after perusal of the CD had, amongst others, made the following observations-
“4. As per the aforesaid order requiring the IO to submit a report of the GST invoices, it
appears that the IO had written a letter dated 21.03.2022. In reply to the said letter, the
office of the Deputy Commissioner of State Tax-cum-Assistant Commissioner of Tax,
Unit-C had given a reply dated 28.03.2022 from which it appears that the e-Way bill for
the goods, in question, were generated on 10.06.2021 at 11.38 am whereas, the vehicle
(Truck) with Registration No. NL-01-AB-9942 carrying the contrabands was intercepted
on 09.06.2021 at 10.10 pm when no relevant documents could be produced regarding
the goods. Another issue had appeared regarding the existence of M/S Nalini Drugs
Distributors, Karimganj which was the destination of the goods. To substantiate the
claim of the applicant regarding the authenticity of such existence, an RTI reply dated
25.11.2021 has been placed on record. The following queries were mad in the said
i) Whether any drug license has been issued to M/S Nalini Drug
iii) Proprietor of M/S Nalini Drug Distributor, Karimganj?
iv) Whether Sumit Dhar is running the license on behalf of its proprietor
6. The Case Diary contains another communication from the Inspector of Drugs, HQ,
Office of the Drugs Controller, Assam, Hengrabari, dated 27.10.2021 wherein the
1. The proprietor of M/S Nalini Drugs Distributor Sh. Anip Kanti Ghosh has
declared that he has not ordered the subject drug and has not signed in the
order copy (copy enclosed) and his D/L No. is D/OL/KMJ/3837 &
2. As per report of the Inspector of Drugs, Kamrup and Sr. Inspector of Drugs,
Kamrup it is to be noted that the invoices of M/s. Hematech Pharmaceuticals,
CK Azad Road, Panbazar, Guwahati issued to M/s. Nalini Distributors C/o. Dhar
Drug Agency, Shivbari Road, Karki with D/L/No.KM3/3837 & 3838 does not
exists as per office record.
3. The details of the firm M/S Nalini Drug Distributor is recorded as M/S. Nalini
Drug Distributor, Shivbari Road, P.O. & Dist: Karimganj with No. D/OL/KMJ/
7. It appears that there is a major contradiction with the contents of the aforesaid
communication dated 27.10.2021 of the Inspector of Drugs, HQ, Office of the Drugs
Controller, Assam and the reply to the RTI application dated 25.11.2021. Though the
reply to the RTI is on certain queries which will not directly on the issue, the contents of
the two communications of the authorities do not appear to be in conformity with each
8. Shri Bora, learned Senior Counsel submits that subsequent generation of bill can, at
best, be violation of the GST Act but cannot be termed to be a violation of the provision
of the NDPS Act and therefore, Section 21 of the NDPS Act may not be applicable. The
learned Senior Counsel further submits that though the seized articles in question may
be termed as psychotropic substance, it will come under the exception of Section 8(c)
and transportation of the same with necessary documents is available under proviso to
9. Shri Bora, learned Senior Counsel also draws the attention of this Court to the bill
issued by Nalini Drug Distributors (page 46), dated 08.06.2021 and the GST invoice
(page 97), dated 09.06.2021.
10. A careful perusal of both the documents would show that whereas the bill at page
46 has been issued by “Nalini Drug Distributors”, at page 97, the buyer’s details have
been stated as Nalini Distributors. Further, the address at page 46 is shown as Shib Bari
Road, Karimganj, in page 97, it is shown as C/O Dhar Drug Agency Shibbari Road.
Furthermore, the distributor’s license at page 46 is shown as D/L NoKMJ/3837/3838, in
page 97, it is DL No. : KM3/3837/3838 and the rubber stamp at page 46 also gives the
address as Sub Bari Road, Karimganj. Lastly, a perusal at page 46 of the document
would clearly show that the same was a blank document which has been filled up by
hand by inserting the details only for the purpose of annexing the said documents in the
bail application, inasmuch, as it is by the same hand and ink (Annexure F) has been
written. In the said document, the space for writing the amount has also been kept
blank.
11. All the aforesaid anomalies raise a serious doubt on the manner by which this Court
has been approached and it prima facie appears that at various stages, there have been
manipulations of documents and other materials.
12. In that view of the matter and for the greater interest of the society and taking into
consideration the amount of contrabands seized, namely, 1 Truck load of Eskuf cough
syrup consisting of 44,160 bottles in 276 cartons with each cartons containing 160
bottles without any valid documents, this Court directs the IO to make further
investigation, including a visit to the Karimganj to verify the existence or otherwise of
the consignee/receiver at Karimganj and submit a report by the next date.
13. An enquiry may also be made by the IO on the various documents/emails relating to
the applicant and other persons connected with this case and a verification exercise be
done with the authorities who have allegedly issued such communications/ documents.
In this regard, the IO may also call the applicant for further interrogation by maintaining
5. When the matter was considered on the date of hearing, the updated Case Diary was
produced which contains the statements of Shri Arup Kanti Ghosh, the proprietor of M/s.
Nalini Drugs Distributor along with the note of the IO, who had visited the location. The
proprietor has specifically stated that no consignment of the present nature was ever made
and all medicines for the Pharmacy are collected from local Stockist and on no occasion any
medicines were procured from beyond the Barrack Valley. The proprietor has also suspected
some foul-play regarding the license.
6. Shri Baidya, the learned counsel for the petitioner has submitted that after the interim
order dated 06.07.2021, the petitioner had appeared before the IO on 15.07.2021 and there
is no instance of any misuse. As regards the materials revealed in the updated Case Diary
including the statement of Shri Arup Kanti Ghosh, the learned counsel has submitted that,
perhaps to avoid any complicacy, the proprietor has simply tried to wriggle out of the matter.
He further submits that the petitioner cannot be held liable of misuse of the license of M/s.
7. On the other hand, Shri BB Gogoi, learned Additional Public Prosecutor, Assam has
submitted that from the very initiation of movement of the consignment involving a huge
number of bottles in cartoons which admittedly is a psychotropic substance under the NDPS
Act as the cough syrup contains a substance called Codeine, there are anomalies / illegalities
at different stages including GST invoices and therefore, the present may not be a fit case to
continue with the interim protection granted to the petitioner.
8. The submissions made by the rival parties have been carefully considered and the case
records perused. It appears that the thrust of the argument made on behalf of the petitioner
in support of the prayer for bail is that subsequent generation of bills can at best be violation
of the GST Act and cannot be violation of the NDPS Act. It is further been contended that
though the articles are psychotropic substance it will come under the exception of Section
8(c) of the Act and transportation of the same with necessary documents is available under
proviso to Rule 67(4) of the NDPS Rules.
9. After hearing the parties and on perusal of the materials on record, this Court finds
sufficient force in the argument made on behalf of the State. It is already on record that the
E-way bills were generated on 10.06.2021 at 11.38 AM whereas the Truck with registration
No. NL-01-AB-9942 carrying the contraband was intercepted on the previous day i.e.
09.06.2021 at 10.10 PM when no documents could be produced. The discrepancies regarding
the consignment being allegedly meant for M/s. Nalini Drugs Distributors, instead of being
resolved has in fact raised the degree of suspicion on the bona fide of the projected case of
the accused. The license no. of M/s. Nalini Drugs Distributor also seems to be interpolated as
recorded by this Court in the order dated 05.04.2022. The communication dated 27.10.2021
issued by the Inspector of Drugs, Headquarter specifically states that the invoices of M/s.
Hematech Pharmaceuticals do not exist as per office records. Interestingly, the invoices are
not issued to M/s. Nalini Drugs Distributors but to M/s. Nalini Distributors with D/L No.
KM3/3837 and 3838 which does not exist.
10. On the first blush, the contention made on behalf of the petitioner appears to be
acceptable. However, on the revelations made during the investigation, the matter has turned
up to be a very serious one which calls for a thorough and meticulous enquiry.
11. The offence involved in this case is one under the NDPS Act and the quantity involved
is a commercial quantity. The contraband involved is also chemical manufacture drugs. To be
more specific, the FIR itself reveals that the following recovery has been made-
ii. Total 44,160 bottles of cough syrup Eskuf (Codeine Phosphate &
Chlorpheniramine Malite syrup) 100 ml. Batch No. LESC-077 Mfg. dtd. 03-2021,
Expr. Dt. 02-2013 in 276 cartons, each carton contains 160 bottles suspected to
be NDPS (Narcotic Drugs and Psychotropic Substance).
iv. One ID Card in the name of Amal Das of ANM Pharmaceuticals, MT Road,
v. One mobile handset.
12. This Court finds force in the submission of the learned APP, Assam that offences under
the NDPS Act are part of an organized crime wherein difference roles are played by different
accused persons. Therefore, recovery or seizure cannot be held to be a sine qua non for the
arrest / detention or even for conviction if there are other convincing and corroborating
materials which in the present case are abundantly available.
13. This Court is of the view that it is a settled position of law that in a case involving the
NDPS Act various factors are to be taken into consideration like the quantity of the
contraband, nature of the substance, nature of involvement etc. In the present case, the
contraband is a commercial quantity and the substance is chemically manufactured drug.
Moreover, Section 37 of the NDPS Act lays down that before granting a bail, the relevant
factors are that the Court should come to a satisfaction that prima facie the petitioner is not
guilty of the offence and also the petitioner has to satisfy the Court that in case bail is
granted, he is not likely to commit further offence. The aforesaid two factors do not seem to
be fulfilled in the present case.
14. In that view of the matter and also taking into consideration the very object of the
enactment, namely to curb the menace of drugs and its ill effects on the society which has
the propensity to destroy the generation as a whole, this Court is of the opinion that no case
for grant of anticipatory bail is made out. Accordingly, the same stands rejected.
Consequently, the interim protection granted, vide order dated 07.07.2021 stands cancelled.
15. The IO of the case is accordingly directed to make all efforts to investigate the case so
that the persons involved in the heinous offence involved in the NDPS Act can be put to book,
strictly in accordance with law.
16. It is however clarified that the observation made are tentative in nature and shall not
cause prejudice to either of the parties in the trial.