Manipur High Court
Harshal Desai Aged About 55 Years vs The Narcotics Control Bureau (Ncb) … on 13 December, 2024
KHOIROM Digitally signed by
KHOIROM IN THE HIGH COURT OF MANIPUR
BIPINCHAN BIPINCHANDRA
Date: 2024.12.13
SINGH
AT IMPHAL
DRA SINGH 16:55:11 +05'30'
BAIL APPLICATION No. 12 of 2024
Harshal Desai aged about 55 years, S/o Praful Desai
resident of A-801, Suncity Apartment, Near Bhulka
Bhavan/Surya flats, Adajan, Surat, Gujarat - 395001.
.... Petitioner
- Versus -
The Narcotics Control Bureau (NCB) Imphal through its
Intelligence Officer, CPWD Quarters, Changangei,
Kongba Uchekon, Imphal West, Manipur - 795008.
.... Respondent
BEFORE
HON’BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. Osbert Khaling, Advocate
For the respondents : Mr. W. Darakishwor, Sr. PCCG
Date of hearing : 22.08.2024
Date of judgment &
order : 13.12.2024
Bail Application No. 12 of 2024 Page 1
JUDGEMENT & ORDER
(CAV)
[1] Heard Mr. Osbert Khaling, learned counsel appearing for the
petitioner and Mr. W. Darakishwor, learned senior PCCG appearing for the
respondent.
[2] The present application has been filed on behalf of Harshal
Desai under Section 439 of the Cr.P.C. 1973 with the following prayers:
(i) To issue notice to the respondent.
(ii) To grant regular bail u/s 439 Cr.P.C., 197 to release the
petitioner namely, Harshal Desai in connection with
NCB Crime No. 02/NCB/Imp/2023, dated 03.03.2023
U/s 8© & 9A read with Sec. 21©, 25A, 25 & 29 of the
ND & PS Act, 1985, and Additional Complaint dated
03.10.2023, U/s 9A, 25A, 26 and 29 of the ND & PS
Act.
(iii) Pass any order/direction which the Hon’ble Court
deems fit and proper in the facts and circumstances of
the case as to meet the end of justice.
[3] Brief facts of the case are that upon receiving secret
information on 03.03.2023, the Superintendent of NCB raid the house of
Jangminthang Guite, a resident of Moreh, Tengnoupal, 533 numbers of
plastic packets of Pseudoephidrine tablets labelled with Cetrizine
Hudrochloride Tabets 10 Mg Levocet manufactured by Sunview Biotech,
Gandhinagar were found from the kitchen of the house. Since the said
Bail Application No. 12 of 2024 Page 2
Jangminthang Guite was not present in the house at the time, his mother
namely, Mrs. Nemkhohat Guite was arrested.
In the statement of Nemkhohat Guite, the contraband was
received from one Sultani and her husband Abdul Wakil of Delhi. Further,
in the statement of Abdul Wakil, he obtained the said contraband from
Ahmedabad based firm namely, M/s Recover Healthcare located at Sarkhej,
Ahmedabad, Gujarat on 31.01.2023.
[4] Upon being conducted the M/s Recover Healthcare premises,
the NCB arrested 3 (three) persons namely, Mr. Nitin Panchal, Mr. Anil
Nayaka and Bhadresh Patel who was the owner of M/s Recover Healthcare
and other 2 (two) employees of the firm.
In the statements of Mr. Nitin Panchal, Mr. Anil Nayaka and
Bhadresh Patel, on 19.01.2023 the said contraband was sent by Ardor
Drugs Pvt. Ltd., village Songadh, District Tapi along with goods, official and
e-way bills issued by Ardor Drugs Pvt. Ltd. showing Admos-SR tablets.
Further, in the statement of Bhadresh Patel, Hetal Shah
rejected the goods received from Ardor Drugs Pvt. Ltd., to whom the same
were tried to sell out. Thereafter, Bhadresh Patel worked with Abdul Wakil
for the same labelling with Levocet in lieu of any Pseudoephedrine content
tablets for free transit. For the said deal of 15 lakhs Pseudoehedrine tablets,
Abdul Wakil made payment of Rs. 11.68 lakh in the bank account of M/s
Recover Healthcare with Bank of Baroda and Bhadresh Patel paid Rs. 5
lakhs to Ardor Drugs Pvt. Ltd. in the account of Bank of India. Further,
transportation of the said goods was made from Delhi to Imphal. Part of
Bail Application No. 12 of 2024 Page 3
the goods was exported to Myanmar and the remaining to Moreh from
where the same was seized by NCB, Imphal Manipur.
[5] On many occasions, Harshal Desai who is the managing
director of Ardor Drugs Pvt. Ltd. issued bogus invoices to M/s Recover
Healthcare and Bhadresh Patel, owner of the M/s Recover Healthcare got
commission upon such invoices without actual supply of goods. Bhadresh
Patel has been known to Abdul Wakil and they have done similar deal
successfully long time back. In connection with the alleged offence, Harshal
Desai along with its employee Mehul Desai were arrested by NCB, Imphal,
Manipur and presently in the judicial custody at Manipur Central Jail, Sajiwa.
[6] According to the petitioner, on 13.08.2023, the
petitioner/accused and another accused, Mehul Desai made a voluntary
statement under Section 67 of the NDPS and on the same day, the
petitioner has already retracted his so-called statement by letter of
retraction dated 13.08.2023 which has already been submitted on record of
Special Judge (NDPS), Manipur.
On 14.08.2023 the petitioner filed a remand objection being
registered as Cril. Misc. (B) No. 173 of 2023 before the Ld. Special Judge
(NDPS), Manipur for releasing the accused on bail; however the case was
rejected on the same day. Even though another remain objection was filed
on 16.10.2023 being registered as Cril. Misc(B) No. 249 of 2023 before the
same Court, the same was also rejected vide order dated 30.11.2023.
Further, a bail application being Bail Appln. No. 7 of 2024 was filed before
this High Court, but the same was withdrawn by the previous advocate on
Bail Application No. 12 of 2024 Page 4
05.02.2024 without entering into merit with liberty to file a fresh. Therefore,
the petitioner/accused filed the present application on the following
grounds:
(i) The so-called purported confessional statement of
the petitioner under Section 67 of NDPS Act is not
the voluntary statement. The signature obtained
upon the confessional statement has been taken by
coercion and under duress and the same is given
involuntarily and without the free will of the
applicant who has been made to testify against his
own self which is against the provisions of the law
and barred by Section 25 and 26 of the Indian
Evidence Act.
(ii) All the statements given before the Investigating
Officer during their custody are not admissible in
evidence in view of clear provision of law under
Section 25 and 26 of the Indian Evidence Act as well
as law laid down by the Hon’ble Apex Court in the
reportable judgment delivered in Criminal Appeal
No. 152 of 2023 [Tofan Singh V. State of Tamil
Nadu] and judgment of Hon’ble Apex Court reported
in 1984 (1) SC 284. Even otherwise the statements
of the co-accused and the present applicant do not
amount to statements u/s 67 of NDPS Act.
Bail Application No. 12 of 2024 Page 5
(iii) Except the so-called confessional statement, there is
no material against the present applicant who has
already retracted his so-called statement by letter of
retraction dated 13.08.2023 which has already been
submitted on record of Trial Court.
(iv) In the godown of M/s Recover Healthcare, there
were many other goods procured from other various
parties.
(v) The present applicant or any person from the Ardor
Drugs Pvt. Ltd. were not in contact with any drug
peddler or any other person namely, Abdul Wakil
and has never communicated or even seen Mr.
Abdul Wakil who is known to Bhadresh Patel from
M/s Recover Healthcare.
(vi) The present applicant nowhere attributed any role in
the alleged transaction using false invoices as
narrated by the prosecution case itself.
(vii) According to Bhadresh Patel, this was not the first
transaction. Not only that, they were in contact with
each other through Trade India, a B2B business
platform for a long time.
(viii) The Call Detail Reports collected by the Investigating
Agency reveals that the present applicant has
neither talked with Abdul Wakil at any point of time
Bail Application No. 12 of 2024 Page 6
till today. There is nothing wrong or offensive in thecertain periodical telephonic contact of the applicant
with Bhadresh Patel, Mehul Desai. It is not even the
case of prosecution that the applicant was having
any contact with Jangminthang Guite and his wife
Sultani.
(ix) Prima facie cases can be made out only on the basis
of the material which is legally admissible in
evidence. Inadmissible and irrelevant material
cannot be the basis of the prima facie case in
criminal jurisprudence.
(x) The Ld. Special Judge failed to deal with or even
consider the applicant’s written argument submitted
in support of Bail Application being Cril. Misc.(B) No.
249 of 2023.
(xi) The license of the Ardor Drug Pvt. Ltd. is still in
existence, which has never been revoked or
cancelled since the company has never breached
any conditions mentioned in the license.
(xii) The seized substances are neither the Narcotic nor
Psychotropic substances but the same is a simple
controlled substance and not governed by ND & PS
Act and therefore, no commercial quantity or
Bail Application No. 12 of 2024 Page 7
otherwise is prescribed for such controlled
substance.
(xiii) Bar under Section 37 of the ND & PS Act would not
be applicable in the present case and the same is
only applicable to cases under provisions of Section
19, 24 and 27A.
(xiv) Even Sections 9A, 25A, 26 and 29 of the ND & PS
Act are also not applicable on prima facie case itself
as there is no violation of license condition and there
has been no complaint or even inquiry from the Tax
Department. Furthermore, all the accounts and GST
returns are tallied.
(xv) It is well settled principle, that the bar under Section
37 of the NDPS Act would seize to exist and bail can
be granted even if the quantity involve dis
commercial quantity, if the Court is satisfied that
prima facie no offence is made out against the
accused after perusing the materials on record.
(xvi) The applicant has in fact no criminal antecedents at
all, however the applicant was implicated in false
case of NDPS at Surat, Gujarat by DRI, wherein the
applicant was released on bail by High Court of
Gujarat. The order remained confirmed by the
Bail Application No. 12 of 2024 Page 8
Hon’ble Supreme Court of India since the SLP by DRI
has been rejected by Apex Court.
(xvii) The presence of the applicant can be secured by
imposing suitable conditions upon him and for that
purpose, his jail custody is not required. It is a
settled principle of law that “bail is a rule ad jail is
an exception”. There is a big distinction between
pre-trial custody and post trial custody.
(xviii) The trial is likely to take a long time and keeping the
applicant behind the bar for an uncertain long period
would amount to pre-trial punishment to him which
directly violates his fundamental right enshrined
under Article 21 of the Constitution of India.
[7] Mr. Osbert Khaling, learned counsel appearing for the
petitioner further submits that the petitioner was arrested on 05.08.2023
and first remanded to judicial custody on 09.08.2023 in connection with
NCB Crime No. 02/NCB/Imp/2023, dated 03.03.2023 U/s 8(c) & 9A to be
read with 21(c), 25(A), 25 & 29 of the ND & PS Act, 1985 and till dater the
accused has been languishing at Manipur Central Jail, Sajiwa for nearly 14
months. When no prima facie case is made out, the accused must be
released on bail, but, even if prima facie case is made out, the accused
deserves to be enlarged on bail if his presence in the trial can be secured
by imposing necessary conditions. Further, there is undue delay in trial and
Bail Application No. 12 of 2024 Page 9
till date no framing of charges has been done after a span of 11 months
after having been filed the chargesheet.
After arrest, a person cannot be made a witness against
himself as the same has been barred under Article 30(3) of the Constitution
of India. Even otherwise, the other co-accused persons have already
retracted their respective statements. The entire case of the prosecution
against the applicant is fully based on the statement of co-accused
Bhadresh Patel and confessional statement of applicant himself, while he
was in custody. Both of these statements are not admissible in evidence
and there is no admissible material available against the applicant. The
present petitioner has been unnecessarily harassed by the respondent as
to the fact that even after chargesheet, the petitioner was detained under
PIT NDPS, just to keep him in jail even if bail is granted but the said
detention was set aside by this High Court on 26.07.2024.
[8] Mr. W. Darakishwor, learned senior PCCG appearing for the
respondents submits that the present petitioner (Harshal Desai) has
masterminded the entire modus operandi of this illegal trade business by
performing himself as the owner/director of M/S Ardor Drug Pvt. Ltd,
Ahmedabad, Gujarat. The seized Pseudoephedrine tablets fake labelled as
“CETRIZINE HYDROCHLORIDE TABLETS 10 MG LEVOCET” weighing
110.5kg was brought from Ahmedabad to Moreh via Delhi during the month
of February 2023 in violation of the existing laws in force under the
mastermind of the present petitioner, accused Harshal Desai, Bradesh Patel
in conspiracy with the other co-accused. The accused Harshal Desai is the
Bail Application No. 12 of 2024 Page 10
main kingpin behind this inter-state trafficking of pseudoephedrine tablets
from Gujarat to Myanmar, he was the main supplier who was directly
supplying the drugs to Myanmar through his associates- Mehul Desai,
Bradesh Patel, Abdul Wakil and other co- accused after misusing the unique
registration number allotted to its company Ardor Drugs Pvt. Ltd., in lure of
earning more money he diverted Pseudoephedrine to illicit channel.
The accused Harshal Desai is involved in the connivance with
Mehul Desai and Bradesh Patel for generating bogus bill of various
pseudoephedrine tablets. For such prior offences they had already been
arrested by the Directorate of Revenue Intelligence, Surat under Crime No.
1 of 2020 and they were on bail during the execution of arrest of warrant
issued by the Special Judge, ND & PS, Manipur.
It is also clear from the statement of one tempo driver as well
as from the statement of Mehul Desai that under the instruction of Harshal
Desai and Bradesh Patel 26 carton boxes were delivered from the Ardor
Drugs Pvt. Ltd., Songadh-Ukai Road, Tapi to M/s Recover Healthcare,
Sarkhej, Ahmedabad. There has been similar kind of seizure of 13 Lakh
Pseudoephedrine tablets affected in Sagaing Region of Myanmar in August
2020. Again 39 lakhs of pseudoephedrine tablets in the brand Colzen
containing Pseudoephedrine were seized in Champai, Mizoram in March,
2023.
The seized Pseudoephedrine tablets is not only controlled
medicine, but it is the main raw material for processing of
Methamphetamine (ATS) – a banned drug in neighbouring country
Bail Application No. 12 of 2024 Page 11
Myanmar. And as said earlier also, it is a cause of concern for National
Security. The seized 533 packets in the present case are the part of 1500
packets of Pseudoephedrine tablets that was manufactured by Ardor Drugs
Pvt. Ltd., Songadh, Tapi. The rest 967 packets got succeeded to go through
Moreh border to Myanmar. Thus, this case is also having international
linkage.
The present applicant is the main kingpin who has diverted
the huge quantity of Pseudoephedrine tablets into illegal channel which has
somehow crossed Myanmar border either from Mizoram side or Manipur
side. The accused Harshal Desai has criminal antecedents and he is on bail
in NDPS case No. 48/2020 registered at Principal District and Session Court,
Surat, Gujarat.
This is the crime committed by the petitioner while being
released on bail in connection with NDPS case no. 48/2020 registered at
Principal District and Session Court, Surat, Gujarat which was initiated by
DRI, Surat.
There is still various new aspects which are yet to be explored
to ascertain the further linkage or the source of the seized 110.5 kg of
Pseudoephedrine tablets, which will not be possible if the accused is granted
bail at this juncture. During the course of investigation, house search at the
residence of Nitin Panchal (one of the accused in the case from Gujarat)
was conducted by NCB and recover some documents of M/s Elite medical
store, Aizawl which surfaced in the instant case. Follow up was conducted
at M/s Elite Medical Store, Aizawl, Mizoram by team NCB, Guwahati on
Bail Application No. 12 of 2024 Page 12
dated 03/11/2023 and statement of the proprietor of M/s Elite store
recorded. Accordingly, letter vide NCB 02/NCB/Imp/2023 dated 03.11.2023
to the State Drug Controller, Mizoram, Aizawl was requested to enquire and
take necessary action as per D&C act and other relevant laws against
diversion of pseudoephedrine tablets. Directorate of Health Services-Food
& Drugs Administration wing- Mizoram vide order dated 21st Feb, 2024
cancelled the Drug License of Elite Medical store.
The enquiry was conducted at NCB, Ahmedabad on
12.12.2023 regarding details of URN issued to M/s Ardor Drug Pvt. Ltd.
Accordingly, letter issued to ZD, Ahmedabad on dated 19.12.2023 seeking
details on the URN issued by NCB, Ahmedabad. Further, letter was also
issued to the Zonal Director, NCB, Ahmedabad Zonal Unit on 15.03.2024
with a request to cancel the URN of M/s Ardor Drug Pvt Ltd issued by NCB
Ahmedabad Zonal Unit or any other URN issued to the accused. Previously,
NCB, Ahmedabad informed that proposal for cancellation of URN of M/s
Ardor Drug Pvt Ltd in 2021 was sent to concerned DDG(R) for violation of
the provision of RCS order 2013 as the company premises was raided by
DRI, Surat, July 2020 and mismatch in quantities of Ephedrine and
Pseudoephedrine found.
The statements of 6 (six) employees of M/s Ardor Drug Pvt.
Ltd. was recorded at NCB, Ahmedabad on 12.12.2023 to 14.12.2023, all the
6(six) employees have stated that details of record of procurement /
production/sales/marketing/transportatio of pseudoephedrine/ephedrine
Bail Application No. 12 of 2024 Page 13
are maintained and controlled by Harshal & Mehul Desai. All bills/invoices
are generated by Harshal and Mehul which clearly show that the employees
are made to work as per the instruction of Harshal and Mehul Desai.
Further investigation and financial investigation is going on to
trace and break the chain of illegal trade considering the gravity of the
offense committed by the petitioner which are serious in nature. Therefore,
considering the key role being played by the accused in the instant case,
mere long incarceration of an accused in judicial custody should not be a
ground to release the accused on bail as it will frustrate the whole objective
of stringent law laid down by the parliament to combat illegal trafficking of
drugs and will perpetuate to further crime, the same principle has been laid
in a plethora of cases.
The present petitioner/accused, Harshal Desai has admitted
in his statement during investigation that he used to generate tax invoice
in the name of Recover Healthcare but the products mentioned in the tax
invoice were supplied to some other parties. He repeatedly used to generate
false bills with the name of some other products for the supply of
pseudoephedrine-based tablet to Bradesh Patel to sell the said
Pseudoephedrine tablets. For the said purpose he paid 10 lakhs as
commission to Bradesh Patel which is corroborated with the bank account
statement.
[9] Furthermore, Mr. W. Darakishwor, learned senior PCCG
appearing for the respondent contended that the petitioner/accused
Harshal Desai has criminal antecedent and he is on bail in ND & PS Case
Bail Application No. 12 of 2024 Page 14
No. 48 of 2020 registered at Principal District and Session Court, Surat,
Gujarat. While the petitioner was on bail, he has committed the present
offence which was registered under NCB Crime No. 02/NCB/Imp/2023 U/s
8(c) & 9A R/w S. 21(c), 25A, 25 & 29 of ND & PS Act by the NCB, Division
Unit Imphal, Manipur. Because of being an antecedent criminal, the
petitioner/accused was detained under PIT, NDPS Act by issuing a detention
order dated 28.02.2024 through the Joint Secretary, Ministry of Finance and
the said detention order was confirmed from the Advisory Board.
The offences under the ND & PS Act are considered non-
bailable offences due to the serious nature of crime. Therefore, granting
bail under these sections is very complex and often depends on the specific
circumstances of the case.
In this regard, the learned senior PCCG appearing for the
respondent relied upon the following judgments:
W.P.(Cril) No. 11 of 2024 passed by the Division Bench of
the High Court of Manipur dated 26.07.2024 –
“[4] Mr. PN Lakhani, learned counsel appearing for the petitioner
raised only one ground in assailing the impugned detention orders.
The learned counsel submitted that the detaining authority has
knowledge that the petitioner was in judicial custody in connection
with a criminal case involving seizure of a commercial quantity of
contraband drugs, however, while passing the impugned detention
order, nothing has been mentioned or indicated in the said
detention order as well as in the grounds of detention that the
petitioner was likely to be released on bail. It has been submitted
that there was no cogent material before the detaining authority to
arrive at its subjective satisfaction that there was/is a real possibility
of the petitioner being released on bail, the face of the provisions
of Section37 of ND&PS Act, 1985. The learned strenuously
submitted that there was total non-appliance of mind on the part
of the detaining authority and the impugned detention order had
been passed in the mechanical manner and as such, the same is
liable to be quashed and set aside.
Bail Application No. 12 of 2024 Page 15
[7] In the present case, the petitioner was already arrested and
kept in judicial custody in connection with the seizure of a
commercial quantity of narcotic drugs and therefore, Section 37 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 would
have application and grant of bail would be subject to the stringent
conditions provided thereunder. Nothing is mentioned in the
impugned detention order that the detaining authority has arrived
at his subjective satisfaction that the petitioner is likely to be
released on bail. Only in the grounds of detention, the detaining
authority merely referred to the fact that a bail application had been
filed without deciding whether there was a likelihood of the
petitioner being released on bail, notwithstanding the applicability
of section 37 of the ND&PS Act and passed the impugned detention
order. Accordingly, we are of the considered view that the detaining
authority passed the impugned detention order without application
of mind and in a mechanical manner and on this ground alone, the
impugned detention orders are liable to be quashed and set aside.”
PR Despande V. Maruti Balaram Haibatti [(1998) 6 SCC
507] –
[5] Relying on those decisions Agrawal, J speaking for the two-
judge bench in RN Gosain v Yashpal Dhir has observed thus: (SCC
Ppp. 687-88 para 10)
“10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of
election which postulates that no party can accept and
reject the same instrument and that ‘a person cannot say
at one time that a transaction is valid and thereby obtain
some advantage, to which he could only be entitled on the
footing that it is valid, and then turn round and say it is
void for the purpose of securing some other advantages.”
Asante Pinket Owusu V. Narcotics Control Bureau [(1994)
6 SCC 731] –
3. At the outset, learned counsel appearing on behalf of the
applicant submitted that rigors of Section 37 of the NDPS Act will
not apply to the present case, since the recovery is that of a
controlled substance.
4. The learned counsel submitted that the complaint has been
filed and charges have been framed by the learned Trial Court, and
till date only three witnesses have been examined. So far as,
material witnesses are concerned, none have been examined till
date. He stated that the way and the manner in which the trial is
proceeding it is likely to take substantial time.
5. The learned counsel submitted that the applicant is in
incarceration since the date of arrest, i.e., 05.11.2018, which is
more than five years.
Bail Application No. 12 of 2024 Page 16
20. It is also crucial to note that maximum punishment, without
any minimum, provided for in Section 25A of the NDPS Act is
imprisonment for a term which may extend to 10 years with fine
which may extend to 1,00,000/-.
21. The Hon’ble Supreme Court, while taking note of the delay
in disposal of cases under the NDPS Act, had issued certain
directions, subject to general conditions, in Supreme Court Legal
Aid Committee (Representing Undertrial Prisoners) v. Union of
India: (1994) 6 SCC 731 which are reproduced as under:
“15……………………………………………………………………..
(i) Where the under trial is accused of an offence(s) under
the Act prescribing a punishment of imprisonment of five
years or less and fine, such an under trial shall be released
on bail if he has been in jail for a period which is not less
than half the punishment provided for the offence with which
he is charged and where he is charged with more than one
offence, the offence providing the highest punishment. If the
offence with which he is charged prescribes the maximum
fine, the bail amount shall be 50% of the said amount with
two sureties for like amount. If the maximum fine is not
prescribed bail shall be to the satisfaction of the Special
Judge concerned with two sureties for like amount.
(ii) Where the under trial accused is charged with an
offence(s) under the Act providing for punishment exceeding
five years and fine, such an under trial shall be released on
bail on the term set out in (i) above provided that his bail
amount shall in no case be less than Rs. 50,000 with two
sureties for like amount.
(iii) Where the under trial accused is charged with an
offence(s) under the Act punishable with minimum
imprisonment of ten years and a minimum fine of Rupees
one lakh, such an under trial shall be released on bail if he
has been in jail for not less than five years provided he
furnishes bail in the sum of Rupees one lakh with two
sureties for like amount.
(iv) Where an under trial accused is charged for the
commission of an offence punishable under Sections 31 and
31-A of the Act, such an undertrial shall not be entitled to be
released on bail by virtue of this order.”
22. Section 436A of the CrPC provides that if an accused has
undergone detention for a period extending up to one half of the
maximum period of imprisonment specified for that offence under
Bail Application No. 12 of 2024 Page 17
that law, he shall be released by the Court on his personal bond
with or without sureties. Section 436A of the CrPC reads as follows:
“[436-A. Maximum period for which an undertrial prisoner
can be detained.– Where a person has, during the period of
investigation, inquiry or trial under this Code of an offence
under any law (not being an offence for which the
punishment of death has been specified as one of the
punishments under the law) undergone detention for a
period extending up to one-half of the maximum period of
imprisonment specified for that offence under that law, he
shall be released by the Court on his personal bond with or
without sureties:
Provided that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period
longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be
detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided
for the said offence under the law.
Explanation.–In computing the period of detention under
this section for granting bail, the period of detention passed
due to delay in proceeding cause by the accused shall be
excluded.]”
23. Undisputedly, the applicant in the present case has
undergone detention for a period in excess of one-half of the
maximum period of imprisonment specified for the offence under
Section 25A of the NDPS Act.”
Union of India V. Prateek Shukla [(2021) 5 SCC 430] –
“4. It has been alleged that the disclosure revealed that a huge
quantity of the controlled substance, acetic anhydride, was
purchased and diverted to a godown situated at Village Karheda,
Ghaziabad. During the search and seizure of the premises, a
quantity of 9650 kg of acetic anhydride was alleged to have been
recovered and empty drums of acetic anhydride were also found.
Notices under Section 67 of the NDPS Act were also issued to one
Shamsuddin and Bismillah Khan Ahmadzai. It has been alleged that
the respondent, the co-accused Himanshu Rana and Shamsuddin
disclosed that Bismillah Khan Ahmadzai is a Director of the company
involved in its day to day affairs. Bismillah Khan Ahmadzai was
apparently residing in the US and was arrested on his return to
India. The residential premises of Shamsuddin Qarizada were
searched and 500 gm of acetic anhydride was allegedly recovered.
Bail Application No. 12 of 2024 Page 18
8.1. The respondent is alleged to be a part of an international
syndicate involved in a diversion of a controlled substance.
8.2. The respondent is a Director of Altruist Chemicals Pvt. Ltd.
8.3. Having regard to the incriminating material which has been
recovered during the course of the investigation, as set out in the
complaint, the involvement of the respondent prima facie has been
shown to exist.
8.4. In a matter involving serious violations of the NDPS Act, the
Single Judge of the High Court was not justified in granting bail.
8.5. Under the NDPS Act, the burden of proof lies on the accused
and not the prosecution and the High Court has wrongly reversed
the burden of proof.
8.6. Absolutely no valid reasons have been indicated in the
judgment¹ of the Single Judge for the grant of bail.
12. Ex facie, there has been no application of mind by the High
Court to the rival submissions and, particularly, to the seriousness
of the allegations involving an offence punishable under the
provisions of the NDPS Act. Merely recording the submissions of the
parties does not amount to an indication of a judicial or, for that
matter, a judicious application of mind by the Single Judge¹ of the
High Court to the basic question as to whether bail should be
granted. The provisions of Section 37 of the NDPS Act provide the
legal norms which have to be applied in determining whether a case
for grant of bail has been made out. There has been a serious
infraction by the High Court of its duty to apply the law. The order
granting bail is innocent of an awareness of the legal principles
involved in determining whether bail should be granted to accused
of an offence under the NDPS Act. The contention of the respondent
a person that he had resigned from the company, Altruist Chemicals
Pvt. Ltd., must be assessed with reference to the allegations in the
criminal complaint which has been filed in the Court of the District
and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The
relevant part of the complaint reads as follows:
“18. That during investigation of the case, letter dated 27-
11-2018 was sent to the Registrar of Companies for
providing details of the Directors, etc. of the company in
question i.e. M/s Altruist Chemicals Pvt. Ltd. and vide its
report dated 3-12-2018 Registrar of Companies provided
the said information and from the perusal of said
information/documents, it reveals that accused Prateek
Shukla and Bismillah Khan are the Directors. Accused
Himanshu Rana was also Director but he has resigned from
the directorship. From the perusal of the documents, it also
reveals that they had registered the company i.e. Altruist
Chemical Pvt. Ltd. at 001. Block Ab-Sector-45, Noida, which
is a residential area and accused persons also obtainedBail Application No. 12 of 2024 Page 19
Unique Registration No. from the NCB on the abovesaid
premises.”
14. For the above reasons, we are of the view that the High
Court has misapplied the law to the facts in arriving at a decision
for the grant of bail to the respondent. We accordingly allow the
appeal and set aside the impugned judgment and order of the High
Court dated 7-5-20191. As a consequence, the bail which has been
granted by the High Court to the respondent shall stand cancelled.
The respondent shall surrender forthwith as a result of the g
cancellation of bail by the present order of this Court.”
Bail Application No. 5030 of 2012 [Karuthan Ponnaiya &
Anr. V. Senior NCB, State of Kerala] passed by the High
Court of Kerala –
“5. It is not disputed that Ephedrine is a controlled substance.
There is no categorization of small quantity or commercial quantity
so far as it relates to controlled substances. As can be seen from
the definition of commercial quantity in Section 2 (viia) of the Act it
is clear that it applies only to narcotic drugs or psychotropic
substances. Section 9A deals with the power to control and regulate
controlled substances, which reads:
“(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 B.A. No: 5030/2012
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 licenses, 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.”
The contravention of orders made under section 9A is made
punishable under section 25A. The punishment prescribed is
rigorous imprisonment for a term which may extend to ten years
and fine which may extend to one lakh B.A. No: 5030/2012 rupees.
8. The fact that the rigour mentioned in section 37 (1)(b) of the Act
is not applicable to the facts of the case, does not automatically
lead to any conclusion that the B.A. No: 5030/2012 petitioner is
entitled to get bail. Section 37(2) makes it clear that the limitations
on granting of bail specified in clause (b) of sub-section (1) are in
addition to the limitations under the Code of Criminal Procedure or
any other law for the time being in force, for the granting of bail.
Bail Application No. 12 of 2024 Page 20
Therefore, it is manifest that even if the rigour under section
37(1)(b) is not applicable, the Court can refuse bail, if the Court is
of the view that the accused persons are likely to flee or will become
unavailable to put them to trial or if there are other circumstances
justifying negation of bail. It is pointed out that the final report in
this case was filed on 22.06.2012 and it is now pending before the
Sessions Court as S.C. No: 681/2012. It is also pointed out that the
petitioners are actually carriers or peddlers of the controlled
substance and that, it was not carried by them innocuously without
knowing the gravity of the offence. It is also pointed out that the
petitioners are from Tamil Nadu and are B.A. No: 5030/2012
persons having international connections and so once they are
released on bail it would be practically impossible to secure their
presence to put them to trial.
10. I have carefully examined the entire available records and
particularly the allegations levelled against the accused. The nature
and gravity of the offence, possibility B.A. No: 5030/2012 of the
accused to flee from justice and the likelihood of their indulging in
commission of similar offences as alleged by the prosecution are
also taken note of. Considering all these aspects, I am not inclined
to grant bail to the accused, and hence this application is dismissed.
The learned trial Judge is directed to try and dispose of the case at
the earliest.”
[10] In support of the present case, Mr. Osbert Khaling, learned
counsel appearing for the petitioner relied upon the following judgments:
Niranjan Jayantilal Shah V. Directorate of Revenue
Intelligence [2013 SCC OnLine 4608] –
“6. During the course of arguments, it was fairly conceded by
learned counsel for the respondent that bar of Section 37 of the
NDPS Act is not attracted in the present case since as per the
prosecution 100 kgs. of Pseudoephedrine was recovered which is a
controlled substance within the meaning of Section 2(vii) (b) of the
Act. Pseudoephedrine is not a narcotics drug as envisaged under
Section 2(vil)(a) of the Act. In N.C. Chellathambi (supra) one tonne
of ephedrine was recovered, in Ajay Aggarwal (supra) recovery was
of 1600 liters of Acctic Anhydride, In Rajiv Kumar Sukha (supra)
recovery was of 25 kgs powder ephedrine hydrochloride, in Falyaz
Ahmed Rasool Shaikh (supra) and another recovery was of 290 kgs
of pseudoephedrine, in Chakrapani Dutt (supra) recovery was of
100 liters of Acctic Anhydride, and in all these cases since the
accused had remained in custody for certain period, they were
released on ball. As regards Rizwan Ahmed, where the bail
application was dismissed, it is fairly conceded by learned counsel
for DRI that DRI had not taken any plea that the petitioner was not
entitled to bail due to rigour of Section 37 of the NDPS Act on which
ground alone the application was dismissed, however, it wasBail Application No. 12 of 2024 Page 21
submitted that since the SLP has been dismissed, therefore, the
petitioner is not entitled for ball. In Department of Customs (supra)
relied upon by learned counsel for the petitioner, it was observed
that the judgment in Rizwan Ahmad is contrary to the explicit
language of Section 37 of NDPS Act and the same is per incuriam.
7. Keeping in view the totality of facts and circumstances of the
case, coupled with the fact that the petitioner is in custody since
15th December, 2011, he is admitted to bail on his furnishing
personal bond in the sum of Rs. 50,000/- with one surety in the like
amount to the satisfaction of the concerned Trial Court. Petitioner
shall deposit his passport, If any, with the Trial Court and shall not
leave the country without the permission of the concerned Trial
Court. He is further directed to furnish his current address to DRI
and in case of any change in address, DRI be informed
immediately.”
Rafael Palarox Garcia V. Union of India & Anr. [2008 SCC
OnLine Bom 1353 : (2008) 6 AIR Bom R. 709 : (2009) 2 AIR
Jhar R (NOC 518) 177 : 2009 Cri LJ 446] –
“29. There is extensive amendment introduced in N.D.P.S. Act.
The offence falling under Section 9-A read with Section 25-A is
punishable with imprisonment which may extend to 10 years and
also fine which also may extend to Rs. one lac. There was an
embargo on the powers of the Court in granting ball under the old
provisions of Section 37(1)(b) of the Act. From Section 37(1)(b) the
term “imprisonment of five years or more” has been deleted and
substituted by “for offence under Section 19 or Section 24 or
Section 27-A and also for offences involving commercial quantity”,
the case of the Applicant is no more covered by Section 37(1)(b) of
the Act. The concept of commercial quantity does not apply to
controlled substance in view of the provisions relating to
commercial quantity specially Section 2(viia) and Section 2(vild) of
the Act and the notification issued by the Government specifying
the small quantities and commercial quantities also shows that this
concept is peculiar to Narcotic Drugs and Psychotropic Substances.
30. In view of the above legal position and the decision in the
case of Shreeniwas Bansidhar Somani (supra), I am inclined to
grant bail to the Applicant.
31. The Applicant Rafael Palafox Garcia to be released on bail
in the sum of Rs.1,00,000 (Rs. one lac Only) with one or two
sureties to make up the said amount. The sureties shall be local
sureties. Before being released on bail the Applicant shall inform
the NCB office the address at which he will reside during the period
that he is on bail. Any change in the address shall also be
communicated to the NCB within two days. The Applicant shall
report to the NCB office once in a week, till conclusion of the trial.”
Bail Application No. 12 of 2024 Page 22
Sanjeev Chandra Agarwal & Anr. V. Union of India [(2021)
20 SCC 57] –
“3. The factual position is that no narcotic drugs or psychotropic
substances were recovered from the premises of the two
appellants. As per the prosecution, 4 kg of Acetic Anhydride
(Controlled Substance) was allegedly found from the premises of
the appellants located at Gyan Scientific Agency, Varanasi. The High
Court was not correct in relying on the statements made by other
accused under Section 67 of the NDPS Act, in light of the judgment
of this Court in Tofan Singh v. State of T.N.2 It is pointed out that
the charges under Sections 9-A and 25 of the NDPS Act have been
framed and to this extent there is no challenge and dispute.”
State of Haryana V. Samarth Kumar [2022 SCC OnLine SC
2087] –
“7. The order of the Special Court granting regular bail to the
respondents shows that the said order was passed in pursuance of
the anticipatory bail granted by the High Court. Therefore, the same
cannot be a ground to hold that the present appeals have become
infructuous.”
Criminal Appeal No. 2790 of 2024 [Sheikh Javed Iqbal
@ Ashfaq Ansari @ Javed Ansari V. State of Uttar
Pradesh] passed by the Hon’ble Supreme Court –
“29. Going back to K.A. Najeeb (supra), this Court thereafter
proceeded to hold that Section 43D(5) of the UAP Act does not oust
the ability of the constitutional courts to grant bail on grounds of
violation of Part III of the Constitution. Long incarceration with the
unlikelihood of the trial being completed in the near future is a good
ground to grant bail. This Court also distinguished Section 43D(5)
of the UAP Act from Section 37 of the NDPS Act. It has been held
as follows:
17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does not
oust the ability of the constitutional courts to grant bail on
grounds of violation of Part III of the Constitution. Indeed,
both the restrictions under a statute as well as the powers
exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings,
the courts are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial
part of the prescribed sentence. Such an approach would
safeguard against the possibility of provisions like Section
43-D(5) of the UAPA being used as the sole metric for denial
of bail or for wholesale breach of constitutional right to
Bail Application No. 12 of 2024 Page 23
speedy trial.
18. Adverting to the case at hand, we are conscious of the
fact that the charges levelled against the respondent are
grave and a serious threat to societal harmony. Had it been
a case at the threshold, we would have outrightly turned
down the respondent’s prayer. However, keeping in mind
the length of the period spent by him in custody and the
unlikelihood of the trial being completed anytime soon, the
High Court appears to have been left with no other option
except to grant bail. An attempt has been made to strike a
balance between the appellant’s right to lead evidence of its
choice and establish the charges simultaneously beyond any
the doubt and respondent’s rights guaranteed under Part III
of our Constitution have been well protected.
19. Yet another reason which persuades us to enlarge the
respondent on bail is that Section 43-D(5) of the UAPA is
comparatively less stringent than Section 37 of the NDPS
Act. Unlike the NDPS Act where the competent court needs
to be satisfied that prima-facie the accused is not guilty and
that he is unlikely to commit another offence while on bail;
there is no such precondition under UAPA. Instead, Section
43-D(5) of the UAPA merely provides another possible
ground for the competent court to refuse bail, in addition to
the well-settled considerations like gravity of the offence,
possibility of tampering with evidence, influencing the
witnesses or chance of the accused evading the trial by
absconsion, etc.
W.P.(Cril) No. 11 of 2024 passed by the Division Bench of
the High Court of Manipur dated 26.07.2024 –
“[4] Mr. PN Lakhani, learned counsel appearing for the petitioner
raised only one ground in assailing the impugned detention orders.
The learned counsel submitted that the detaining authority has
knowledge that the petitioner was in judicial custody in connection
with a criminal case involving seizure of a commercial quantity of
contraband drugs, however, while passing the impugned detention
order, nothing has been mentioned or indicated in the said
detention order as well as in the grounds of detention that the
petitioner was likely to be released on bail. It has been submitted
that there was no cogent material before the detaining authority to
arrive at its subjective satisfaction that there was/is a real possibility
of the petitioner being released on bail, the face of the provisions
of Section37 of ND&PS Act, 1985. The learned strenuously
submitted that there was total non-appliance of mind on the part
of the detaining authority and the impugned detention order had
been passed in the mechanical manner and as such, the same is
liable to be quashed and set aside.
Bail Application No. 12 of 2024 Page 24
[7] In the present case, the petitioner was already arrested and
kept in judicial custody in connection with the seizure of a
commercial quantity of narcotic drugs and therefore, Section 37 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 would
have application and grant of bail would be subject to the stringent
conditions provided thereunder. Nothing is mentioned in the
impugned detention order that the detaining authority has arrived
at his subjective satisfaction that the petitioner is likely to be
released on bail. Only in the grounds of detention, the detaining
authority merely referred to the fact that a bail application had been
filed without deciding whether there was a likelihood of the
petitioner being released on bail, notwithstanding the applicability
of section 37 of the ND&PS Act and passed the impugned detention
order. Accordingly, we are of the considered view that the detaining
authority passed the impugned detention order without application
of mind and in a mechanical manner and on this ground alone, the
impugned detention orders are liable to be quashed and set aside.”
Noor Aga V. State of Punjab & Anr. [(2008) 16 SCC
417] –
“67. The appellant contended that the purported confessions
recorded on 2-8-1997 and 4-8-1997 were provided by an officer of
the Customs Department roughly and later the same were written
by him under threat, duress and at gunpoint and had, thus, not
been voluntarily made. The High Court should have considered the
question having regard to the stand taken g by the appellant. Only
because certain personal facts known to him were written, the
same by itself would not lead to the conclusion that they were free
and voluntary.
68. Clause (3) of Article 20 of the Constitution provides that no
person accused of any offence shall be compelled to be a witness
against himself. Any confession made under Section 108 of the
Customs Act must give way to Article 20(3) wherefor there is a
conflict between the two. A retracted confessional statement may
be relied upon but a rider must be attached thereto, namely, if it is
made voluntarily. The burden of proving that such a confession was
made voluntarily would, thus, be on the prosecution. It may not be
necessary for us to enter into the question as to whether the
decisions of this Court that a Customs Officer is not a police officer
should be revisited in view of the decision of this Court in Balkrishna
Chhaganlal Soni v. State of W. B. 34, wherein it was stated: (SCC
pp. 572-73, para 12) …”
Sanjay Chandra V. Central Bureau of Investigation
[(2012) 1 SCC 40] –
“40. The grant or refusal to grant bail lies within the discretion
of the court. The grant or denial is regulated, to a large extent, by
the facts and circumstances of each particular case. But at the same
time, right to bail is not to be denied merely because of the
sentiments of the community against the accused. The primaryBail Application No. 12 of 2024 Page 25
purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him,
pending the trial, and at the same time, to keep the accused
constructively in the custody of the court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the
court and be in attendance thereon whenever his presence is
required.
41. This Court in Gurcharan Singh v. State (Delhi Admn.)
observed that two paramount considerations, while considering a
petition for grant of bail in a non-bailable offence, apart from the
seriousness of the offence, are the likelihood of the accused fleeing
from justice and his tampering with the prosecution witnesses. Both
of them relate to ensure the fair trial of the case. Though, this
aspect is dealt by the High Court in its impugned order, in our view,
the same is not convincing.
42. When the undertrial prisoners are detained in jail custody
for an indefinite period, Article 21 of the Constitution is violated.
Every person, detained or arrested, is entitled to speedy trial, the
question is: whether the same is possible in the present case.
43. There are seventeen accused persons. Statements of
witnesses run to several hundred pages and the documents on
which reliance is placed by the prosecution, are voluminous. The
trial may take considerable time and it looks to us that the
appellants, who are in jail, have to remain in jail longer than the
period of detention, had they been convicted. It is not in the interest
of justice that the accused should be in jail for an indefinite period.
No doubt, the offence alleged against the appellants is a serious
one in terms of alleged huge loss to the State exchequer, that, by
itself, should not deter us from enlarging the appellants on bail
when there is no serious contention of the respondent that the
accused, if released on bail, would interfere with the trial or tamper
with evidence. We do not see any good reason to detain the
accused in custody, that too, after the completion of the
investigation and filing of the charge-sheet.”
[11] It is admitted position of fact and law that the seized articles
as mentioned in the present case are controlled drugs as such, Section 37
of the ND & PS Act is not applicable and the accused/petitioner and his co-
accused are right now languishing in jail for about one and half years, but
considering the nature of the case, the prosecution have taken the steps
leading to the filing of charge sheet promptly and the Ld. Trial Court also
conducted the case promptly without wasting time.
Bail Application No. 12 of 2024 Page 26 [12] Heard the learned counsels appearing for the parties at length
and also perused the application and replied affidavit. The allegation against
the two accused persons namely Mehul Desai and Harshal Desai, who are
said to be a former Director as well as an employee and one of the Directors
of the company viz, Ardor Drugs Pvt. Ltd respectively (hereinafter the
applicant no. 1 and 2 respectively), is that they were actively involved in an
illegal supply of Pseudoephedrine (a controlled substance under ND&PS
Act) based tablets to the other accused Bhadresh Patel of M/S Recover
Healthcare.
As per the Final Report, the said Ardor Drugs Pvt. Ltd
prepares/manufactures pharmaceutical formulations including
Pseudoephedrine containing formulations like Asifed, Phifed, etc. and that
the two accused/applicants were actively involved in an illegal supply of a
huge quantity of Pseudoephedrine based Phifed tablets. It is alleged that
the accused/applicants were involved in supplying 15 lakhs of the said
Phifed tablets inside 26 carton boxes to the said accused namely Bhadresh
Patel, owner of M/S Recover Healthcare on 19/01/2023 under a fake billing
of Admos-SR. It is alleged that the accused/applicants gave commission of
Rs. 1 per strip of ten tablets of Pseudoephedrine to the said accused
Bhadresh Patel for accepting the bogus billings/tax invoices. It is alleged
that as per Stock Register of the company Ardor Drugs Pvt. Ltd, the
company purchased a raw material namely, Pseudoephedrine
Hydrochloride powder from one GC Chemie Pharmie Ltd., Mumbai Andheri
for manufacture of said Asifed, Phifed and a scrutiny of the Tax invoices
Bail Application No. 12 of 2024 Page 27
Report from said GC Chemie Pharmie Ltd. revealed that there was
unaccounted distribution of more than 2 crores Pseudoephedrine based
drugs (Asifed, Phifed) by the Ardor Drugs Pvt. Ltd.
It is alleged that the accused was actively involved in supply
of said Pseudoephedrine based tablets under bogus bills or by generating
fake bills with the name of some other products and by actually supplying
the products mentioned in the bills/tax invoices in the name of M/S Recover
Healthcare to some other persons, for which an amount of Rs. 10 lakhs was
paid to the account of M/S Recover Healthcare as a commission for
accepting fake/bogus bills. It is also alleged that the Ardor Drugs Pvt. Ltd.
used one “Bhavna Roadways” to show the transportation of drugs to the
M/S Recover Health care looked genuine, but in that transportation, it sent
only carton boxes without any medicinal stuffs mentioned in the invoices
but filled with pieces of marbles and scraps to increase the weight.
Photographs of such carton boxes containing pieces of marbles and scraps
which were sent by the Ardor Drugs Pvt. Ltd to the M/S Recover Healthcare,
having the stickers of Bhavna Roadways are said to have been produced by
one Kirti Kumar Patel (apparently a staff of M/S Recover Health care),
whose statement has been recorded under Section 67 of the NDPS Act. As
per his said statement, M/S Recover Health care received only 1500 packets
of Phifed tablets containing Pseudoephedrine, which were sent by the Ardor
Drugs Pvt. Ltd in the billing of Admos-SR on 19/01/2023 and no other
pharmceutical drugs from 2020 till 2022 but the relevant record at M/S
Recover Health care shows false entry for receipts of other pharmaceutical
Bail Application No. 12 of 2024 Page 28
drugs Asifed T, Bromofed and Prasma including Phifed from the Ardor Drugs
Pvt. Ltd. when the latter has not actually supplied the said other drugs.
[13] On further perusal of the pleadings, it is also seen that the
present accused/petitioner was involved in connivance with Mehul Desai
and Bhadresh Patel for generating bogus bills of varioius Pseudoephedrine
tablets and its salt. Because of this, they had already been arrested in one
Directorate of Revenue Intelligence (DRI) Surat Crime No. NDPS 01/2020
and they were on bail during the execution of arrest warrant issued by the
Ld. Special Judge (ND & PS), Manipur.
[14] The Ld. Special Court (ND & PS), after hearing the parties,
rejected the bail application of the present accused and another Shri Mehul
Desai and in consideration of the present application, this Court is of the
opinion that the observation made in rejecting the said bail application
needs to take consideration and for the same, the para No. 5 & 6 of the
impugned order of the Ld. Special Judge (ND & PS), Manipur is reproduced
herein below:
“5. It is the settled position of law that the provisions of the
Drugs and Cosmetics Act, 1940 and the Narcotic Drugs and
Psychotropic Substances Act, 1985 are in addition to the provisions
of each other i.e. provisions of both the Acts are required to be
simultaneously complied with in relation to pharmaceutical bulk
drugs and pharmaceutical formulation which also fall under the
ambit of the NDPS Act, 1985 (Mohd. Sahabuddin & Another V. State
of Assam (2012) 13 SCC 491, Union of India and another V. Sanjeev
V Deshpande (2014) 13 SCC 1). It is to be noted that mere holding
a license under the Dugs and Cosmetics Act and the Rules framed
thereunder does not provide any immunity from the rigors of the
applicability of the NDPS Act and the Rules framed thereunder.
6. It appears prima facie from the materials on record
including the statements of the witnesses under section 67 of the
NDPS Act, that the accused persons/applicants, who are admittedly
ex-Director/employee and one of the Directors of the companyBail Application No. 12 of 2024 Page 29
namely Ardor Drugs Pvt. Ltd, are persons actively engaged for sale
or for distribution of pharmaceutical formulations, which apparently
include drugs and substances covered under the ambit of the
Narcotic Drugs and Psychotropic Substances Act, 1985 and that
they were actively involved in falsifying the accounts or records of
the company by supplying the said Pseudoephedrine (controlled
substance under ND&PS Act) based Phifed tablets in the name of
another non-offending drug ADMOS-SR under a bogus or fake
bill/tax invoices. It appears prima facie from materials on record
that the two (2) accused persons are actively involved in trafficking
of the said pseudoephedrine based pharmaceutical drugs. As per
record, the stage of the case is production of the rest of the accused
and charge hearing.”
[15] After going through the above observation made by the Ld.
Special Judge (ND & PS), Manipur, I am of the considered view that the Ld.
Special Judge’s observation and reasoning in dismissing the bail application
of the accused/petitioner is reasonable enough considering the seriousness
of the allegation made against the present accused.
[16] I have carefully examined the entire available records,
impugned order of the Ld. Special Judge (ND & PS), Manipur and
particularly, the allegations levelled against the accused as narrated above.
In view of the nature and gravity of the offence, I am not inclined to allow
the present bail application filed by the present accused/petitioner.
Hence, this application is dismissed with observation that the
Ld. Trial Judge is directed to try and dispose of the case at the earliest.
Liberty is given to the petitioner/accused to approach this Court, if the Trial
Court failed to conclude the trial at the reasonable time.
JUDGE
FR/NFR
Bipin
Bail Application No. 12 of 2024 Page 30