Court grants bail to petitioners due to prosecution's delay in filing charge sheet, substance quantity not commercial

Syed Musafar Sadiq, S.M. Sirajudeen, V. Packiakumar Versus The Intelligence Officer, Directorate of Revenue Intelligence (DRI)

Syed Musafar Sadiq, S.M. Sirajudeen, V. Packiakumar Versus The Intelligence Officer, Directorate of Revenue Intelligence (DRI) - TMI Issues Involved:
1. Legality of the extension of the investigation period and judicial custody beyond 60 days.
2. Determination of whether the seized substances constitute a commercial quantity.
3. Entitlement of the petitioners to bail under Section 167(2) of Cr.P.C.

Detailed Analysis:

1. Legality of the Extension of the Investigation Period and Judicial Custody Beyond 60 Days:

The petitioners challenged the extension of the investigation period from 60 to 180 days by the Special Court, arguing that it was done "in a single order" without seeking a fresh report from the Public Prosecutor, which violated the procedure established by law and the decision of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602. The petitioners contended that the charge sheet was filed after 175 days, which was beyond the permissible period of 60 days for offenses involving controlled substances like Pseudo Ephedrine.

The court acknowledged that the prosecution agency had to file the complaint within 60 days for offenses punishable with imprisonment up to 10 years, as per Section 167(2) Cr.P.C. Since the complaint was filed beyond 60 days, the petitioners' indefeasible right to bail had accrued immediately after the expiry of the 60 days.

2. Determination of Whether the Seized Substances Constitute a Commercial Quantity:

The prosecution argued that the seized contraband of Alprazolam (9990 tablets) and Pseudo Ephedrine (23.900 kg) constituted a commercial quantity. The petitioners countered that the tablets, being Schedule H1 drugs available in medical shops, should not be considered commercial quantities. They also argued that the inactive ingredients should not be included in determining the quantity.

The court referred to Section 2(xxiii) of the NDPS Act, which defines a psychotropic substance, and the graded punishment under Section 18 of the NDPS Act, categorizing contraventions into small, intermediary, and commercial quantities. The court emphasized that the determination of commercial quantity should be based on the content of the psychotropic substance in dosage form, as clarified by the Supreme Court in various judgments.

The court concluded that the seized tablets were in dosage form, and the inactive ingredients required to hold the active ingredients should be considered. Therefore, the seized quantity did not constitute a commercial quantity.

3. Entitlement of the Petitioners to Bail Under Section 167(2) of Cr.P.C:

The petitioners claimed bail as their indefeasible right under Section 167(2) Cr.P.C., arguing that the prosecution failed to file the complaint within the stipulated 60 days. The court agreed with this contention, noting that the petitioners were remanded to judicial custody on 28.11.2016, but the complaint was filed only on 24.05.2017, beyond the 60-day period.

The court referred to the Supreme Court's judgment in Dr. Bipin Shantilal Panchal vs. State of Gujarat, which held that an accused person has an indefeasible right to bail if the prosecution fails to file the charge sheet within the maximum time allowed by law.

Conclusion:

The court allowed the Criminal Revision Petition, setting aside the order of the Special Court and ordering the release of the petitioners on bail. The petitioners were required to execute a bond for Rs. 1,00,000 with two sureties each and to appear in person before the concerned court on all hearing dates and cooperate with the trial.