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2011 (2) TMI 1215

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....xi No. MH-01-X-5483 for taking delivery of the contraband. On interception 25 kgs. of Methamphetamine was recovered. After completing the formalities it was seized, samples were taken. The statements of accused nos.1 to 4 were recorded under section 67 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred as "NDPS Act") on 9th June, 2009. It was revealed that accused nos.1 to 3 had brought the said contraband from Punjab by car and it was to be delivered to accused no.5 - Anil Kumar Menon. Accused no.4, taxi driver - Veer Bahadur Singh had come near the Oberoi Mall to receive that consignment for and on behalf of accused no.5 - Anil Kumar Menon. During interrogation, in the statements of accused no.4 - Veer Bahadur Singh it was revealed that accused no.5 - Anil Menon and accused no.6 - G.Samuel @ Anna use to provide strategic and logistic support for export of the drugs to Cambodia. The statements of accused no.6 - G.Samuel @ Anna was also recorded under section 67 and he also confirmed this fact. Initially, the crime was registered bearing No. NCB/BZU/CR/09/2009. The samples were sent to forensic laboratory and after getting the report it was....

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....otified by the Government of India as per sub-clause (viia) and (xxiiia) of Section 2 of the NDPS Act, small quantity of Methamphetamine, also known as Metamfetamine, is 2 grams while commercial quantify is 50 grams. In this case, 25 kg. of Methamphetamine in powder form was recovered. It is contended that in view of the large quantity of psychotropic substance under Section 22(c), the offence is punishable with imprisonment for not less than 10 years and which may also extend to 20 years with fine. It is contended on behalf of the prosecution that the learned trial court committed error in holding that the provisions of NDPS Act are not applicable and that no offence under the said Act is made out.   5. On the other hand, the learned Counsel for the accused persons vehemently contended that even though Methamphetamine is shown as psychotropic substance in the Schedule annexed with the NDPS Act, it is not shown in the Schedule I as per Rules 53 and 64 of the NDPS Rules, 1985 and therefore, under the Rules, the general prohibition imposed by Rules 53 and 64 are not applicable. He also contended that it a drug in Schedule X under the Drugs and Cosmetics Act, 1940 and therefore,....

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....on of India for cancellation of bail. I have dealt with the related provisions of NDPS Act and Rules in depth in the judgment dated 19th November,2010. Later on the reasons given in the said judgment were adopted in toto by another learned Judge of this court in Criminal Application no.4824 of 2010 Union of India vs. Riyaz Razak Menon and Ors. which was decided on 10th January, 2011 (Coram: R.C.Chavan, J.). In fact to a great extent these applications are covered by the earlier judgment dated 19th November, 2010 but it would be useful to deal with the legal position again as some more points are raised in these matters.   7. Section 2(xxiii) defines psychotropic substance. It reads thus:-   ""psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule."   Methamphetamine is shown at entry no.19 in the Schedule of the psychotropic substances and therefore, there can be no dispute that Methamphetamine is the psychotropic substance as defined in Section 2(xxiii). Section 2(viia) provides that commercial quan....

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....or contravention in relation to psychotropic substance.-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,-   (a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;   (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;   (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."   11. ....

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....om producing, manufacturing, possessing, selling, purchasing, transporting, warehousing, using, consuming, importing and exporting inter-State, import into India and export from India or transhipment of drug and psychotropic substance. Having prohibited such operations, Section 8 provides for exception where the person claims that he had done any such operation for medical or scientific purposes. In view of the provisions of Section 105 of the Evidence Act, the burden will lie on that person to prove circumstances and the facts which would bring his case within the exception.   12. In the present case prima facie it appears that accused nos.1, 2 and 3 had brought 25 Kgs. of Methampethamine from Punjab to Bombay and they were intercepted when they gave delivery of the same to accused no.4, Veer Bahadur Singh - Taxi Driver, who had come to receive the consignment for and on behalf of accused no.5 - Anil Kumar Menon. Accused nos.1 to 3 did not claim that they had any license or authorisation for possession or inter-state transport from Punjab to Maharashtra. Accused no.4 also does not claim that he had any license or authorisation to take delivery of Methampethamine. According t....

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....prises for certain operations in respect of drugs other than those specified in Schedule C, C(1) and X and, therefore, this licence does not authorise Anjali Enterprises or accused no.5 to sell, stock, distribute, transport etc. any drug and particularly Methampethamine which is shown in schedule "X". In view of the above the Importer-Exporter Code and the licence issued by the Food and Drug Administration, Maharashtra State do not provide any authority to accused no.5 to deal with or possess psychotropic substance i.e. Methampethamine. These certificate and licence are of no use in this case.   13. After the claim of accused no.5 to possess Methampethamine on the basis of above referred certificate of Importer Exporter Code or license issued by Food and Drug Administration, Maharashtra State is rejected, there is no document on record produced by any of the accused persons to bring their case within the scope and ambit of the exception to Section 8(c). Therefore, consideration of rules framed under NDPS Act would in fact be unnecessary. However, because the learned Counsel for the respondent/accused have relied on certain authorities, contending that as Methamphetamine is no....

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.... specified in Schedule I. Thus, it will be clear that while Rule 53 prohibits import in and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I. Rule 64 prohibits inter-State import or export, sell, possession, etc. of psychotropic substances specified in schedule I of the Rules. It may be noted that prior to amendment with effect from 13th October, 2006 in the Schedule I of the Rules, 33 narcotic drugs and some psychotropic substances were included in that Schedule I. After the amendment, only there are three entries under the Narcotic Drugs and there are three entries under the Psychotropic Substances, fourth in each category is salts, preparations, admixtures, extracts and other substances containing any of these drugs or psychotropic substances. Thereafter, there is a Schedule II framed under Rule 53-A which provides that narcotic drugs or psychotropic substances or preparations specified in Schedule II shall not be exported to the countries or to the regions mentioned therein. Again in Schedule II, there are in all 45 entries and against each substance, in column no.5, names of the countries are mentioned to which, that particular narc....

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....ss he is lawfully authorised to possess such substance for any of the purposes under the Rules. Thereafter, Rules 66(2) provides for possession and use of psychotropic substances by research institutions, hospitals, dispensaries, etc. It also provides for possession by an individual for his personal medical use subject to prescription by the registered Medical Practitioner. In normal circumstances for medical purposes, one may be permitted to possess not exceeding 100 dosage units at a time and for his personal long term medical use, he may be permitted to possess more than 100 dosage but not exceeding 300 dosage at a time. The quantity which may be possessed by the research institutions, hospitals, dispensaries, etc. are also prescribed by the Rules and the licence or permit which may be issued to them. From this, it is clear that nobody can be in possession of any such psychotropic substance unless he has got appropriate licence, permit or authorisation either under these Rules or under the Drugs and Cosmetics Rules, 1945. At the cost of repetition, it may be again stated that in the present case, none of the accused persons claim to have any such licence, permit or authorisation....

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....hat case also, according to the prosecution, one Aslam Mohammed Shaikh was to receive a consignment of Norphazine Injections containing Buprenorphine, which is a psychotropic substance. On information, in presence of the panch witnesses and Aslam Mohammed Shaikh, search of the premises of transporter M/s.Chavla Carriers was carried out and the NCB recovered and seized 11950 ampoules of the said psychotropic substance. Said samples were manufactured by M/s.Gopish Pharma, a firm carrying on business in New Delhi. Accused Ravi Prakash Goel was a proprietor of the said firm. The said ampoules were transported from M/s.Gopish Pharma i.e. from the accused Ravi Prakash Goel to M/s. G and G Medicine Company which was the sole distribution agent for M/s.Gopish Pharma. In that case, Aslam Mohammed Shaikh was granted bail on the ground that the quantity of the psychotropic substance was less than commercial quantity. On the same ground, Ravi Prakash Goel was also granted bail. That order was challenged by the Intelligence Officer before this Court. This Court (Coram: S.C. Dharmadhikari, J.) concurred with the view taken by Delhi High Court in respect of the Rules and held that the said drug, ....

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....s Act and Rules thereunder and therefore, even though the said drug was also psychotropic substance within the meaning of Schedule to the NDPS Act, still the provisions of Section 8 would not be applicable. The Supreme Court upheld the grant of bail and rejected the appeal preferred by the State. The Supreme Court also noted that the Delhi High Court and Bombay High Court in the above referred two cases had taken the same view. It may be noted here that in Customs New Delhi vs. Ahmadalieva Nodira, 2004 Criminal Law Journal 1810 wherein Diazepam of 5 mg. tablets were seized. Three Judge Bench of the Supreme Court had set aside the bail granted to the accused. It may be noted that in Pradeep Dhond (supra), the Union had preferred appeal before the Supreme Court and in the order dated 20th April, 2007, the Supreme Court noted the judgment in Collector of Customs, New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 rendered by three Judge Bench and subsequent judgment of two Judge Bench in the State of Uttaranchal vs. Rajesh Kumar Gupta (supra) and in view of the provisions of Section 80 of the NDPS Act, Their Lordships observed that the matter needs to be placed before three Judge Bench....

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....gh airmail and RMS post office at Coimbatore. The drugs procured and exported were Alprazolam, Lorazepam and Nitrazepam. These drugs find place at serial nos. 30, 56 and 64 respectively of the schedule appended to the NDPS Act. However, none of these drugs were shown in schedule I to NDPS Rules. It was revealed that appellant - D.Ramkrishnan and co-accused were said to have got license under the Drug and Cosmetics Act, 1940 which gave them general permission for import and export. After referring to the observations in paragraph 19 and 20 in Rajesh Kumar Gupta, His Lordship observed thus:   "11. Section 80 of the Act provides that the provisions of the Act or the rules made thereunder are in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 or the rules made thereunder.   Drugs and Cosmetics Act, 1940 does not deal with exports. The provisions of Customs Act do. The licensees, therefore, were, thus, required to comply with the specific requirements of the Act and the Rules. It is not denied or disputed that the appellant neither applied for nor granted any authority to export by the Narcotic Commissioner or any other Officer who is authorized in th....

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.... in section 31-A and involving the quantity which is equal or more than quantity indicated against each such drug or substance shall be liable to puishment of death. In the table Methampethamine is shown against entry No. (xi) and quantity prescribed is 1500 gms. It means if a person has been convicted for an offence involving commercial quantity of narcotic, drug or psychotropic substance and after that conviction he is again convicted with similar offence involving 1500 gms. of Methampethamine the only sentence which can be awarded is death penalty. If argument of the learned counsel for accused is accepted that merely because Methampethamine is not shown in schedule I of the Rules, provisions of NDPS Act are not applicable, the provisions of section 8, 22 and 31-A will become nugatory and redundant. It is impossible to hold that the provisions of NDPS Act will be governed or overshadowed by the Rules framed thereunder. Under Section 76, the Central Government is empowered to make rules for carrying out purposes of the said Act and not in contravention of the said Act. Therefore, this argument advanced by learned counsel for the accused has no basis and is liable to be rejected. ....