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2012 (5) TMI 688
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.... b) This Hon'ble Court be pleased to set aside the Orders dated 28.3.2012 in CR.MA.No.493/12 passed by Addl.Session Judge, A'bad and order dt.20/4/12 in CR.MA 1206/12 passed by Addl.Session Judge, Ahmedabad. c) This Hon'ble Court be pleased to expedite the hearing of this Application in the interest of justice; d) Since the Petitioner is in custody, the verification of this Application be dispensed with. e) Such other and further reliefs as this Hon'ble Court may deem fit and proper." 2. It is the case of the prosecution that the officers of Directorate of Revenue Intelligence (DRI), Ahmedabad, gathered information, that Shri Sujal Patel of M/s. Anshanu Exports and his employee Shri Babubhai Manibhai Sharma @ Bakabhai are suspected to be involved in illegal exports/smuggling of Narcotic drugs and/or psychotropic substances by courier mode through Air Cargo Complex, Ahmedabad. The information gathered further indicated that some consignment of Narcotic drugs and/or psychotropic substances are scheduled to be sent to USA/UK by courier mode through Air Cargo Complex, Ahmedabad, on 03.12.2011. Based on the above, the officers of DRI, Ahme....
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....of the total seized quantity of 432 kgs, 401 Kgs. pertained to Batch No.MAD1 1001 with the date of manufacture as November, 2011. The entire quantity i.e. 432 Kgs. Of 1-(4-methylphenyl)-2-methylaminopropan-1-one were placed under seizure by the Central Excise officers of Sangli under a reasonable belief that the said item declared as 1-(4-methylphenyl)-2-methylaminopropan-1- one may be covered under narcotic drugs and psychotropic substances. The officers of Central Excise, Sangli drew representative samples under panchnama and placed the said goods under seizure. 2.2 The samples drawn from the 37 packets were forwarded for analysis to the Directorate of Forensic Science, Gandhinagar (DFS) and the DFS vide their test report letter DFS/NARCFOTICS/11/NC/82 dated 7.12.2011 has reported that the samples were primafacie suspected to be 'METHAMPHETAMINE HYDROCHLORIDE' and later on vide test report letter DFS/EE/2011/NC/82 dated 20.12.2011 and test report letter DFS/EE/2011/NC/84 dated 15.02.2012 confirmed that the samples drawn from the 37 packets tested positive for 'METHAMPHETAMINE HYDROCHLORIDE'. The DFS also confirmed that 'METHAMPHETAMINE HYDROCHLORIDE' wa....
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....d by the manufacturing unit - M/s Kamud Drugs Pvt. Limited N-6 & 8, M.I.D.C., Kupwad Block, Sangli-416436, Maharashtra under the batch numbers mentioned in the above table. 2.4 During June-2011 DRI, Mumbai had searched the premises of M/s Kamud Drugs Pvt. Limited in connection with the seizure of 200.6 kgs of Ketamine Hydrochloride seized from a Tata Sumo vehicle at Andheri(East), Mumbai being illegally diverted for being exported by way of misdeclaration and concealment. During the course of search officers of DRI Mumbai had also recovered another consignment of about 826 kgs of Ketamine Hydrochloride contained in 32 drums from a farm house situated about 3 kms from the factory premises of M/s Kamud Drugs Pvt. Limited which was actually removed illegally from the factory premises of M/s Kamud Drugs Pvt. Limited and the said quantity was also placed under seizure by the officers of DRI, Mumbai. 2.5 Inquiries with the staff of M/s Kamud Drugs Pvt. Limited available at the factory premises during the course of Panchnama dated 04.12.2011 revealed that, consequent upon the above case, the FDI had cancelled licence No.SA-20B/1447 Dt.23.05.2008 and SA-21B/1418 Dt.23.05.2008 granted....
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....nce Laboratory at Hyderabad, (for short "CFSL") and Central Revenue Control Laboratory, New Delhi (for short "CRCL"). It was specifically contended before the learned NDPS Judge that the test carried out by Directorate of Forensic Science at Gandhinagar (for short "DFS") was not conclusive and correct and the seized material contained that 'Mephedrone Hydrochloride' as claimed by the petitioner and not 'Methamphetamine Hydrochloride' as per the report of DFS, Gandhinagar. 4. In the application, the petitioner had challenged free basis of method of the test of the seized substance carried out and contended that first 3 tests viz. MARKAVANCE, SIMON SE and MANDE LIME cannot be relied upon as molecules of both the drugs viz. 'Mephedrone Hydrochloride' and 'Methamphetamine Hydrochloride' which contain Nitrogen and under the given position of the molecules the result of the said tests cannot be relied upon. The petitioner relied on various chemical formulas, analytical chart and prayed that second samples of the alleged seized contraband be sent to National Laboratories viz. CFSL, Hyderabad and CRCL, New Delhi, so that involvement of the petitioner in a....
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....d set aside and alternatively, this Court may also order retesting of second sample of seized material by the laboratories viz. CFSL, Hyderabad and/or CRCL, New Delhi. 9. The learned counsel for the petitioner also reiterated all submissions which he canvassed before the learned NDPS Court, which are already recorded in this judgment in earlier paragraph and therefore, the submissions are not reproduced to avoid repetition. However, the basic contention of learned counsel for the petitioner about absence of Methamphetamine Hydrochloride in seized material and it contained only Mephedrone Hydrochloride remained substantial in support of his prayer. 10. It is, therefore, prayed that prayer in terms of para 8 in the petition be allowed in the interest of justice, since free and impartial investigation is a fundamental requirement of the Criminal Procedure Code and also Article 21 of The Constitution of India guarantees the life and liberty, which cannot be curtailed or taken away by the procedure undertaken by respondent No.2, which is not legal. 11. Shri. P.S. Champaneri, learned Assistant Solicitor General of India appearing on behalf of respondent No.2, heavily relied on d....
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....s independent and in all the provisions under the Drug and Cosmetics Act, 1940 and both operate in different area and no benefit can be given to Section 18 which do not bar application of Drugs and Cosmetics Act, 1940, contained in chapter-IV of the said Act. It is, therefore, submitted that the case of the petitioner deserves to be rejected in as much as, neither on facts, nor in law, any submission of learned counsel for the petitioner has any substance. 12. Learned counsel for the petitioner, however, placed reliance on some orders of the High Court of Madhya Pradesh Bench, Indore, in exercise Revisional Jurisdiction under Section 397 of Code and decision of the High Court of Kerala about applicability of The Drugs and Cosmetics Act, 1940 and submitted that accused can make a motion for second sample to be tested since what is paramount, is interest of justice and the accused has a right to establish that the item seized is not prohibited item under the Act. Another decision was of the High Court of Delhi, rendered on 03.01.2007, in the case of Nihal Khan and another Vs. The State (Govt of Nct of Delhi) while dealing with Criminal Revision Petition Nos.653 and 675/2006 [MANU/....
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.... of the petitioner. The interference of the Court exercising powers under Article 226 of the Constitution of India and/or under Section 482 of the Code, is circumscribed and as a limited scope of interference at the stage of investigation, which is yet not completed. 16. For the sake of brevity and convenience, Section 80 of The Drugs and Cosmetics Act, 1940 and Section 25 of the NDPS Act, 1985, are reproduced as under: "80. Application of the Drugs and Cosmetics Act, 1940 not barred.- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 to 1940) or the rules made thereunder." "25. Reports of Government Analysts.-(1) The Government Analyst to whom a sample of any drug [or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken [and another copy to the person, if any, whose name, address and other particulars have been disclosed u....
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....ting it a signed report in triplicate in the prescribed form. Section 23 of the Drugs and Cosmetics Act, 1940, is pertaining to procedure of inspectors to follow while taking the sample of drugs and cosmetics and sub Section (3) further provides details about the procedure to be adopted by inspector to take sample of such drug or cosmetics. In the above context, sub Section (4) of Section 25 provides that unless the sample has already been tested OR analyzed in the central drug laboratory, where, a person has under sub Section (3) notified his intention of adducing evidence in contravention of a Government analyst report, either the Court on its own motion or in its discretion at the request of either the complainant or accused cause the sample of the drug or cosmetic produced before the Magistrate under sub Section (4) of Section 23 can sent such sample for analysis. 18. In this case, the sample has already been tested by DFS, Gandhinagar and the investigation is yet not over and on the basis of suspicion or under the belief of applicability of one or other method, formula, or equation the petitioner would like to challenge the report of the expert analyst of a recognized Gover....