TaxTMI 
TaxTMI 
2021 (2) TMI 150
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....raigned as an accused and applicant had not committed any offence as alleged. That applicant is one of the proprietor of M/s. Orlando Healthcare since the year 2012 and the said firm was engaged in trading of pharmaceutical materials. The applicant joined M/s. Ardor Drugs Pvt. Ltd. as a director only in the year 2019. It is highly uncertain and unreliable that the applicant has conspired and ensured to manufacture and export commercial quantity of contraband as he had just joined Ardor Pvt. Ltd. in 2019. That, the applicant being the proprietor of M/s. Orlando Healthcare since 2012, there is no single instance of violation of any law much less the provisions of the NDPS Act, in the past. That applicant has not engaged in commission of any offences as alleged in the complaint. That a bare reading of the complaint also at no point reveals that the applicant had any other role other than that of being the Director of Ms. Ardor Ltd. Since the year 2019. Further more, the applicant also doubts if the papers where the applicant's signatures were sought were blank papers in the first place. That the purported statement and the signature therein have been taken by coercion, duress, inv....
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....ng to export One Lakh Tramadol Hydrochloride Tablet as well as letter for retraction of statement made by the applicant and other co-accused. In support of his arguments, learned advocate for the applicant has placed reliance on the judgment reported in 1984 SCC (1) 284 and judgment delivered in Criminal Appeal No. 2178 of 2011 by the Hon'ble Supreme Court. Ultimately it was requested by learned advocate for the applicant to allow present application by releasing the applicant on regular bail. From the other side, learned Additional Solicitor General of India for the respondent No.2 has strongly objected the submissions made by learned advocate for the applicant and submitted that on receiving specific information by the respondent No.2 that applicant was engaged in manufacturing of pharma products and selling Tramadol, a psychotropic substance illicitly through a trader M/s. Orlando Healthcare, Surat is in process of exporting Tramadol tablets by concealing it in containers stuffed with pharmaceutical products from the Hazira Port, a search was carried out at the factory premises of M/s. Ardor Drugs Private Ltd. Songadh on 06.07.2020 as well as container lying at CFS-Seabird ....
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....ed that applicant has controverted the provisions of Section 8(C) and 9(a) punishable under Section 20, 23, 25, 25A and 29 of the NDPS Act. It is further submitted that investigation is over and charge-sheet has been filed on 29.12.2020. That detail complaint was filed wherein entire modus operandi of the applicant and events are described that applicant is engaged in the day to day business of his company. That license for production of Tramadol is issued then applicant will have to maintain certain record of sale which he did not. That arguments advanced by learned advocate for the applicant is far away from the facts. That present applicant has played an active role in illegal activities in export of Tramadol tablets and also for illicit clearance of Ephedrine and Pseudoephedrine, and therefore, he is liable to be punished under different Sections of NDPS Act. That he is a director of different companies and all the illegal activities of manufacturing, selling and exporting of psychotropic substance i.e. Tramadol 225 mg were carried out under his active control and directions. That Tramadol HCL 225 mg tablets were manufactured and illegally exported to M/s. Orlando Healthcare, S....
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.... and arguments advanced by learned advocates for the respective parties, it appears that the Director of Revenue Intelligence, Surat has received and developed specific intelligence that M/s Ardor Drugs Pvt. Ltd. Situated at Songadh-Ukai Road, Songadh, Tapi is engaged in the business of manufacturing of drugs (medicines) and also engaged in manufacturing and selling Tramadol, a psychotropic substance illicitly and aforesaid company through M/s. Orlando Health care Ltd, Surat is in process of exporting Tramadol tablets by concealing it in containers stuffed with pharma products from Hazira Port. Thereafter on 06.07.2020, a search was carried out at factory of M/s. Ardor Drugs Pvt. Ltd. And at CFD-Seabird Marine Services Pvt. Ltd, Hazira Port, Surat and during the search, shortage of 1376.443 kgs of Tramadol Hydrochloride was found and shortage of 174.978 kgs of Ephedrine Hydrochloride IP and shortage of 137.175 kgs of Pseudoephedrine Hydrochloride were found from the factory premises. Upon interrogation, Mehulbhai Manubhai Desai and the present applicant have given information that they have manufactured 60 Lakhs tablets of Tramadol Hydrochloride of 225mg from the aforesaid short fo....
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....chedule X produced at Annexure -C collectively and Licence in Form No.25, License No.G/25/1623 produced at Page No.36-C, it appears that M/s. Ardor Drgus Pvt. Ltd was granted a license to manufacture the psychotropic drugs and export the same by the Commissioner, Food and Drugs Control Administration, Gujarat State. It appears that time and again license of the competent authority was renewed and valid till 4.12.2020. Admittedly search was carried out by the prosecution at the premises of M/s. Ardor Drugs Pvt. Ltd., Sonagadh and Hazira Port on 06.07.2020 where the validity of the licnese was in existence. In License No.G/25/1623, product for exporting of Tramadol Hydrochloride BP 225 mg declares contents of Tramadol Hydrochloride BP 225 mg excipients was also approved with a quality of 1 Lakh tablets on 12.11.2019. Now this Court would like to refer affidavit in reply filed by the Deputy Director, Directorate of Revenue Intelligence, Surat namely Prashant Kumar in his affidavit-in-reply in Para 2.12, he has stated that: "Letter FDCA/Ardor/2020/77682-84 dated 17.08.2020 issued by Commissioner, Food & Drugs Control Administration wherein they had informed that M/s. Ardor Drugs Pvt.....
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....from M/s. Ardor Drugs Pvt. Ltd. Further, 15.21 lakhs tablets were attempted to be exported from M/s. Orlando Healthcare, Surat, however the same were seized by DRI authorities. It is pertinent to mention here that export has been made from M/s. Orlando Healthcare (Proprietor Shri Harshal Desai) which did not had any permission to manufacture or export the above said Tramadol 225 mg tablets. Department of Revenue, Ministry of Finance vide Notification S.O 1761(E) dated 26.4.2018 has declared Tramadol a psychotropic substance at Sr. No. 110Y of the Schedule wherein list of psychotropic substances are mentioned. Further, Department of Revenue, Ministry of Financier vide Notification S.O 1762(E) dated 26.4.2018 has declared 250gm as the commercial quantity for Tramadol." What is necessary for the Court to examine the question of grant of bail where section 37 applies is that the court should be satisfied having regard to the material available on record as there are sufficient grounds with the applicant that he may not be convicted. If probabilities are that the applicant can not be convicted then the court can grant bail subject to further conditions being satisfied that the applican....
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....f the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, traveling in an Indica car and effecting recovery from them do not come within the definition of police officers.". The High Court thus affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1 lakh, in default whereof to undergo further rigorous imprisonment for 1½ years. Similar orders of sentence were passed in respect of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh. 6. In this appeal challenging the correctness of the conviction and sentence rendered as against the appellant, it was submitted by Mr. Jayant Bhushan, learned Senior Advocate that apart from the so called statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh there was nothing against the appellant and that he was neither arrested at the site nor was the contraband material in any way associated with him. Mr. Maninder Singh, learned Additional Solicitor General appearing for the respondent however supported the judgment of conviction and sentence rendered again....
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.... 1872 vis-à-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with." (2013) 16 SCC 31 (2011) 12 SCC 298 (2008) 16 SCC 417 41. For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not. 42. In this context, the other related issue viz. whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue ....
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....ed by Mr. Prashant Kumar in his affidavit in reply Page 43 of the petition that M/s. Ardor Drugs Private Limited got one time permission for manufacture and export of Tramadol Hydrochloride 225 Mg tablets to Cameroon (through M/s. Sanctuary Pharmaceuticals) for only 101000 Tramadol 225 mg tablets. However, applicant in the guise of above mentioned licence, manufactured more than permissible quantity of Tramadol 225 mg tablets and got it clandestinely removed from M/s. Ardor Drugs Private Limited. Therefore, under the facts and circumstances of this case, this Court feels that this is a fit case whether the applicant is entitled to bail because there is a possibility that he may not be convicted under the provisions as charged by the respondent no.2 after recording evidence of eye witnesses. This Court is satisfied having regard to the material available on record and there are sufficient grounds that if the applicant may not be convicted. Further, the applicant has no antecedent and trail would take long time. He is not likely to run away from the justice if he is released on bail, as he is a Director of different companies situated at Songadh District Tapi. If the probabilities ....