TaxTMI 
TaxTMI 
2024 (5) TMI 924
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....c Substances Act, 1985 ("the NDPS Act, 1985") have preferred these applications to enlarge them on bail. 2. On the basis of the intelligence input, one export consignment covered under Shipping Bill No.7996704 dated 23rd February, 2023 of M/s. First Wealth Solution destined to Yasoub Adam Hamdoun, Atalbara (A), Juba, South Sudan with declared description in shipping bill and in export invoice as 'Tamol-X-225' quantity as 21 packages containing 10.5 lakhs tablets, having gross weight 729 kg. and net weight 720 kg., was intercepted by the Central Intelligence Unit (CIU) Air Cargo Complex, Sahar, (ACC) and kept on hold, on 25th February, 2023, for 100% examination by the officers of CIU, ACC, Mumbai. 3. A search panchnama was drawn on 27th February, 2023 by the officers of CIU in the presence of the panch witnesses. The description on each boxes as well as on the inside packages was calcium carbonate 225 mg. Quantity found was 9,99,500 tablets of Tamol-X. The goods were thus found to be misdeclared in terms of quantity and description. Thus the consignment was seized under seizure memo. Samples were drawn and sent for analysis to CRCL Lab. The test was positive for Tramadol, a p....
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....h Hasan alias Aldosky (A4). In the search at the residence of Ahmed Saleh (A4) Rs.60,50,000/-, in Indian currency, and US$ 1000, in denomination of 100 US$, alongwith an executive diary containing the details of the transactions between Gudipati (A1) and Ahmed Saleh (A4) were found and seized. Gudipati (A1) and Ahmed Saleh (A4) were in regular touch with each other and the WhatsApp chats between Gudipati (A1) and Ahmed Saleh (A4) revealed the conspiracy Gudipati (A1) and Ahmed Saleh (A4), alongwith other accused, had hatched to export the psychotropic substance. (e) Ravindra Kavthankar (A5), the prosecution alleges, was in constant touch with Gudipati (A1). The change in the description of the product proposed to be exported was such that Ravindra Kavthankar (A5) must have questioned the same in his capacity as the freight forwarder. The WhatsApp chat between Gudipati (A1) and Ravindra (A5) and the fact that Ravindra (A5) had got extra commission for each consignment from Gudipati (A1) indicates that Ravindra (A5) was privy to the alleged conspiracy. The prosecution thus alleges Ravindra (A5) has also actively conspired with the other co-accused and was instrumental in tra....
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....on record, according to Mr. Sayed, does not indicate that Ahmed Saleh (A4) was a confederate in the alleged conspiracy to export the psychotropic substance. 9. Mr. Kantawala, the learned Counsel for Ravindra (A5), submitted that the provisions contained in Section 8(c) of NDPS Act, 1985 are not at all attracted qua Ravindra (A5). As a freight forwarding agent the role of the Ravindra (A5) was that of reserving the space for freight. A strenuous endeavour was made by Mr. Kantawala to draw home the point that Ravindra (A5) had forwarded the boxes which were received from Gudipati (A1) to CHA. Ravindra (A5) was totally unaware of the contends of the product to be exported. In fact, Gudipati (A1) categorically states that the Ravindra (A5) was unaware of the fact that the consignment contained Tramadol. 10. Mr. Kantawala would further urge that the fact that at times some amount came to be credited to the account of Ravindra (A5), instead of the Galaxy, by itself, is not sufficient to establish the nexus between Ravindra (A5) and the alleged offences. Therefore, Ravindra (A5), who has been in custody for one year and three months, deserves to be enlarged on bail. 11. As agains....
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....iew of the matter, the aspect of prima facie complicity of the applicants for the alleged offence deserves consideration. From the perspective of claim for bail, the submission of Mr. Sayed, premised on inapplicability of the authorization envisaged by Rule 58 of the NDPS Rules, 1985 merits consideration is as it may bear upon the entitlement for bail not only of Gudipati (A1) but also Ahmed Saleh (A4) and Ravindra (A5). 15. The relevant part of Section 8(c) of the NDPS Act, 1985 reads as under: "8. Prohibition of certain operations.- No person shall- ....... (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:" 16. Dea....
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....rm No.5 appended to these rules. ........" 20. Rule 53 declares in clear and unambiguous terms that import into and export out of India of narcotic drugs and psychotropic substance is prohibited, except with a import certificate or export authorization issued under the provisions of the said Chapter. 21. The proviso to Rule 53, on which stress was laid by Mr. Sayed, does not advance the cause of the submission sought to be canvassed by him. The proviso mollifies the rigor of the prohibition contained in a main part of Rule 53 only for the purposes mentioned in Chapter VIIA of the NDPS Rules, 1985, which contains a fasciculus of provisions regarding manufacture, possession, transport, import, export, purchase and consumption of narcotic drugs and psychotropic substances for medical, scientific, and training purposes. Therefore, the proviso to Rule 53 cannot be so construed as to dilute the rigor of the prohibition contained in main part of Rule 53 to the extent that no authorization as such is required if a narcotic drug or psychotropic substance is exported for medical purposes. Such a construction would run counter to the object of prohibiting import into and export....
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....;not les than three months' notice is also for the same reason mandatory.' We are in respectful agreement with the aforesaid statement of law by the learned author." (emphasis supplied) 24. In the case of A. K. Roy and another vs. State of Punjab and others (1986) 4 Supreme Court Cases 326 construing the provisions contained in Section 20(1) of Prevention of Food Adulteration Act, 1954, which began with the expression, 'No prosecution for an offence under this Act', the Supreme Court enunciated the principle of construction of the statutory provisions as under: "10. .......... The use of the negative words in s. 20(1) "No prosecution for an offence under this Act .. shall be instituted except by or with the written consent of" plainly make the requirements of the section imperative. That conclusion of ours must necessarily follow from the wellknown rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law, 6th edn., p. 263 in his own terse language: "If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language....
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....hat Ahmed Saleh (A4) was a confederate in conspiracy to export the psychotropic substance. There is no substantial probable cause to believe that Ahmed Saleh (A4) may not be guilty of the offences for which he has been arraigned. Rigor of Section 37 of the NDPS Act, 1985 stands attracted. 29. On the aspect of the complicity of Ravindra (A5), the prosecution banks on the statements of Ravindra (A5) and Gudipati (A1) recorded under Section 67 of the NDPS Act, 1985. Secondly, the transcript of WhatsApp conversation between Gudipati (A1) and Ravindra (A5) is pressed into service. Third circumstance arrayed against Ravindra (A5) is the credit of amounts to the account of Ravindra (A5) by Gudipati (A1). The prosecution alleges that the aforesaid material would cumulatively indicate that Ravindra (A5) was well awre about the modus operndi adopted by Gudipati (A1) to export the Tramadol disguised as some other pharmaceutical product. 30. I have carefully perused the material on record qua Ravindra (A5). As noted above, initial export invoice was changed by Gudipati (A1) disguising the product to be exported as calcium carbonate. All these shipping documents were forwarded by Gudipati (A....
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....s alleged by the prosecution, may not in itself suggest mens rea on the part of Ravindra (A5). 35. The credit of an amount of Rs.1,20,000/- during the period 7th April, 2021 to 30th August, 2022, when there is material to show that, in the past, as well, the consignments were entrusted to Galaxy by First Wealth without any concomitant circumstance may not sustain an inference that Ravindra (A5) was cognizant of the attempt to export psychotropic substance. The proportion of the said amount to the value which Gudapati (A1) had received in the past and might have received by exporting the consignment in question, would also be a matter which may bear upon the element of criminality. 36. In the aforesaid view of the matter, whether Ravindra (A5) was privy to the alleged offences prima faice appears debatable. Having regard to the limited role of a courier manager of a Freight Forwarder Company, and the material which is pressed into service against Ravindra (A5), in my considered view, the rigor contained in Section 37 of the NDPS Act, 1985 may not be attracted qua Ravindra (A5). The Court is not informed that the applicant Ravindra (A5) has antecedents. I am, therefore, persuad....