Bombay High Court
Ravi Prakash Goel vs Narcotics Control Bureau And Anr on 20 June, 2016
Bench: Anuja Prabhudessai
1208 of 2011.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1208 OF 2011
Mr. Ravi Prakash Goel
Age 63 years,
Prop. Of M/s. Gopish Pharma
Resident of A-96, Saraswati Vihar,
Pitampura,
New Delhi 110040 ..Applicant
v/s.
1. Narcotics Control Bureau,
Exchange Building, 3rd floor,
Sprott Road, Ballard Esrtate,
Mumbai through its
Intelligence Officer
Mr.M.V.Henry
2. State of Maharashtra. ..Respondents
Mr. Ayaz Khan for the Applicant
Ms.Rebecca Gonsalves for the Respondent
Mrs. Newton, APP for the Respondent-State.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
RESERVED ON : 18th December, 2015
PRONOUNCED ON : JUNE 20, 2016.
pps 1 of 24
::: Uploaded on - 20/06/2016 ::: Downloaded on - 30/07/2016 05:59:51 :::
1208 of 2011.doc
JUDGMENT:
1. By this application filed under the provisions of Section 482 of
Cr.P.C. the applicant has challenged the order dated 16.8.2011
whereby the learned Special Judge, (NDPS) for Gr. Mumbai
dismissed the discharge application being Misc. Application No. 192
of 2005 in NDPS Special Case No.63 of 2005.
2.
The brief facts necessary to decide this application are as
under:
It is the case of the prosecution that the officer of the
Respondent No.1 (Narcotics Control Bureau (NCB)) had received
information that on 11.1.2015 at about 15.25 hours, one person by
name Jalanbhai @ Aslam Mohd. Sheikh would take delivery of
consignment of huge quantity of Norphazine injections containing
buprenorphine from godown of M/s. Chawla Highway Carriers at
Shiv Mahal Building, Dr. Maheshwari Road. Sandhurst Road,
Mumbai. The said consignment was reported to have been sent by
a firm M/s. Anjani Traders under lorry receipt No.23955 dated
pps 2 of 24
1208 of 2011.doc
03.1.2005. Accordingly a raid was conducted by the Officers of NCB
at the godown of M/s. Chawla Highway Carriers and the
consignment containing 12000 ampoules of Norphazine injections
was recovered. The accused Jamalbhai @ Aslam Mohd. Sheikh,
who had come to take the delivery of the consignment, was
apprehended by the officers of the Respondent No.1 (NCB). It was
revealed that the said injections were manufactured by M/s. Gopish
Pharma, Delhi, a proprietorship concern of the applicant accused
herein.
The applicant was arrested on 10.3.2005 and Special
Complaint Case No.63 of 2005 came to be filed against him for
violating provisions of the N.D.P.S. Act and the Rules framed
thereunder.
3. The applicant had filed an application for bail before the NDPS
Court which was granted vide order dated 4.4.2005. The challenge
to the said order was dismissed by this court in Criminal Application
No.3295 of 2005 as well as by the Apex Court in SLP (Cri.) 5714 of
2006. The applicant had filed a criminal writ petition No. 1067 of
2005 seeking quashing of the NDPS Special Case No.63 of 2005.
pps 3 of 24
1208 of 2011.doc
The same was dismissed by this court by order dated 7th February,
2006.
4. The applicant filed an application being Criminal Misc.
Application No. 192 of 2005, for discharge from the offences alleged
in the said NDPS Case. The said application came to be rejected by
the N.D.P.S. Court by order dated 16.8.2011. Being aggrieved by
the said order, the applicant has invoked the jurisdiction of this court
under Section 482 of Cr.P.C. to quash the said order as well as to
quash the proceedings of said NDPS Act.
5. Shri Ayaz Khan, the learned Counsel for the applicant
submitted that the firm M/s. Gopish Pharma has a valid license to
manufacture drug formulations, including Buprenorphine
Hydrochloride injection IP, brand name (Norphazine) which is
specified under Schedule H to the Drug & Cosmetic Rules, 1945.
He has submitted that the drug manufactured by M/s. Gopish
Pharma is a medical product falling within the proviso to section 8 of
the N.D.P. S. Act.
pps 4 of 24
1208 of 2011.doc
6. The learned counsel Shri Ayaz Khan has further submitted that
the applicant was not called upon in writing to comply with form VI
prescribed under Rule 67 of the NDPS Rules. Furthermore, till
3.6.2004 there was a direction not to insist upon compliance of Rule
67 and that the prosecution has failed to show that such compliance
was mandatory post 25.6.2004. He has submitted that at the time of
the alleged incident the form VII was in existence and hence,
compliance of Rule 67 was not mandatory.
7. The learned counsel for the Applicant has further submitted
that there is no prima facie material to show that the applicant had
sold the said ampules to Ajnanai or Jamalbhai, who had sold the
same to Raghu. He has submitted that the respondent NCB had not
established the link between the applicant, Ajnani and Jamalbhai.
The learned counsel for the applicant has further submitted that the
statement recorded under Section 67 of the NDPS Act is not
admissible. In support of this contentions he has relied upon the
decisions of the Apex Court in Noor Aga v. State of Punjab 2008(3)
pps 5 of 24
1208 of 2011.doc
RCR (Cri.) 633, UOI v. Bal Mukund 2010(1) SCC (Cri.) 541,
Nirmal Singh Pehlvan v. Inspector of Customs 2012(1) SCC
(Cri.) 555 , and Toofan Singh v. State of Tamil Nadu 2013 (16)
SCC 31.
8. The learned counsel for the Applicant has further stated that
the Applicant was granted bail as there was no prima facie material
to link the applicant with the alleged offence. The challenge to this
order was dismissed by this court as well as the Apex Court. He
therefore claims that there is no prima facie material to proceed
against the Applicant for the alleged offences and hence the
applicant is entitled for discharge.
9. He has relied upon the following decisions.
i) Deepak Monga v. State of Haryana 2014(1) Drugs Cases
(narcotics) 572;
ii) Narayanbhai Mangaldas Patel v. Union of India 2014(1)
Drugs Cases (Narcotics) 441,
iii) Inderpal Singh v. Directorate of Revenue 2014(1) Drugs
pps 6 of 24
1208 of 2011.doc
Cases (Narcotics) 439.
10. Ms. Rebecca Gonsalves has raised a preliminary objection
regarding maintainability of discharge application on the ground that
the criminal writ petition no.1067 of 2005 filed by the applicant for
quashing of the said special case was dismissed by this court by
order dated 7.2.2006. She has submitted that the applicant had not
challenged the said order and the order having attained finality, the
applicant could not have filed an application for discharge on the
same grounds.
11. Ms. Gonsalves, the learned Counsel for the respondent No.1
has submitted that while filing the discharge application the applicant
had heavily relied upon the decision of the Apex Court in State of
Uttaranchal v. Rajeshkumar Gupta 2007 (1) SCC 355, wherein it
was held that the prohibition contained in Rule 63 of 1985 rules is
applicable only to Narcotic drugs and psychortophic substances
which are mentioned in Schedule I to the rule and not in
psychotrophic substances enumerated in the Act. She has
pps 7 of 24
1208 of 2011.doc
submitted that relying upon the said judgment the applicant had
claimed that the provisions of NDPS would not apply as the
substance involved in the present case was buprenorphine,
mentioned in entry no.92 in the schedule to the NDPS Act but not
enumerated in Schedule I to the NDPS Rules, 1985. She has
submitted that the issue involved in the said case as well as in the
present petition was referred to the larger bench and that by order
dated 29.1.2013 this Court had deferred the present matter pending
the decision of the Apex Court. She has submitted that the larger
Bench of the Apex Court has now held that the conclusion reached
in Rajeshkumar Gupta's case (supra) is untenable. Hence the
present application has to be decided in the light of the decision of
the larger bench of the Apex Court.
12. On merits of the case, the learned counsel for the respondent
No.1 has submitted that the material on record prima facie reveals
that the applicant is the proprietor of Gopish Pharma. The learned
counsel for the Respondent No.1 has submitted that in view of
section 80 of the Act, despite holding a valid license for the
pps 8 of 24
1208 of 2011.doc
manufacture of Norphazine issued under Drugs and Cosmetic act,
1940, the applicant was also required to comply with the provisions
of N.D.P.S. Act and Rules framed thereunder. In support of this
contention she has relied upon the decision of the Apex Court in
D.Ramkrishnan Vs. Intelligence Officer, N.CB. AIR 2009 SC
2404.
13. The learned counsel for the Respondent No.1 has submitted
that 11950 ampules of norphazien buprenorphine injections of batch
No.NP 927, manufactured by Gopish Pharma were seized under
seizure panchanama dt.11.1.2005. She has submitted that the
goods were described in the consignment note as well as in the
Form B as 'necklace'. She has further submitted that the CA report
dated 19.1.2005 reveals that the substance has tested positive for
buprenorhpazine.
14. The learned counsel for the respondent has further submitted
that the Apex Court has consistently held that the confessional
statement recorded under Section 67 of the NDPS Act by an officer
pps 9 of 24
1208 of 2011.doc
within the meaning of Sec. 42 of the NDPS Act is admissible in
evidence against him and a conviction can be maintained solely on
the basis of such a statement. She has relied upon the decision of
the Apex Court in Kanhaiyalal vs. Union of India AIR 2008 SC
1044 , Ram Singh v. Central Bureau of Narcotic AIR 2011 SC
2490 and Bhavarsingh v. Central Bureau of Narcotics 2015 All
MR (Cri.) 3687. She has submitted that in Toofan Singh (supra)
the Apex Court felt it necessary to have a relook at the ratio laid
down in Kanhaiyalal and therefore, referred the matter to a larger
bench for reconsideration of the issues whether the office
investigating a case under N.D.P.S. Act would qualify as a police
officer and whether this statement recorded by the Investigating
Officer under section 67 can be stated as a confessional statement.
Relying upon the decsion of this Court in Madhav Atulchandra
Bapat Vs. the State of Maharashtra 2009 (4) Bom C.R. 32, she
has submitted that the justice between the parties cannot be kept in
suspended animation in view of pendency of the reference before a
larger bench.
pps 10 of 24
1208 of 2011.doc
15. The learned Counsel for the respondent has submitted that
the statement of the applicant, recorded under Section 67 of the Act
reveals that M/s. Gopish Pharma is involved in manufacture of
medicine including Norphazine and that M/s. G&G Medicine
Company of which he was one of the partners was the sole
distribution agent of M/s. Gopish Pharma. She has submitted that
the statement of the applicant reveals that M/s. Gopish Pharma had
sold several ampules of Norphazine injections including 25000
ampules of batch no. 927 to M/s. G&G Medicines. She has further
submitted that the applicant had tendered list of customers to whom
M/s. G&G Medicines had sold the said medicines. Some of the
invoices produced by the applicant showed that some amupules of
Norphazine injections of batch No.NP 927 were sold to M/s Shiv
Chemical Agencies on 11.9.2004, 15.9.2004, 18.9.2004 and
20.9.2004. She has further submitted that the statement of Pradip
Bhatia, the proprietor of Shiv Chem Agency reveals that he had
never purchased the said medicines as reflected in the said invoices
from G&G Medicine company and that the applicant had been
requesting him to give him an acknowledgement for the Norphazine
pps 11 of 24
1208 of 2011.doc
injection under a promise of compensating him handsomely.
16. The learned counsel for the respondent No.1 has further
submitted that the material on record reveals that the applicant had
sold the said injections to one Raghu, who did not have a valid drug
license, by issuing fake invoices in the name of M/s. Shiv Chem
Agency. The learned Counsel for the respondent No.1 has
submitted the material on record prima facie reveals that the
applicant had
not maintained Form-VI for sale of the
ampules/injections from M/s. Gopish Pharma to G&G medicines or
from G&G Medicines to various customers. The learned counsel for
Respondent No.1 submits that the intention of the applicant was to
illegally divert and export to psychotrophic substance to Dubai
through one Jamalbhai, who had come to collect the consignment
from the godown of Chawla Carriers. She contends that the
applicant had violated the provisions of Section 8C of the Act as well
as Rule 67 of the Rules.
17. I have perused the records and considered the oral as well
as the submissions filed by the learned counsel for the Applicant and
pps 12 of 24
1208 of 2011.doc
the learned counsel for the Respondent No.1. It may be mentioned
that section 482 of Cr.P.C recognizes the inherent powers of the
High Court to make such order as may be considered necessary to
prevent the abuse of the process of law or to serve the ends of
justice. Whereas section 227 of Cr.P.C. confers powers on the
Sessions Court to discharge the accused if upon consideration of the
record of the case and the documents submitted therewith and after
hearing the submission of the accused and the prosecution, the
court considers that there is no sufficient ground to proceed against
the accused.
18. In the instant case the applicant herein had filed a petition
under under Article 227 of the Constitution of India r/w section 482 of
the Cr.P.C. being criminal writ petition no. 1067 of 2005, for quashing
and setting aside the investigation/proceeding, which were pending
before the Intelligence Officer (NCB). While dismissing the said
petition this Court held that:-
"7. It is for the trial court to go into the contention
raised in this application and merely because I am
pps 13 of 24
1208 of 2011.doc
not inclined to exercise my inherent powers would not
prevent the applicant from raising the contentions and
placing materials in supporting thereof before the trial
court. These materials would be certainly adverted
to by the trial court. This is not a case where inherent
powers should be exercised to quash the entire
special case in question. Considering the objects
and purpose of the NDPS Act and in public interest
as well, powers under section 482 which in any event
have to be sparingly exercised, need not be
exercised in the facts and circumstances of this
case."
19. A perusal of the said order reveals that on considering the
object of the Act and the public interest involved, this court had
deemed it fit not to exercise its inherent jurisdiction to quash the
proceedings pending before the Intelligence Officer, NCB. The order
further reveals that this Court had left the issues open with liberty to
the applicant to raise the same before the trial court. Under the
pps 14 of 24
1208 of 2011.doc
circumstances, the fact that the High Court had refrained from
exercising its inherent powers, which are otherwise to be exercised
sparingly in exceptional cases, would not debar the Applicant from
filing an application for discharge particularly when the High Court
had not gone into the merits of the matter.
20. Now coming to the merits of the matter, it is not in dispute that
M/s. Gopish Pharma has been issued a license under the Drugs and
Cosmetic Act and Rules to manufacture drug formulation including
Buprenorphine hydrocloride injection IP (Norphazien). It may be
mentioned that section 80 of the N.D.P.S. Act provides that the
provisions of the N.D.P.S. Act or the Rules made thereunder are in
addition and not in derogation to the Drugs and Cosmetic Act 1940
or the Rules made thereunder. In D. Ramakrishnan (supra) the
Appellant and the other co-accused in the said case held licenses
under the Drug and Cosmetics Act, 1940 and had general
permission for import and export. The Apex Court after considering
the provision of section 80 held that Drugs and Cosmetics Act do not
deal with exports but provisions of Customs Act do. The Apex Court
pps 15 of 24
1208 of 2011.doc
held that the licenses were therefore, required to comply with the
specific requirement of the Act and the Rules. In the light of above,
in my considered view, the fact that the M/s. Gopish Pharma was
holding a license under Drugs and Cosmetics Act, would not absolve
it from complying with the relevant provisions of the N.D.P.S. Act and
the rules framed thereunder.
21. In the instant case it is alleged that the applicant has
contravened the provisions of Section 8 (c) of the Act and Rule 67 of
the N.D.P.S. Rules 1985. In this regard a perusal of the seizure
panchanama dated 11.1.2005 reveals that total 11950 ampules of
Norphazien Buprenorphine injections IP 2 ml of Batch No.NP 927
manufactured by M/s. Gopish Pharma, were seized. The substance
concerned was mentioned in entry No.92 in schedule to the N.D.P.S.
Act and it did not find place in Schedule 1 to the N.D.P.S. Rules
1985. A perusal of the grounds raised in the application under
consideration reveals that the prayer for discharge as well as
challenge to the impugned order was mainly based on the decision
of the Apex Court in Rajesh Kumar Gupta (supra). This controversy
pps 16 of 24
1208 of 2011.doc
is no longer res integra in view of the decision of the larger bench of
the Supreme Court in Union of India Vs. Sanjeev V. Deshpande,
(Criminal Appeal No.660 of 2007). In the said decision the Apex has
held that the conclusion reached by the various High Courts that the
prohibition contained under section 8 is not attracted in respect to all
those psycotropic substances which find mention in the Schedule to
the Act but not in the Schedule 1 to the Rules framed under the Act,
is untenable. The Apex Court also did not agree with the conclusion
(reached in Rajesh Kumar Gupta Case) that the prohibition
contained in Rule 63 of the 1985 Rules is applicable only to those
narcotic drugs and pshycotropic substances which are mentioned in
Schedule 1 to the Rules and not to the psychotropic substances
enumerated to the Schedule to the Act. The challenge raised by the
applicant therefore falls flat in view of the decision of the larger
bench of the Apex Court in Sanjeev V. Deshpande (supra) that
Rajesh Kumar Gupta (supra) was wrongly decided.
22. It is also pertinent to note that the application for bail and the
discharge application are to be decided on different parameters.
pps 17 of 24
1208 of 2011.doc
The Apex Court in Union of India v. Shiv Shankar Kesari (2007)
7SCC 789, while considering the application for bail with reference
to Section 37 of the Act is not called upon to record a finding of not
guilty. It is for the limited purpose essentially confined to the
question of releasing the accused on bail that the court is required to
see if there are reasonable grounds for believing that the accused is
not guilty and record its satisfaction about existence of such ground.
But the court has not to consider the matter as if it is pronouncing a
judgment of acquittal and recording a finding of not guilty." It is thus
evident that the findings recorded in the bail application are of prima
facie nature. Hence, the fact that the applicant has been released
on bail would not ipso facto lead to a conclusion that the charge is
groundless. Hence, the judgment relied upon by the applicant
Indrapal Singh and Deepak Monga (supra) which are on the point of
bail are not relevant to decide the present application.
23. The other contentions raised by the lnd. counsel for the
applicant do not find place in the application. Nevertheless, it is not
in dispute that the applicant herein is the proprietor of M/s.Gopish
pps 18 of 24
1208 of 2011.doc
Pharma. The material on record prima facie reveals that the seized
goods were described in the consignment note as well as in Form
as 'necklace'. The records thus prima facie reveal that there was
mis-description of the goods which were seized.
24. The material on record prima facie reveals that the statement
of the applicant was recorded under section 67 of the N.D.P.S. Act,
1985. A perusal of the said statement reveals that the Applicant had
admitted having sold 25000 ampules of Norphazien injections of
Batch No. NP 927 to its sole distribution agent M/s. G & G Medicines
of which he is one of the partners having 80% share with the other
two partners having share of 10% each. The applicant had further
stated that he was solely responsible for the functioning of M/s. G &
G. medicines and that the other two partners do not attend the day
to day business of the said firm. The applicant had stated that M/s.
G & G. Medicines Company had sold 12000 Norphazien injections to
M/s. Shiv Chem Agency and that Pradeep Bhatia, the proprietor of
Shiv Chem Agency had taken delivery of the said ampules of
Nophrazien injections in his presence. The applicant had produced
pps 19 of 24
1208 of 2011.doc
four invoices showing the sale of 12000 ampules of Norphazien
injections to M/s. Shiv Chem Agencies having shop at Bhagirath
palace market, Delhi. The cash memo/ sale records indicate that
M/s. G.& G. Medicines had sold total 12000 ampules of Norphazien
injections of batch No. NP 927 to M/s. Shiv Chem Agencies.
25. Coming to the admissibility of the statement recorded under
section 67 of NDPS Act, the Apex Court in Kannhaiyalal and Ram
Singh (supra) has held that the confessional statements recorded by
the officers of Central Bureau of Narcotics are admissible in
evidence. In Nirmal Singh (supra) the Apex Court had doubted the
dicta in Kannhaiyalal. In Tufan Singh the Apex Court has held that it
is necessary to have a relook into the ratio of Kannhaiyalal case and
has therefore, referred the issue as to whether the officer
investigating the matter under N.D.P.S. Act would qualify as police
officer or not, to a larger Bench.
26. It is pertinent to note that as on date there is no authorative
pronouncement of the larger Bench on the issue and as such the law
pps 20 of 24
1208 of 2011.doc
laid down by the Apex Court in Kannhaiyalal and Ram Singh still
hold the field. Furthermore, in the recent case of Bhawar Singh
(supra) the Apex Court has held that "In view of the principle of law
laid down in Badku Jyoti Savant Vs. State of Mysore [(1966) 3
SCR 698] r/w principle of law laid down in Rajkumar Karwar Vs.
Union of India and Ors. [AIR 1991 SC 45], we are of the opinion
that the confessional statements made by the accused to the officers
of the Narcotic Bureau are admissible in evidence on record".
27. In the light of the above, prima facie the confessional statement
of the Applicant cannot be said to be inadmissible in evidence. The
decision in the case of Balmukund is not applicable to the facts of
the present case as the question whether the confession was
voluntary or whether it was made under duress or coercion will have
to be decided only on merits and not at the stage of discharge.
28. It is also pertinent to note that in addition to the confessional
statement of the Applicant, there is other prima facie material on
record in the form of the statement of Pradeep Bhatia, proprietor of
pps 21 of 24
1208 of 2011.doc
M/s. Shiv Chem Agency, who has stated that he had never
purchased any medicine including 12000 ampules of Norphazien
injections from M/s.G & G. Medicine Co. He has stated that the
applicant had been requesting him to give an acknowledgment for
having received 12000 ampules of Norphazien injections and that
the applicant had offered to compensate him in terms of money. Said
Pradeep Bhatia had further stated that in February, 2005 the
Applicant had told him that he had sold 12000 Norphazien injections
to someone and prepared a bill in the name of M/s. Shiv Chem
Agency. The applicant had promised to pay him Rs.300000/- if he
were to sign the acknowledgment receipt in respect of 12000
Norphazien injections. Said Pradeep Bhatia was shown the bills /
invoice in the name of Shiv Chem Agency and he had stated that he
was seeing the said bills for the first time. He had denied having
ordered or received Norphazien injections from M/s. G. & G.
Medicine.
29. The statement of Pradeep Bhatia prima facie indicate that the
applicant had prepared fake invoices in the name of M.s, Shiv Chem
pps 22 of 24
1208 of 2011.doc
Agency. Suffice it to say that at the stage of framing of charge, the
trial Court was not required to weigh the evidence and or to go into
the merits of the case but was required to consider whether the
material on record was prima facie sufficient to proceed against the
applicant. In the instant case the material on record prima facie
indicates that the Applicant had sold 12000 ampules of Norphazien
injections containing Buprenorphine a Psycotropic substance to one
Raghu, who did not have a valid drug license by issuing fake
invoices in the name of M/s. Shiv Chem Agency. Furthermore the
said psychotropic substance was not transported for medical or
scientific use but was transported by describing the same as
'necklace'. The applicant had not issued any consignment note in
form 6 for transport of the Psycotropic substance. It is to be noted
that the invoices/ cash memo in question are dated 11.9.2004,
15.9.2004, 18.9.2004 and 20.9.2004 whereas the proviso to Rule 67
(4) was introduced on 25.2.2005. Hence, the said proviso would not
apply to the sales in question. Having perused the copy of the
N.D.P.S. Rules 1985 from 2002 edition of N.D.P.S. Act and Rules,
which was produced by the learned counsel for the Respondent it is
pps 23 of 24
1208 of 2011.doc
evident that consignment note was always a requirement under the
Rules. In the instant case the applicant had not complied with the
said requirement.
30. Thus, the material on record prima facie indicates that the
applicant had violated the provisions of section 8 (c) of the Act and
Rule 67 framed thereunder. Hence, there is no infirmity in the
impugned order dated 16.8.2011.
31.
Under the circumstances and in view of discussion supra the
application is dismissed.
(ANUJA PRABHUDESSAI, J.)
At this stage, Mr. Ayaz Khan, the learned Counsel for the applicant
requested to stay the order as he wants to challenge the same
before the Apex Court. The request is objected by learned Counsel
Ms. Gonsalves. In the interest of justice trial Court shall not frame
the charge for a period of two weeks from today.
( ANUJA PRABHUDESSAI, J.)
pps 24 of 24
