E. Narayanan And Mahesh Majumdar vs Central Bureau Of Narcotics
2002 Latest Caselaw 1548 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This order will dispose of two bail applications one filed by E. Narayanan and the other by Mahesh Majumdar. Wife of E.Narayanan is the proprietress of M/s Sarafine Chemcials, vadodara but the business is being run by E.Narayanan. Mahesh Majumdar is working as as accountant in that concern. A criminal complaint has been filed by the respondent Central Bureau of Narcotics (NCB) against them for their prosecution for offences under Section 9A read with 25A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter NDPS Act). They were arrested on 28.12.2001 and since then are in judicial custody. Both have submitted applications under Section 439 of the Cr.P.C. for their release on bail.

2. The allegation against these accused, briefly, stated, is that intelligence report was received by the officers of the respondent that four cartons containing Acetic Anhydride has been dispatched from Vadodara to Delhi through Jaipur Golden Truck under a builty dated 29.10.2001. Acetic Anhydride is to be utilised for manufacturing of heroine. One Attar Singh of Bhawani Mandi was suspected. The intelligence report was developed further and it was found that the said Attar Singh was in constant contact on telephone at Vadodara. A surveillance was put on the office of Jaipur Golden Transport Company but nobody came to collect the consignment till 7.11.2001. The officers of the respondent thereupon with the approval of the transport company opened the cartons on 12.12.2001. They were found containing 16 bottles containing Acetic Anhydride weighing in total 65.600 kgs. They were taken into possession. Sample was taken out, other paper work and formalities were completed and the consignment was seized. As per the bill dated 29.10.2001 of Shree Laxmi Fine Chem, Vadodara the cartons were supposed to contain 16 x 2.5 lts. Paraffin Liquid Light. Acetic Anhydride is a controlled substance and is covered under Section 9A of the NDPS Act, 1985 for which legal documents were mandatory and they were not found with the consignment. Summons for inquiry under Section 67 of NDPS Act dated 14.12.2001 was sent to the consignee M/s Aggarwal Agencies at the address given in the delivery note/bill of Shree Laxmi Fine Chem, Vadodara dated 29.10.2001 but the same was received back with the report that the address did not exist at Ghanta Ghar, Delhi. They inquiries disclosed that there was telephonic contact between E. Narayanan, M/s Sarafine Chemicals, Vadodara and the said Attar Singh of Bhawani Mandi. Searches of the house of E.Narayanan accused wee conducted on 24.12.2001. The search of the business premises of Sarafine Chem. was also conducted in the presence of the witnesses and both these accused petitioners. Nothing incriminating was recovered from the house of E. Narayanan petitioner but the search of the premises of Sarafine Chemical on 24.12.2001 resulted in the recovery and seizure of some documents and other corroborative evidences including letter head, bill books of a non-existing company M/s Shree Laxmi Fine Chemical Industries, Rubber Stamps, packing material and documents relating to 40 lts. Acetic Anhydride were also recovered in addition to that false labels of M/s Ranbaxy and M/s S.D. Fine Chemicals, Boisar. Physical verification of the stock of Acetic Anhydride revealed that 511 kgs. Acetic Anhydride was deficient. 27 copies of the Lorry Receipts of earlier transaction were also seized from the business premises of Sarafine Chemical which related to the illicit trading of this Chemical by M/s Shree Laxmi Fine Chem Industries, Baroda. Many of the delivery notes/bills/consignment notes sere addressed to self at Villages of Boliya, Baroda, Pipliya Mandi Jaora, Shyamgarh etc. and they were also seized. In the voluntary statement tendered under Section 67 of NDPS Act dated 24.12.2001, 26.12.2001 and 27.12.2001 the petitioner E. Naraynan of Sara Fine Chemicals admitted the recovery and seizure of incriminating articles and documents and also stated that (M/s Sara Fine Chemicals was the sole proprietorship concern of this wife but he was managing its business and he also stated that he had sold Acetic Anhydride without consignment notes in the name of M/s Shree Laxmi Fine Chem. Industries and he also deposed that he had illegally sold Acetic Anhydride to one Rajinder Singh of Bhawani Mandi whose telephone number was also revealed by him. He was confronted with the copy of G.R. dated 29.10.2001 at Jaipur Golden Transport Company Along with bill he stated that Acetic Anhydride was a controlled substance and could not be sold without consignment note and he had declared the goods as Parraffin liquid Light and had sent the copy of the same to Rajinder Singh through Madhu Courier, Vadodara. It was also stated that the sale process was collected from Rajinder Singh by Mahesh Majumdar at Ramganj Mandi, Rajasthan and that all the labels were provided by Rajinder Singh and crown cap were purchased by him from the local market. In the voluntary statement made by Mahesh Majumdar petitioner recorded on 24.12.2001, 26.12.2001 and 27.12.2001 under Section 67 of the NDPS Act he also stated that he met Rajidner Singh of Bhawani Mandi and gave his telephone number and that he used to visit Ramganj Mandi to receive payments from Rajender Singh and thus so far they had sold about 750 lts. of Acetic Anhydride illegally to Rajinder Singh. He also stated that he had mostly prepared the documents declaring the goods as detergent power instead of Acetic Anhydride and that both the accused had deposed about he details of consignment in which Acetic Anhydride was illegibly dispatched by them to Rajinder Singh of Bhawani Mandi.

3. Vijay Bhai, Brach Manager, M/s Madhur Courier Services, Vadodara in his statement recorded under Section 67 of NDPS Act also deposed that Sarafine Chemical, Baroda used to send letters through their courier specially to one Rajinder Singh of Bhawani Mandi in the name of Lovendra Singh as sender. He stated that since January 2001 Sarafine had sent about 23 letters to Rajinder Singh in the name of Lovendra Singh through their courier and that both these petitioners used to visit their office for sending their documents.

4. Abhay V. Shetty of Beena Chemicals, Baroda also made statement under Section 67 of the NDPS Act in which it was stated that Sarafine Chemicals was one of their client for Acetic Anhydride EPTA and Acetic Acid and that he use to supply Acetic Anhydride to Sarafine Chem. He submitted 17 declaration form of Sarafine chemcials for suing Acetic Anhydride, declaration of their firm, endorsement by Central Excise authority for purchase of Acetic Anhydride and supply to actual consumers, copy of Central Excise Registration issued to M/s Been a Chemicals, Schedule to Registration Certificate, accounts statement of Sarafine Chemicals form 1.4.1999 to 31.3.2001, account statement of Sarafine Chemcials from 14.2.2001 to 11.12.2001, SSI Certificate of Govt. of Gujrat for Sarafine Chemicals and undertook to produce the remaining documents like consignment record and RG -23G, quarterly return records etc. All these documents disclosed that the petitioner E. Narayanan was procuring Acetic Anhydride from Abhay V. Shetty of Beena Chemicals. Scrutiny of the register for Acetic Anhydride maintained by Sarafine Chemicals form the period form 1.1.2000 revealed that the stock of Acetic Anhydride should be 521.5 kgs. On 24.12.2001 but it was found to be only 10 kgs. As such there was shortage of 511 Kgs. of Acetic Anhydride. The statutory record was also not properly maintained. 10 kgs. of Acetic Anhydride which was found was also taken into possession by the officers of the respondent for further investigation. On 24.12.2001 search of the residential premises of Attar Singh of Bhawani Mandi was also conducted and three Lorry Receipts of M/s Lucky Transport Corporation showed the consignor and M/s Shree Laxmi Fine Chemical, Baroda and self as consignee were recovered but the search of the shop of Attar Singh did not yield any incriminating material. It seems that Attar Singh has represented himself to be Rajender Singh to the petitioners and was the same who was indulging in illegal trading of Acetic Anhydride.

5. Dheeraj Jain, agent of M/s Madhu Courier in Bhawani Mandi was joined in investigation and he tendered his voluntary statement whereby he deposed that the letters meant for Rajender Singh had to be delivered to Chhabra Tyres, Gurudwara Nehru Park, Bhawani Mandi. He explained the identification of Rajender Singh as the same disclosed by the accused persons. These accused persons as such were arrested on 28.12.2001. Other formalities and requirement of law were completed against them.

6. Narender Kumar Dixit, Clerk, M/s Jaipur Golden Transport Co., Roshnara Road, Delhi also tendered his voluntary statement under Section 67 of NDPS Act on 24.1.2001 in which it was stated that his company has received two other consignments vide two bills dated 17.10.2001 containing three boxes and on 27.10.2001 containing four boxes were delivered on 26.11.2001 to one Umesh the basis of consigner's copy who was not known to them. The consignor of those goods was also Shree Laxmi Fine Chemical, Baroda and the consignee was self but as per delivery note the consignee note, the consignee was Shiv Enterprises, 20/A, Jawahar Nagar, New Delhi and M/s Manoj Enterprises, 163 Ropa Nagar, Opp. Ghantaghar, Delhi. Both these addresses were found fictitious and it seems that those consignments were cleared on behalf of Rajender Singh @ Attar Singh of Bhawani Mandi. In his voluntary statement under Section 67 of NDPS Act, Jagdish Nagindas Doshi, General Manager, M/s S.D. Fine Chemicals, Boisar stated that they have no business relations with M/s Sarafine Chemicals and have never delivered any Chemicals to them. When he was confronted with the labels, caps and other packing materials, relating to the seized goods recovered from Sarafine Chemcials he stated that the same were forged one and during his statement he surrendered original/genuine copy of the label as well as their original packing material as piece of evidence. B.M. Madan Rao, Production Manager of Ranbaxy Fine Chemcials Limited, New Delhi in his voluntary statement dated 22.2.2002 tendered under Section 67 of NDPS Act also stated that the seized label of Ranbaxy is a forged one and explained the reasons in his statement. Investigation revealed that Rajender Singh is none other than Attar Singh of Bhawani Mandi. Attar Singh has not joined the investigation despite repeated summoning and a complaint has already been filed against him by the respondent for non-compliance of the summons which is pending. Prosecution against him will be field at appropriate stage. The accused persons have committed offence under Section 25A and 29 of the NDPS Act and, therefore, should be punished.

8. Notice of the bail application was served on the respondent-NCB but nobody has appeared at the hearing. Therefore, arguments of the counsel for the petitioners were heard.

9. Counsel for the petitioner E. Narayanan has argued that the only incriminating evidence against his petitioner is the recovery of 40 kgs. of Acetic Anhydride at the godown of a transport company and some irregularities in the papers accompanying the consignment. He submitted that the petitioner is a licensed dealer of this Chemical, therefore, small infraction with the rules of maintaining registers and documents etc., should not disentitle him to the grant of bail. He referred to Clause 5 of Narcotic Drugs & Psychotropic Substances (Regulations of Controlled Substances) Order 1993 (hereinafter Order) which requires a person, who sells the controlled substances to a buyer in a transaction of 100 kgs. and above, shall sell only after buyer establishes his identity by production of a documents like industrial license or any registration certificate in order to establish his identity and upon declaration being made for the purpose for which the control substance was being purchased. He stated that in the instant case only 40 kgs., of Acetic Anhydride is involved. Therefore, it will not be a bulk selling of controlled substance requiring compliance of Clause 5 aforesaid. He also placed reliance on the judgment of the Rajasthan High Court in Bheru Lal v. State of Rajasthan, 1996 CRl.L.J. 845 where one litre bottle of Acetic Anhydride concealed in a field was recovered and it was held that the possession of 1 Ltr of this Chemical by itself would not be offence punishable under the NDPS Act. As a consequence, the bail was granted to the accused.

10. On behalf of Mahesh Majumdar, counsel for the petitioner argued that this petitioner was only an accountant and he was at carrying on the orders of his master and had not concern with the recovery of controlled substance. Therefore, his case deserves to be dealt with leniency and he should be granted bail.

11. I have given careful consideration to the submissions made at the bar. Acetic Anhydride is a controlled substance on which the Order applies. This regulation came into force on 15.4.1993. Clause 2 of the Order defines the various expressions used in the Order. Clause 3 of the Order provided that any person who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintain daily accounts of his activities in the prescribed forms which shall be preserved for a period of two years and any such loss thereof would be promptly notified to the Director General, Narcotics Control Bureau of NCB. Clause 4 deals with the transport of controlled substance and requires the consignment of such substance to be moved from one place to another only when it is accompanied by Consignment Note in the prescribed form which is to be prepared in triplicate etc Clause 5, as noticed earlier, relate to the bulk selling of controlled substance and requires selling of the controlled substance weighing 100 kgs. to a person who has established his identity by documents which have been mentioned therein Clause 6 deals with the labelling of consignments for export or import. Clause 7 requires filing of quarterly returns in the prescribed form to the Deputy Director, NCB etc.

12. The NDPS Act was amended to add Section 25A for providing punishment for contravention of the orders made under Section 9A. The punishment provided is rigorous imprisonment for a term which may extend to 10 years besides fine which may extend to 1 lac of rupees. Court has also been given powers to impose fine exceeding Rs. 1 lac after giving reasons. Section 9A which has also been inserted in 1989 is important as its contravention is punishable by Section 25A. Sub-section (1) of Section 9A authorise the Central Government to provide for regulating and prohibiting the production, manufacture, supply, distribution, trade or commerce of any narcotic drug or psychotropic substance if it is expedient to do so in public interest. Sub-section (2) proclaims that in exercise of the powers given by Sub-section(1) an order made may provide for regulating by license permits or otherwise the production, manufacture, possession, transport, import inter-State, export inter-State, sale purchase, consumption, use, storage, distribution disposal or acquisition of any controlled substance. Narcotic Drugs & Psychotropic Substances (Regulation of Controlled Substances) Order 1993 has been issued by the Central Government in exercise of the powers conferred by Section 9A above. As noticed, its violation is punishable by Section 25A of the act.

13. The allegations made against these two petitioners in the complaint and which have not been controverter and which at this stage cannot be ignored make out commission of grave and serious offence by the two petitioners. Indeed the petitioner Mahesh Majumdar is an employee of the petitioner E. Narayanan but from the allegations made in the complaint it appears that they were hand in glove and were involved in the sale and supply of Acetic Anhydride, a controlled substance in gross violation of the Narcotic Drugs & Psychotropic Substances (Regulation of Controlled Substances) Order 1993 and the NDPS Act. The facts as disclosed in the complaint show the involvement of these two petitioners in the recovery of not only 40 kgs. of Acetic Anhydride in the godown of a transport company but it disclose running of the sale of the controlled substance in the name of fictitious firm, fabrication of documents in fictitious name in order to facilitate the supply of the controlled substance for its clandestine use for manufacture of heroine. The documents which have been seized from the premises of Sarafine Chemicals which is managed by petitioner E. Narayanan with the help of petitioner Mahesh Majumdar disclose the manner in which violation of the Order was being done by these petitioners not in respect of one transaction but it was a long series of transactions. Therefore, prima-facie there is sufficient incriminating material to show that the petitioners are guilty of the offence punishable under Section 25A of the Act.

14. The facts of the case in Bheru Lal (supra) are quite distinguishable on facts, so the judgment does not come to the rescue of the petitioners herein.

15. Having regard to the gravity of the offence, the possibility of the tampering of evidence and the accused fleeing from justice it would not be prudent at this stage to release these petitioners on bail.

Both the petitions are accordingly dismissed.