Delhi High Court
Department Of Customs vs Hemant Kumar on 12 September, 2012
Author: Manmohan
4
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2110/2008
DEPARTMENT OF CUSTOMS ..... Petitioner
Through: Mr. Sushil Kaushik, Advocate for
counsel for the petitioner
versus
HEMANT KUMAR ..... Respondent
Through: Mr. Rishi Pal Singh, Advocate
% Date of Decision: 12th September, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J : (Oral)
1. Present petition has been filed for cancellation of bail granted to the
respondent vide order dated 26th February, 2008 passed by learned Special
Judge, NDPS, New Delhi in case titled as 'Custom v. Pankaj Kumar and
others'. Learned Special Judge, NDPS, New Delhi while granting bail to the
respondent has observed as under:-
"Considering the facts that all accused in this case are
charged for offence under Section 9-A read with Section 25-
A and 29 of NDPS Act and co-accused have already been
granted bail. Since rigour of Section 37 NDPS Act is not
applicable to the facts of the present case, applicant-accused
Hemant Kumar is also admitted to bail on furnishing
personal bond in the sum of Rs.25,000/- with one surety
each in the like amount. Bail application stands disposed of
accordingly."
(emphasis supplied)
2. Learned counsel for the petitioner states that as the respondent is
alleged to have been found in possession of a controlled substance, Section
9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short
'NDPS Act') is attracted and the respondent is liable to be punished under
Section 25A of the NDPS Act.
3. He further submits that rigours of Section 37 of the NDPS Act would
be applicable to the present case. In this connection, he has drawn my
attention to a judgment of this Court in Rizwan Ahmed v. Directorate of
Revenue Intelligence 2012 LawSuit (Del) 729 wherein a learned Single
Judge of this Court has observed as under:-
14. In view of my above discussion, it comes out to be that
Ephedrine Hydrochloride though was not a narcotic drug or
psychotropic substance, but was a controlled substance and the
export of the same was prohibited as per the Order of Central
Government made under Section 9 of the NDPS Act. There is
apparently violation of all the clauses i.e. (3), (4), (6) of the said
Order of 1993.
15. Further, since the offence was apparently seen to have been
committed under Section 25A which is punishable with rigorous
imprisonment for a term which may extend to 10 years and also
with fine which may extend to Rs.1 lac, the petitioner is also not
entitled to be released on bail in view of Section 37 (1)(b) of NDPS
Act. The provisions contained in this section are made applicable
and operative "notwithstanding anything contained in Cr.P.C.".
The limitation of granting bail specified in clause (b) of sub section
(1) of Section 37 are in addition to the limitations under Cr.PC or
any other law for the time being in force for grant of bail. Having
regard to the entire factual matrix, it is not possible for this Court
to record satisfaction that there are reasonable ground to believe
that the petitioner is not guilty of the offences for which he has
been charged and that he is not likely to commit any offences
while on bail. Therefore, the petitioner cannot be granted bail in
view of provisions of Section 37(i)(b) of NDPS Act also."
4. Sections 2(viid), 9A, 25A and 37(1) of the NDPS Act are reproduced
hereinbelow:-
"2. Definitions.--In this Act, unless the context otherwise
requires,--
xxx xxx xxx
(viid) "controlled substance" means any substance which the
Central Government may, having regard to the
available information as to its possible use in the
production or manufacture of narcotic drugs or
psychotropic substances or to the provisions of any
International Convention, by notification in the Official
Gazette, declare to be a controlled substance........
xxx xxx xxx
9A. Power to control and regulate controlled substances--
(1) If the Central Government is of the opinion that,
having regard to the use of any controlled substance in
the production or manufacture of any narcotic drug or
psychotropic substance, it is necessary or expedient so
to do in the public interest, it may, by order, provide for
regulating or prohibiting the production, manufacture,
supply and distribution thereof and trade and commerce
therein. .........
xxx xxx xxx
25A. Punishment for contravention of orders made under
section 9A.--If any person contravenes an order made
under section 9A, he shall be punishable with rigorous
imprisonment for a term which may extend to ten years
and shall also be liable to fine which may extend to one
lakh rupees:
Provided that the court may, for reasons to be recorded
in the judgment, impose a fine exceeding one lakh
rupees.
xxx xxx xxx
37. Offences to be cognizable and non-bailable.--(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
[offences under section 19 or section 24 or section 27A
and also for offences involving commercial quantity]
shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail."
(emphasis supplied)
5. A combined reading of Sections 37, 2(viia) and 2(viid) of NDPS Act,
prima facie indicate that Section 37 is not in relation to the controlled
substance.
6. Even in the reply filed by the Customs Department before the Special
Judge, NDPS, New Delhi, it has been admitted in para 4 that Section 37 of
the NDPS Act is not applicable to the present case.
7. Since the aforesaid judgment of Rizwan Ahmed (supra) is contrary to
the explicit language of Section 37 of the NDPS Act, the same is per
incuriam.
8. At this stage i.e. after the order had been dictated, learned counsel for
the petitioner states that the goods seized from the respondent are not
controlled substances but are psychotropic substances.
9. This, to say the least, is strange as Special Judge, NDPS, New Delhi
had proceeded on the basis that the respondent had been charged with
possession of a controlled substance chargeable under Section 9A read with
Section 25A of the NDPS Act and there is no averment or ground in the
petition that the seized substance is not a controlled substance or that
Sections 9A and 25 A are not applicable. In fact, the present petition is
supported by an affidavit of an officer of the Customs Department and has
been pending in this Court for the last more than four years.
10. However, in the interest of justice, one opportunity is given to the
petitioner to amend its petition, if it so desires, subject to payment of costs
of Rs.50,000/-. Half the costs shall be paid to the respondent and the other
half shall be deposited with the Delhi High Court Legal Services Committee
within two weeks.
List on 09th November, 2012.
MANMOHAN, J
SEPTEMBER 12, 2012
NG
