Delhi High Court
Niranjan Jayantilal Shah vs Directorate Of Revenue ... on 19 November, 2013
Author: Sunita Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
DATE OF DECISION: 19th NOVEMBER, 2013
+ BAIL APPLN. 1202/2013
NIRANJAN JAYANTILAL SHAH ..... Petitioner
Through: Mr. S.S. Das, Advocate
versus
DIRECTORATE OF REVENUE INTELLIGENCE ..... Respondent
Through: Mr. Satish Aggarwal, Advocate
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. This is a petition filed by the petitioner under Section 439
Cr.P.C. for grant of regular bail.
2. It is submitted by learned counsel appearing for the petitioner
that respondent had filed a criminal complaint against the petitioner
and others which is pending before the Special Judge, Narcotic Drugs
and Psychotropic Substances Cases, Saket Courts, New Delhi being
S.C. No. 09A/12 for the offences punishable under Section 9A, 25A
and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985
('NDPS' Act) on the allegations that on 15th December, 2011 on the
basis of secret information the officers of Directorate of Revenue
Intelligence ('DRI') have recovered and seized 100 kgs. of
Pseudoephedrine from a vehicle bearing registration No. HR-18A-0077
and it is alleged that at that time petitioner was driving the said vehicle.
Nothing was recovered from the possession of the petitioner or at his
instance. The substance in question is neither narcotic drug nor
psychotropic substance but it is a controlled substance as defined under
Section 2(vii) (d) of the NDPS Act. Rigour of Section 37 of the NDPS
Act is not attracted in the present case. No minimum punishment has
been prescribed for the possession of the aforesaid contraband
substance. The substance in question has lot many legitimate uses and
the said substance is also one of the main component for manufacturing
cough syrup and it has many other medical uses. Earlier a bail
application was moved which was dismissed. The petitioner is in
custody since 15th December, 2011, as such, he be released on bail.
Reliance was placed on Bail Application No. 216/2005 titled as N.C.
Chellathambi v. N.C.B decided on 20th April, 2005, Bail Application
No. 2036/2004 titled as Ajay Aggarwal v. Narcotics Control Bureau
decided on 20th January, 2005, Criminal Misc No. M.27654/2008 titled
as Rajiv Kumar @ Sukha v. The State of Punjab decided on 6th
March, 2009, Criminal Application No. 165/2011 titled as Faiyaz
Ahmed Rasool Shaikh v. Union of India decided on 5th May, 2011 and
Chakrapani Dutt v. State CDJ 2006 DHC 528.
3. The application is opposed by Mr. Satish Aggarwal, learned
counsel for the respondent. In the reply it is submitted that the earlier
bail application was dismissed by this Court vide a speaking order
dated 30th August, 2012 and there is no fresh ground nor is there any
change in the circumstances. Reference was also made to the order
dated 29th March, 2012 in Bail Application No. 810/2011 titled as
Rizwan Ahmad v. DRI which was also a case of controlled substances
and the application was dismissed. Even the Special Leave Petition
was dismissed. Charges have been framed and evidence is being
recorded. There is no delay on the part of the prosecution. Co-accused
has not been granted bail. It is a case of recovery and seizure of 100
kgs. of Pseudoephedrine. Keeping in view the heavy recovery, the
application is liable to be dismissed.
4. Rebutting the submission of learned counsel for the respondent it
was submitted by learned counsel for the petitioner that Rizwan
Ahmad, relied upon by learned counsel for the respondent, does not
help him, inasmuch as, in that case also recovery was of the controlled
substance and therefore Section 37 of NDPS Act was not applicable,
yet on that ground alone the application was dismissed. SLP was
dismissed by a non-speaking order. In the subsequent case titled as
Department of Customs v. Hemant Kumar 2012 [4] JCC [Narcotics]
178 it was observed that the judgment of Rizwan Ahmad is contrary to
the explicit language of Section 37 of NDPS Act. The same is per
incuriam. That being so, the said order does not come in the way of
the petitioner for getting the relief of bail.
5. As per the prosecution case on 14th December, 2011 official of
Directorate of Revenue Intelligence received information that huge
quantity of controlled substance would be transported in a Toyota
Innova Car bearing registration No. HR-18A0077 which would be
coming near Kamal Cinema, Safdarjung Enclave, New Delhi at about
10:30 a.m. on 15th December, 2011. Raiding party was constituted by
the officials of respondent wherein public witnesses were also joined.
Toyota Innova car was intercepted and 100 kgs. of Pseudoephedrine
was recovered from the vehicle which was being driven by the
petitioner. Co-accused Harjinder Ram and one Sh. Sanjay Singh were
also in the car. During the investigation complicity of Sanjay Singh
with the crime could not be established, thus he was made a witness.
After completion of investigation, complaint was filed against the
petitioner and co-accused Harjinder Ram and the trial is still pending.
6. During the course of arguments, it was fairly conceded by
learned counsel for the respondent that bar of Section 37 of the NDPS
Act is not attracted in the present case since as per the prosecution 100
kgs. of Pseudoephedrine was recovered which is a controlled substance
within the meaning of Section 2 (vii) (b) of the Act. Pseudoephedrine
is not a narcotics drug as envisaged under Section 2 (vii) (a) of the Act.
In N.C. Chellathambi (supra) one tonne of ephedrine was recovered, in
Ajay Aggarwal (supra) recovery was of 1600 liters of Acctic
Anhydride, in Rajiv Kumar @ Sukha (supra) recovery was of 25 kgs
powder ephedrine hydrochloride, in Faiyaz Ahmed Rasool Shaikh
(supra) and another recovery was of 290 kgs of pseudoephedrine, in
Chakrapani Dutt (supra) recovery was of 100 liters of Acctic
Anhydride, and in all these cases since the accused had remained in
custody for certain period, they were released on bail. As regards
Rizwan Ahmed, where the bail application was dismissed, it is fairly
conceded by learned counsel for DRI that DRI had not taken any plea
that the petitioner was not entitled to bail due to rigour of Section 37 of
the NDPS Act on which ground alone the application was dismissed,
however, it was submitted that since the SLP has been dismissed,
therefore, the petitioner is not entitled for bail. In Department of
Customs (supra) relied upon by learned counsel for the petitioner, it
was observed that the judgment in Rizwan Ahmad is contrary to the
explicit language of Section 37 of NDPS Act and the same is per
incuriam.
7. Keeping in view the totality of facts and circumstances of the
case, coupled with the fact that the petitioner is in custody since 15th
December, 2011, he is admitted to bail on his furnishing personal bond
in the sum of Rs.50,000/- with one surety in the like amount to the
satisfaction of the concerned Trial Court. Petitioner shall deposit his
passport, if any, with the Trial Court and shall not leave the country
without the permission of the concerned Trial Court. He is further
directed to furnish his current address to DRI and in case of any change
in address, DRI be informed immediately.
8. The application stands disposed of in the above terms.
9. A copy of the order be given dasti.
SUNITA GUPTA
(JUDGE)
NOVEMBER 19, 2013
AK
