Delhi High Court
Yashpal Sinhmar & Anr. vs Narcotics Control Bureau on 16 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th FEBRUARY, 2022
IN THE MATTER OF:
+ BAIL APPLN. 4170/2021 & CRL.M.A. 540/2022
YASHPAL SINHMAR ...... Petitioner
Through Mr. V K Shukla, Senior Advocate
with Mr. Rohit Pandey, Mr. Varad
Dwivedi, Advocates
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through Mr. Subhash Bansal, Sr. Standing
Counsel for NCB with Mr. Shashwat
Bansal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. Vide the instant petition under Section 439 Cr.P.C, the petitioner
seeks bail in NCB Case No. VIII/48/DZU/2021 dated 23.8.2021 registered
under Sections 8, 22(c) and 23 NDPS Act.
2. Brief Facts leading up the present case are given as follows-
i. The Petitioner is the sole Proprietor of M/s Ethical Enterprises,
Shop No. 4-5 J-Block Market, Sarita Vihar, New Delhi.
ii. Secret information was received by the NCB, Delhi Zonal Unit
that a package containing psychotropic substances was to be
dispatched from DHL Express Pvt. Ltd. 71/3, Rama Road, Kirti
Nagar, New Delhi. A team got constituted, including constable
Shamsher Singh and Driver Virender Ramand, after collecting
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10 Kit weighing machine and field-testing kit, they left for the
destination. On reaching DHL Express, a carton covered with
white colored plastic and sealed with yellow tape of DHL was
shown by one Ashit Yadav. During inspection of the carton, a
copy of invoice, doctor's prescription, slip of medicine and the
Aadhar Card of the Petitioner herein, who was the sender of the
consignment, was found. The package was being sent to Bawai
Ling, Room 505, 4th Floor, Tosta Plaza, Laydaung Kam Road,
near Jeyx junction, Zawana, Thingangyun, TSP, 11071,
Myanmar. Before opening the package, attempt was made to
join an independent witness and one Indra Raj agreed to be the
independent witness to the search process.
iii. In the presence of independent witness, the carton was opened
and two separate bundles of medicines which were wrapped
with a rubber band were found in it. One bundle contained 20
strips of 10 tables each of Pexofenadene Hydrochloride Tablets
IP, Allegra and the second bundle contained 50 strips of 15
tablets each of Tramadol Hydrochloride Accetamino- PHL Tab
USP, Ultracet were found. It is stated that Tramadol, being a
scheduled substance is banned under the NDPS Act.
Accordingly, the package was seized vide Panchnama dated
23.08.2021 in the presence of the independent witness. On the
basis of seizure, the instant case was registered.
iv. Notice under Section 67 of the NDPS Act was served on the
Petitioner and his statement was recorded. He was arrested on
23.08.2021.
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v. On 25.8.2021, during investigation, shops of the petitioner,
bearing Shop No. 4 & 5 J- Block, Sarita Vihar, New Delhi were
searched. Two people - Rajeev Yadav and Mukesh Kumar were
requested to join the search proceedings as independent
witnesses, which they agreed to join and proceeded towards the
shops. It is stated that Mukesh Kumar backed out and did not
join as independent witness. It is stated that the shop was
closed and Ms. Sangeeta, wife of the petitioner was informed
about the search of the shop. She stated that the keys of the
shop were kept at her house. The team proceeded towards the
house of the Petitioner at No.77, H Block Sarita Vihar to bring
the keys to shop with the Petitioner and independent witness
Rajiv Yadav. On reaching the shop, it is stated that 3-4 other
bystanders were requested to join the search proceedings out of
whom one Md. Shazada Alam assented to become an
independent witness, and the shops got opened in the presence
of the Petitioner, his wife Sangeeta and the independent
witness. It is stated that Shop No.4's ground floor and basement
were used a storage space for medicines whereas Shop No. 5
was the office.
vi. It is stated Shop No. 4 was searched first and some NRx
medicines, namely one box containing 10 strips (15 tablets per
strip) of Ultracet Tramadol Hydrochloride and Acetaminophen
(Batch No.N1848, Mfg 06/2021, exp. 01/23 manufactured by
Johnson & Johnson)was recovered, for which the Petitioner
could not produce any bills in support thereof. On weighing,
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each strip was found to be weighing 6.5 grams, hence 10 strips
of the Ultracet Tramadol medicine weighed 65 grams and were
put in a box, wrapped in a pullinda and marked. It is stated
further, that two boxes, each containing 10 strips (15 tablets per
strip) i.e. 300 tablets of Clonazepam dispersible tablets,
clonotrail were found (Batch number 2jc 6H008, mfg 03/2021,
Exp. 02/2022, Manufactured by Torrent Pharmaceuticals Ltd.,
32 number middle camp). On weighing, each strip weighed
around 2.25 grams and total weight of 300 tablets was 45
grams. The tablets were seized and the seizure memos were
signed by the seizing officer and the two independent witnesses.
vii. It is stated that in the search of Shop No.5, documents stored in
the computers were checked and on finding some contents
therein suspicious they were taken in custody. Cash to the tune
of Rs. 2,36,845/- was recovered in the locker of Shop No.5. It is
stated that four computers were seized and the seizure memo
and panchnama were prepared in the presence of the Petitioner,
his wife and two independent witnesses.
3. Vide order dated 11.11.2021, the bail application of the Petitioner was
dismissed by the Ld. ASJ Saket by stating that the Petitioner was selling and
exporting medicines without a proper authorization under the NDPS Rules
1985, and the seized medicines formed a commercial quantity, which was an
offence under Section 8, Section 22(3) and 23 of the NDPS Act. The Trial
Court found that there is a recovery of 750 tablets of tramadol weighing 350
gm. which is a commercial quantity and the tablets were booked on the ID
of the petitioner herein. It also found that during search of the shop, 300
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tablets of tramadol weighing 130 gm and 375 tablets of clonazepam
weighing 50.5 gm were also recovered for which the petitioner was not able
to prove any valid bill or purchase bill. Further, it was held that there were
some transactions made by the Petitioner were not recorded in the bank
account statements or reflected in his Income Tax Returns submitted to the
respondent and there were properties purchased by him which could not be
substantiated by his income, and that investigation was still ongoing.
Therefore, application for bail of the Petitioner was rejected.
4. Mr. V.K. Shukla, Ld. Senior counsel, appearing for the Petitioner
submitted that the Petitioner runs a sole proprietorship business in the name
and style as M/s Ethical Enterprises and holds a valid drug license issued
under Form No. 20 & 20B and 21 & 21B under the Drugs and Cosmetics
Rules 1945 and is authorized to sell, stock, exhibit, offer for sale and
distribute various medicines specified under schedule H & H1 of Drugs and
Cosmetics Rules. He submitted that the Petitioner apart from having the
above licenses, has a valid Importer-Exporter Code in the name of M/s
Ethical Enterprises which was issued on 05.02.2015 and had been renewed
last on 26.06.2021, and has a GST number. He submitted that all the
medicines bought by the Petitioner have been accounted for in his books of
accounts.
5. He submitted that he is the proprietor of two other shops and has 34
employees working for him who have not been paid their salaries in the past
six months. He contended that the sales of the medicines made by him have
been strictly made after receiving a doctor's prescription. He further
submitted that the provisions of NDPS have been incorrectly pressed into
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service by the respondent as the Petitioner's business is governed by Drugs
and Cosmetics Act 1945.
6. The Ld. Senior counsel contended that Ultracet is not banned from
sale in India. He contended that the method used by the NCB in determining
the quantity of Tramadol recovered from the petitioner and declaring it as
commercial quantity was incorrect, he submitted that Ultracet is composed
of a minor percentage of 37.5 grams of Tramadol and has a major
percentage of 325 grams of Acetaminophen. He placed reliance on the
judgment of Hira Singh V. Union of India, (2020 SCCOnline SC 382), to
contend that the purpose of enacting NDPS was to remove the scourge of
drugs from society and contended that the judgment held that while
determining a small or commercial quantity in relation to a narcotic drug or
a psychotropic substance the quantity of a neutral substance should not be
taken into consideration and determination of quantity should be done by
weighing the actual quantity of the offending drug.
7. Learned Senior Counsel placed reliance on a prescription by one Dr.
Sandeep Guleria, Senior Consultant, Indraprastha Apollo Hopital, for a
patient from Myanmar - Ngun Tham Bawi Ling, who had undergone a
kidney surgery, and stated that these tablets were being sent to Myanmar on
the basis of the prescription of Dr. Sandeep Guleria, Senior Consultant,
Indraprastha Apollo Hopital. Mr. Shukla further contended that there are
bills to substantiate the recovery of Ulatracet and Clonazepam from the shop
of the petitioner.
8. He placed reliance on the decision rendered by this Court in Mohd.
Hasan v. Customs (Bail Application No. 1136/2021) wherein this Court
granted bail to a person who was carrying 110 bottles of Phensedyl to Saudi
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Arabia, and contended that bail should be granted to the Petitioner since his
case stands on a better footing, as he is a valid license holder and is
authorized to sell, distribute and store medicines under the Drugs &
Cosmetics Rules 1945.
9. Per Contra, Mr. Subhash Bansal, Sr. Standing Counsel, NCB
vehemently opposed the arguments of the Petitioner. He submitted that a
consignment containing 50 strips of Tramadol tablets was booked by the
Petitioner for exporting to Myanmar with a prescription of one Dr. Sanjiv
Saxena of Indraprastha Apollo Hospital and pursuant to which, investigation
was conducted at the shops of the Petitioner where 130gms of Tramadol and
50.5 grams of Clonazepam was recovered. He submitted that the Petitioner
did not produce a single bill or invoice to justify his possession of these
medicines and in absence of a valid bill the same would be viewed as a
contravention of the NDPS Act.
10. He submitted that during investigation, Indraprastha Apollo Hospital
was contacted to verify whether Dr. Sanjiv Saxena had issued the
prescription/s found with the consignment which were being exported to
Myanmar and it was discovered that no doctor by the name of Sanjiv Saxena
was empaneled at the Hospital. He submitted that Dr. Sanjiv Saxena was
served a notice to join investigation and he tendered a voluntary statement
stating that he was not working at Apollo Hospital for the last 11 years, the
prescriptions were not issued by him and the letter-head and signatures on it
were forged.
11. He submitted that the Petitioner in his statement under Section 67
NDPS Act has admitted of forging letter-heads in the name of Dr. Sanjiv
Saxena and selling medicines and drugs covered under H & H1 category of
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the Drugs and Cosmetic Rules 1945 and banned under the NDPS Act.
Further, he argued that on probing the matter it was found that there were
many transactions done by the Petitioner which have been unexplained and
some properties purchased by the petitioner were incompatible with his
income tax returns. To contradict the submission of the Petitioner on the
decision of the Apex Court in Hira Singh V. Union of India (supra), he
submitted that a complete reading of the said decision makes it clear that
while determining the quantity of a substance/drug/contraband, the weight
of the neutral substance or mixture will be included and the substance would
have to be seen as whole and not separately.
12. He submitted that the Petitioner's licenses under Form 20, Form 21,
Form 20B and Form 21B authorized him for sale, storage and distribution of
medicines but did not permit him to export the said medicines. He stated
further that for exporting the medicines, the Petitioner would have to apply
for an excise permit from the State Government under Rule 58 NDPS Rules
1985 and fill out a Form No. 5 for obtaining export permit and the Petitioner
did not have this specific authorization which permitted export and therefore
the Petitioner has violated Section 8(c) NDPS Act. He lastly submitted that
investigation into the case is still being done to find out other persons who
were involved with the cross-border trafficking of medicines and therefore
bail application of the petitioner should be rejected.
13. Heard Mr. V.K. Shukla, learned Senior Counsel appearing for the
Petitioner and Mr. Subhash Bansal, learned counsel appearing for the
Respondent. I have perused the material on record.
14. A perusal of the material on record shows that a package containing
750 tablets of Tramadol weighing 350 grams was recovered from a parcel
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given by the petitioner herein at DHL Express Pvt. Ltd. which was to be
dispatched to Myanmar. It has also been noted that the Petitioner owned two
shops by the name of Ethical Enterprises where he sold medicines and the
search done by the NCB at his premises recovered a total of 300 tablets of
Tramadol weighing 130 grams and 375 tablets of Clonazepam weighing
50.5 grams and no bills were shown to the respondent. The search carried
out by the NCB officilas was done before independent witnesses.
15. The argument of the Petitioner that Hira Singh v. Union of India
(supra) stipulates that the different compositions of an illicit substance need
to measured individually while evaluating whether the quantity is
commercial or intermediate or small is unsustainable. A holistic reading of
the judgment shows that while coming to conclusion about the quantity of
an illicit substance, the substance would have to be weighed in toto
including the weight of the neutral or mixed substance. In other words, a
piecemeal calculation of the quantity of a substance would not be tenable
and any interpretation otherwise would lead to an abuse of the legislative
intention of the NDPS Act.
16. The Respondent has contended that the Petitioner gave a disclosure
statement wherein he has allegedly admitted to the stance being canvassed
by the NCB, pertaining to forging prescriptions and unlawfully
transporting/exporting medicines into neighbouring countries without
requisite authorisation whereas the Petitioners have claimed that the
statement of the Petitioner was recorded under duress and has been
retracted, and has refuted the assertion of the respondent by submitting a
number of bills and prescriptions before this Court. However, it is not the
remit of this Court to adjudicate upon the guilt or innocence of the Petitioner
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and are matters to be examined closely and determined at the time of Trial.
The task of this Court at this stage is only to consider whether it would be
permissible to let out the Petitioner on bail or not.
17. The principles for granting bail under Section 37 NDPS Act have
been settled and reiterated, time and again, by the Supreme Court. In State
of Kerala V. Rajesh, (2020) 12 SCC 122, while emphasising that the dual
conditions under Section 37 NDPS should be satisfied irrefutably, it held
that-
"19. The scheme of Section 37 reveals that the
exercise of power to grant bail is not only subject to
the limitations contained under Section 439 CrPC, but
is also subject to the limitation placed by Section 37
which commences with non obstante clause. The
operative part of the said section is in the negative
form prescribing the enlargement of bail to any person
accused of commission of an offence under the Act,
unless twin conditions are satisfied. The first condition
is that the prosecution must be given an opportunity to
oppose the application; and the second, is that the
court must be satisfied that there are reasonable
grounds for believing that he is not guilty of such
offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence.
The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence. In the
case on hand, the High Court seems to have completely
overlooked the underlying object of Section 37 that in
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addition to the limitations provided under the CrPC, or
any other law for the time being in force, regulating
the grant of bail, its liberal approach in the matter of
bail under the NDPS Act is indeed uncalled for. "
18. The Supreme Court in Collector of Customs V. Ahmadaleiva Nodira,
(2004) 3 SCC 549, observed that the twin conditions for bail under NDPS
Act are cumulative and not alternative and held as under:
"7. The limitations on granting of bail come in only
when the question of granting bail arises on merits.
Apart from the grant of opportunity to the Public
Prosecutor, the other twin conditions which really have
relevance so far as the present accused-respondent is
concerned, are: the satisfaction of the court that there
are reasonable grounds for believing that the accused
is not guilty of the alleged offence and that he is not
likely to commit any offence while on bail. The
conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being
not guilty has to be based on reasonable grounds. The
expression "reasonable grounds" means something
more than prima facie grounds. It contemplates
substantial probable causes for believing that the
accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision
requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence. In the
case at hand the High Court seems to have completely
overlooked the underlying object of Section 37. It did
not take note of the confessional statement recorded
under Section 67 of the Act."
19. The argument of the Petitioner that the Petitioner has a valid
Importer- Exporter Code and a GST registration number and further did not
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require any other licenses or permissions for sending a package of medicines
to Myanmar does not impress this Court. I find force in the argument of the
counsel for the respondent that the Petitioner would need a valid
authorisation under Rule 58 of NDPS Rules 1985 and the license which was
being used for selling medicines from his shop would not suffice as it
authorises the sale and distribution of medicines domestically and locally.
20. As per Notification S.O. 1760 (E.) dated 26.04.2018 issued by the
Revenue Department amended S.O. 1055 (E) dated 19.10.2001 by inserting
Tramadol as Entry 110Y to the Schedule of Psychotropic substances under
the NDPS Act and specifies its commercial quantity to be 250gms. This
makes it amply clear that the Petitioner ought to have had a valid
authorization as per Rule 58 before exporting Tramadol.
21. A perusal of the Status Report shows that 750 tablets of Tramadol
weighing 350 grams were recovered from a parcel given by the petitioner
herein at DHL Express Pvt. Ltd. which was to be dispatched to Myanmar
and 300 tablets of Tramadol weighing 130 grams and 375 tablets of
Clonazepam weighing 50.5 grams were recovered from the shop of the
Petitioner. Furthermore, the seizures at both, DHL office and Petitioner's
shop were done in the presence of independent witnesses.
22. The prescription of Dr. Sandeep Guleria, Senior Consultant,
Indraprastha Apollo Hospital, has been placed on record for the first time by
the Petitioner before this Court. It was not placed on record before the Trial
Court. A reading of the prescription does not show that Tramadol which was
seized at the office of DHL Pvt. Ltd. had been prescribed to Mr. Ngun Tham
Bawi Ling, who is a resident of Myanmar. Certain other prescriptions have
been give for local consumption wherein Ultracet has been prescribed but
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this does not satisfy as to from where the petitioner had purchased those
tables and whether license has been given to him to retain those tablets.
23. Even though there are prescriptions, it cannot be substantiate the
presence of tablets at the shop of the petitioner. Further, in any event, the
prescription amount does not match with the total number of tablets that
have been recovered from the shop of the petitioner. This Court is not
making any observations on this aspect lest it will prejudice the case of the
petitioner. However, these facts are shows only to come to the conclusion
that there are reasonable grounds to believe that the petitioner has committed
an offence punishable under Sections 8, 22(c) and 23 NDPS Act and thereby
the rigour of Section 37 of the NDPS Act will apply in the present case.
24. Therefore, for the above said reasons, this Court is not inclined to
grant bail to the Petitioner at this juncture. The Petition is dismissed along
with pending applications, if any.
25. Be it noted that the observations made in this Order are only for the
purpose of bail and are not on the merits of the case.
SUBRAMONIUM PRASAD, J
FEBRUARY 16, 2022
hsk
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