Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: March 24, 2015 + CRL.M.C. 5222/2013 & Crl.M.A.No.4343/2015 DRI Through: ..... Petitioner Mr. Amish Aggarwala & Mr. Satish Aggarwala, Advocates versus RAJESH SHARMA Through: ..... Respondent Mr. Ramesh Gupta, Senior Advocate with Mr. Janendra Kumar Chumbak, Advocate with respondent in person CORAM: HON'BLE MR. JUSTICE SUNIL GAUR JUDGMENT
(ORAL) % Impugned order of 9th September, 2013, grants bail to respondentaccused and denies bail to his co-accused- Somnath Pal, as contraband substance weighing 136.840 kg. of 3,4-Methylenedioxyphenyl1-2Propanone and 54.740 kg. of Ephedrine/Pseudoephedrine was recovered from the godown at 35/5, G.T. Karnal Road, Industrial Area, Phase-B, Near Telephone Exchange, Derawal, Model Town Gurdwara, Delhi and the said godown belonged to his co-accused –Somnath Pal. In pursuance to the separate raids conducted by different teams of DRI officers at various places, including residence of respondent-accused Crl.M.C.No.5222/2013 Page 1 and the aforesaid godown, apart from the afore-referred contraband substance, cash amount of `8.40 lacs, some documents and one rubber stamp was also recovered from the residential premises of co-accusedSomnath Pal, whereas from the residence premises of respondent-accused, cash amount of `3.5 lacs, some documents including blank retail invoices were seized and white coloured HDPE bags, black polythene packets, one blue plastic drum and one corrugated carton and some blue colour plastic bottles having the markings of ‘Manhar’ Pure Coconut Oil, containing some white coloured powder and off white colour crystalline powdery substance were also recovered. Upon testing, the afore-referred substances namely Ephedrine/ Pseudoephedrine were found to be positive. However, application of petitioner for sending samples of 3,4-Methylenedioxyphenyl1-2- Propanone to FSL, Hyderabad was still pending. The bail was granted to the respondent-accused. However, liberty was granted to petitioner- DRI to seek cancellation of bail if anything seriously incriminating against the accused comes up during the course of investigation. It is noticed in the impugned order that respondent-accused’s bail application was seriously opposed by petitioner-DRI in view of the heavy recoveries effected. The investigation conducted revealed that respondent-accused and his two co-accused –Somnath Pal and Surender Verma were part of a well organized drug syndicate and incriminating material had been recovered from them. Respondent-accused had also made statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 disclosing conspiracy angle. However, bail was granted to respondent-accused vide impugned order because no recovery Crl.M.C.No.5222/2013 Page 2 was effected from him and in view of the nature of substances recovered, bar of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 being not attracted. Impugned order also notes that the retraction of statement under Section 67 of the aforesaid Act by respondent-accused was not prompt but had left this aspect open to be considered at trial. By way of application Crl. M.A.No.4343/2015, petitioner-DRI has placed on record FSL report on 21st November, 2014 received from Forensic Sciences Laboratory, Hyderabad to show that in eleven exhibits, prohibited substance ‘Methamphetamine’ was detected, which is psychotropic substance and is prohibited in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Rules. Thus, it is submitted on behalf of petitioner-DRI that in view of afore-referred FSL report from Hyderabad, bar of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is now attracted and in view of liberty granted in the impugned order to seek cancellation of the bail granted to respondent-accused, it is a fit case to cancel the bail granted to respondent-accused. To oppose this petition, learned senior counsel for respondentaccused had placed reliance upon an Order of 19th December, 2013 of this Court in Crl.M.C.No.1153/2012 DRI Vs. Virender Singh & ors. whereby DRI’s petition for cancellation of bail has been dismissed. It is submitted on behalf of respondent-accused that respondent-accused was enlarged on bail in September, 2013, as no recovery was effected from him and now after a period of more than one year, bail granted to respondent-accused does not deserve to be cancelled, as the FSL report received from Hyderabad is assailable. Crl.M.C.No.5222/2013 Page 3 Upon hearing and on perusal of the impugned order, material on record and the decision cited, I find that when bail was granted to respondent-accused, the recovered substances did not fall in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 and bar of Section 37 of the aforesaid Act was not attracted. Trial court was conscious of the fact that petitioner-DRI’s application for testing by FSL, Hyderabad is pending and so, liberty was granted to petitioner-DRI to seek cancellation of bail. Now, the report from FSL, Hyderabad has been received which brings this case within the Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Rules. Now, Section 37 of the aforesaid Act is attracted. Reliance placed upon decision in DRI Vs. Virender Singh & Ors. (Supra) is of no avail, as question of applicability of Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 was not the subject matter of the aforesaid decision. A Coordinate Bench of this Court vide a detailed order in Directorate of Revenue Intelligence Vs. Anil Kumar 2014 SCC Online Del 4915 has cancelled the bail granted to accused by pertinently observing as under:
“16. It is therefore, established beyond any cavil that import and export of any of the contraband substances annexed as schedule to the NDPS act falls within the ambit of illegal substances triable under NDPS act. This court is in agreement to the submission of the petitioner that the Ld. Special Judge, NDPS, New Delhi while granting bail has relied upon case law, all of which are related to Schedule H drugs (Prescription drugs), under the Drugs and Cosmetic Rules, 1945. However, since it has been established above that Ketamine Hydrochloride is a valid part of NDPS act, therefore this court while setting aside the order of the learned Special judge is of Crl.M.C.No.5222/2013 Page 4 the opinion that the bail of the respondents be also set aside. It is further of the opinion that as far as allegations made by the learned counsel for the respondents about the procedures followed by the DRI are concerned, they are based upon exaggerated claims and it finds no justifiable reasons in such claims. This court also holds one Mr. Anil Kumar as the coaccused in the commission of this well conspired drug racket and thereby any or all legal action against him is valid. “ In the afore-noted decision, it has been clearly said that Methamphetamine in itself is a prohibited substance under the Narcotic Drugs and Psychotropic Substances Act, 1985. In the facts and circumstances of this case, as noticed herein above, and in view of FSL report now received and in light of decision of a Coordinate Bench of this Court in Directorate of Revenue Intelligence Vs. Anil Kumar (Supra), impugned order is rendered unsustainable and is hereby quashed. Respondent-accused is directed to surrender forthwith before the trial court and to seek bail afresh. This petition and application are accordingly disposed of, while refraining to comment upon the merits of the case, lest it may prejudice petitioner at the time when he seeks regular bail before the trial court. (SUNIL GAUR) JUDGE MARCH24 2015 r Crl.M.C.No.5222/2013 Page 5