NIRANJAN JAYANTILAL SHAH Vs. DIRECTORATE OF REVENUE INTELLIGENCE

JUDGEMENT

(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.) 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. As per the prosecution case on 14th December, 2011 official of