SAIYED VAZEERULLAH HAJIMULLA PASHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicants by these applications under Sec.439 of the Code of Criminal Procedure prayed to release them on bail as they are in judicial custody in connection with the complaint lodged by the Intelligence Officer, Narcotic Bureau, Ahmedabad, respondent No.2 herein, registered as NCB/AZU/CR-04/2010 for having committed offence under Sec.9A read with Sections 25A read with Sec.29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act" for short) for producing, manufacturing, possessing and storing 238.450 kg. of Ephedrine in violation of RCS Order, 1993 by entering into a criminal conspiracy. The applicants were arrested on 27-10-2010 and since then, they are in judicial custody. Applications preferred by the applicants before the court below after filing of the charge sheet were rejected by the learned Principal District and Sessions Judge, Bharuch, vide order dated 28-2-2011 passed in Cri.Misc.Appln.No.72 of 2011.

(2.) Heard learned counsel, Mr.P.R.Abichandani with Mr.Vaibhav A.Vyas for the applicant in Cri.Misc.Appln.No.13186 of 2011, Mr.Anil Lalla with Mr.Ramnandan Singh for the applicant in Cri.Misc.Appln.No.14182 of 2011, learned Addl. Public Prosecutor, Ms.Krina Calla for the respondent No.1-State and learned Assistant Solicitor General for the respondent No.2-complainant.

(3.) It is submitted by learned counsel for the applicants that these matters involve substantial question of law as to whether in view of Section 77 of the Act, every rule, order or notification issued by the Central Government under Section 9A of NDPS Act is to be laid before each houses of Parliament and it is only after both the houses agree, pass and approve the notification, shall it be given effect. It is further submitted that Ephedrine used in the manufacture of certain 'amphetamines' and 'methamphetamine' is declared as a 'Control Substance' vide notification No. S.O. 1296(E) dated 28.12.1999. It is further submitted that even if it is assumed that Ephedrine is a controlled substance, the power to control and regulate possession, sale, manufacture of the controlled substance is provided under Section 9A of the NDPS Act and Sec.9A(1) provides that Government may, by order, regulate or prohibit the production, manufacture, supply and distribution of the controlled substance, however, in the present case, no notification under Sec.9A prohibiting or regulating the production, manufacture, possession, supply or distribution of Ephedrine is issued and hence, the alleged possession of Ephedrine could not be said to be in violation of any order issued by the Central Government. According to them, Ephedrine is not a Narcotic Drug or Psychotropic substance as defined under Section 2 (viia) and 2 (xxiii) of NDPS Act and punishment prescribed for using the above substance in the manufacture of medicine and possession thereof under Section 25A is imprisonment for a term which may extend to 10 years with fine which may extend to Rs.1,00,000/- and such offence is out of rigor of Section 37 of NDPS Act. It is also submitted that as far as statement recorded of the accused or a co-accused under Section 67 of NDPS Act is concerned, it may have limited role to play at the stage of trial since said statement was also retracted later on. Therefore, when another similarly situated co-accused, who have played almost identical role, was enlarged on bail by this Court vide order dated 18.1.2011 passed in Cri.Misc.Appln. No.14910 of 2010, it is urged that the present applicants, who are neither directors or partners, may also be released on bail on parity. It is also further submitted that the applicants are employees of the accused No.1-Faiyaz Ahmed Rasool Shaikh working on a monthly salary and were not aware that the accused No.1 has been engaged in illegal business of NDPS and merely they were present at the factory premises, they have been falsely involved in this case. It is therefore urged that they may be enlarged on bail. In this connection, they relied on the following decisions: