UNION OF INDIA Vs. RAVINDRAN KARAPAYA ALIAS RAVI

JUDGEMENT

(1.) Both these applications are filed by the Narcotic Control Bureau through the Union of India for cancellation of bail granted to the accused persons by the learned Judge by two different orders.

(2.) Prosecution case in brief is that on 25th November, 2008, Intelligence Officer S. K. Sinha received intelligence that two Malaysian Nationals viz. Ravindran Karapaya @ Ravi, accused no. 1 and Gunasekaran Pillay @ Guna, accused no.2 residing at flat no.601, building no.3. Mercury Co-operative Society, Evershine Millennium Paradise. Sector-2C, Thakur Village, Kandiwali. had stored substantial quantity of Methamphetamine. a psychotropic substance and Ephedrine which is a controlled drug in the said premises. It was also learnt that the said contrabands were procured by them from the factory of M/s. Sakha Organics Pvt. Ltd. situated at village Mokshi, Taluka Savali, District Vadodara in Gujarat State. On the basis of that information, officers of NCB along with panchas raided the said premises being flat no.601. At that time, none of the accused were present. In their absence, search of the flat was taken and 7 kg. Of Methamphetamine and 5 kg. Of Ephedrine in the form of white powder were recovered. Some glass/plastic bottles were also recovered from the containers containing the said chemicals. All these contraband articles were seized and sealed under panchanama. It was revealed that on 21st November, 2008 i.e. about four days before the above seizure, accused nos.l and 2 were arrested by Ahmadabad Zonal Unit of NCB in connection with seizure of Methamphetamine at Vadodara. At the same time, Xie Jing Feng @ Richard, who is accused no.3, was also arrested at Vadodara by NCB in connection with the seizure of Methamphetamine. All the three accused were also taken into custody in connection with the seizure of Methamphetamine and Ephedrine from the flat no.601, Kandiwali (East), Mumbai. On 25th November, 2008 itself, their statements were recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"). Their statements revealed that accused no.3 used to deal with export of the contraband drugs and accused nos.l and 2 used to assist him for which they were getting monthly salary. It was also revealed that accused no. 1 Ravindran Karapaya and accused no.3 Xie Jing Feng had brought 7 kg. Of Methamphetamine and 5 kg. of Ephedrine from a factory at Vadodara to Bombay and stored the said material in the flat no.601. Methamphetamine is a psychotropic substance while Ephedrine is a controlled substance within the meaning of NDPS Act and accused persons committed offences punishable under Sections 22 and 25-A of the NDPS Act. In the said case being Crime No. 11/2008, Intelligence Officer filed a complaint before the Special Court which came to be registered as NDPS Special Case No.71/ 2009. Accused no.3 was granted bail on 26th November, 2009 and accused nos. 1 and 2 were granted bail on 5th March, 2010by the learned Special Judge, mainly relying upon the judgment and order passed in Criminal Application No.3295/2005 (M. V. Henry Vs. Raviprakash Goyal) and Pradeep Dhond Vs. NCB, Mumbai, decided by the learned Single Judge of this Court. The learned Additional Sessions Judge held that prima facie the provisions of NDPS Act are not applicable and therefore, the embargo contained in Section 37 of the NDPS Act for grant of bail will also not be applicable.

(3.) Prosecution has challenged the grant of bail by the Special Judge on the ground that the Methamphetamine is a psychotropic substance as defined in Section 2(xxiii) as it is shown at Serial No. 19 in the Schedule under Clause (xxiii) of section 2 of the NDPS Act. It is contended that Section 8(c) provides that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of thi s Act or the rules or orders made thereunder. Section 22 provides punishment for contravention in relation to psychotropic substances. It is also pointed out that as per the table notified by the Government of India as per sub-clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, small quantity of Methamphetamine, also known as Metamfetamine, is 2 grams while commercial quantify is 50 grams. In this case, 7 kg. Of Methamphetamine in powder form was recovered. It is contended that in view of the large quantity of psychotropic substance under Section 22(c), the offence is punishable with imprisonment for not less than 10 years and which may also extend to 20 years with fine. It is also contended that Ephedrine is the controlled substance as per the provisions of Section 9(a) of the Act and contravention of provisions of Section 9(a) in respect of controlled substance is also punishable under Section 25-A with rigorous imprisonment for a term which may extend to 10 years and also with fine. It is contended on behalf of the prosecution that the learned trial court committed error in holding that the provisions of NDPS Act are not applicable and that no offence under the said Act is made out.