ATUL DILIP MHATRE Vs. UNION OF INDIA

JUDGEMENT

(1.) The present bail application has been filed under Section 439 Cr. P. C. on behalf of the petitioner, who is in custody in relation to F. I. R. No. DRI/DZU/JRU/19/INT-4/2016 DATED 26. 4. 2017, for the offences under Sections 9(A), 22(C), 23(C), 25, 25(A), 27(A), 29 read with 2, 8, 8(A) of NDPS Act and Rules 53(A), 64(A), 65(A), 66, 67 of NDPS Rules.

(2.) Facts in brief are that on 28. 10. 2016, the Officers of DRI, on receiving a prior information, conducted a raid at a godown No. G1, 347 located in the Bhamashah Industrial Area, Kalwadwas, Udaipur, allegedly owned, controlled and operated by Subhash Dudani, Ravi Dudani and Nirmal Dudani. On conducting an extensive search of the premises, a huge bulk of Methaqualone tablets weighing about 23320 kgs. was recovered. The contraband psychotropic tablets were seized. Thereafter, search commenced for the three godown owners named above. Their statements were recorded under Section 67 of the N. D. P. S. Act and it came to light from these statements to be specific, that of Subhash Dudani, that the petitioner had, at a particular point of time provided the technical know how and had aided, Shri Subhash Dudani in commissioning an Acetic Anhydride (an essential chemical required during manufacturing process of Methaqualone) manufacturing plant but the said endeavour did not fructify. The petitioner too was interrogated under Section 67 of the N. D. P. S. Act and was arrested on 3. 11. 2016. Since then, he is in custody. The D. R. I. conducted thorough investigation and finally, a complaint came to be filed against the principal accused Subhash Dudani and his collaborators for the offences under Sections 8/22/25 and 29 of the N. D. P. S. Act. As against the present petitioner, charge-sheet was filed for the offences under Sections 9(A) read with 25(A) and 29 of the N. D. P. S. Act with a conclusion that he provided technical support for commissioning Acetic Anhydride plant to Subhash Dudani knowing very well that the chemical could be illegally used for production of Methaqualone. The petitioner moved a bail application under Section 439 Cr. P. C. in the court of the learned Special Judge, N. D. P. S. Act Cases, Udaipur which was rejected on 1. 7. 2017 whereupon, the instant application for bail has been filed in this Court.

(3.) Shri Vikas Balia, learned counsel representing the petitioner, placed reliance on the Hon'ble Supreme Court decision in the case of Nikesh Tarachand Shah Vs. Union of India & Anr. ,2017 SCCOnline(SC) 1355 and urged that the restrictions contained in Section 37 of the N. D. P. S. Act do not operate against the present petitioner in his endeavour to seek bail because no incriminating recovery whatsoever was effected at his instance or from his possession. He urged that the petitioner, a chemical engineer by profession, rightfully, lawfully and without any mensrea provided the technical assistance and attempted commissioning of Acetic Anhydride plant in the premises of Subhash Dudani way-back in the year 2009. However, the petitioner failed in his endeavour. Thereafter, Subhash Dudani procured a manufacturing plant of Acetic Anhydride commissioned through M/s. Narain Lala of Gujarat. He urged that, neither from the statements of Subhash Dudani and his collaborators or that of the petitioner recorded under Section 67 of the N. D. P. S. Act does it emerge that the petitioner was in any case aware that the Acetic Anhydride manufacturing plant for the commissioning whereof he was engaged, would be used for illegal purposes. He urged that the petitioner came in touch with Subhash Dudani in the month of June 2007 and did the job of epoxy quoting etc. in his industrial unit named Sun Opticals Limited for a fee of Rs. 7 lacs. In the year 2008, Subhash Dudani took the petitioner's advise for setting up an alcohol/alcohol derivative plant which did not fructify. Later on, the petitioner's professional expertise was sought for setting up of an Acetic Anhydride plant. The petitioner apprised Shri Subhash Dudani that the setting up of such plant required extensive and cumbersome legal process of getting permissions etc. from the government. Subhash Dudani apprised the petitioner that the plant would be exported and set up outside the country. In April 2009, Subhash Dudani informed that the requisite permissions had been obtained and formally engaged the petitioner to install and commission the plant. The petitioner visited the unit of Subhash Dudani at Gudli, Udaipur and made an attempt for commissioning the plant. He spent total of 25 days in this endeavour but could not succeed. In the year 2011, the petitioner was consulted by Subhash Dudani for setting up an ephedrine plant. The petitioner advised Subhash Dudani to contact one Dr. Ravi for this purpose and the services of Dr. Ravi were obtained and he was paid a sum of Rs. 33 lacs by way of consultancy fees through the petitioner. As per Shr Balia, the fact regarding the petitioner having transferred this amount paid to him by Subhash Dudani to Dr. Ravi has been corroborated by Investigating Officer from the relevant bank statements. For two years from 2011 onwards, the petitioner had no further dealings with Subhash Dudani. In the year 2013, the petitioner was approached by Shri Dudani to set up a new partnership firm at Gujarat. However, the firm was created only on papers but could not be registered and no business was done in its name. In May 2016, the petitioner took a personal loan of Rs. 10 lacs from Subhash Dudani, which was transferred to him through the firm named M/s. Sherry Drinks owned by Shri Dudani. The petitioner repaid the said amount by a bank transfer in June 2016 itself. As per Shri Balia, there is not even a semblence of evidence on record so as to link the petitioner with either the Acetic Anhydride or Methaqualone manufactured by Shri Subhash Dudani or recovered from his premises. Admittedly, the petitioner who was lawfully engaged for this purpose, could not succeed in commissioning the Acetic Anhydride plant in the year 2009. He provided his services to Shri Dudani only for a limited and specific purpose of providing the technical know how but the attempt proved abortive. He further submitted that a technical expert is not required to have any licence for commissioning a manufacturing plant of any controlled substance. The onus would be on the manufacturer to obtain the necessary permissions etc. before starting production. He further urged that the highest allegations of the D. R. I. as against the petitioner are only limited to an abortive attempt of manufacturing Acetic Anhydride, apparently the restrictions of Section 37 of the N. D. P. S. Act would not apply to the petitioner. Sh. Balia further urged that Acetic Anhydride has wide spread applications in manufacturing processes of various kinds and as such, the petitioner's bonafides cannot be doubted and he cannot be imputed mensrea for the offences. He relied upon the following observations in Nikesh Tarachand Shah's judgment: