@JUDGMENTTAG-ORDER
I.S. Shrivastava, J.@mdashThis order is for the disposal of 5th bail application of the applicant Ajay Jain. The applicant is involved in Crime No. 01/2008 of Police Station-CBN , Indore registered under Sections 8/22(c), 25, 27A, 29, 30, 9A, 25A and 80 of the NDPS Act read with Rule 66 of the Drugs and Cosmetics Act, 1940.
2. First bail application of the applicant was dismissed as withdrawn on 19/05/2010 in M. Cr.C. No. 3261/2010; second bail application was also dismissed as withdrawn on 06/08/2010 in M. Cr.C. No. 4358/2010; third bail application was dismissed on merit on 01/10/2010 in M. Cr.C No. 6034/2010 and the forth bail application was dismissed as not pressed on 23/02/2011 in M. Cr.C No. 710/2011.
3. According to the prosecution story, on 21.6.08 at 10.00 hours an information was received from the informer that one Ajay Jain S/o S.K. Jain R/o Indrapuri, Bhanwarkua Road, Indore is indulged in illicit trafficking of Psychotropic Substances from quite some time. It was also informed that Ajay Jain may go to deliver the Alprazolam powder to a smuggler between 12.00 hours to 15.00 hours in noon, carrying it in his car Ford Fiesta bearing registration No. MP-09/MJ-4444, from Mandir Wali Gali near Saraswati School, Indrapuri via Bhanwarkua. If the car and Mr. Ajay Jain is intercepted and checked, the recovery of illicit Psychotropic Substance may be possible. After due paper formalities a preventive party was sent for surveillance. At about 13.30 hours the said car was seen by the preventive party; on identifying the car and on having keen observation on accused, they were signaled to stop. On search of the vehicle, a paper cartoon kept on the left side of the driver seat was found. On enquiry about recovered substance Ajay Jain has admitted that it is Alprazolam powder. In search of the dash board of the car a polythene bag containing white powder was also found, which was Ephedrine. The intercepted person Ajay Jain admitted that he was having no document or licence to possess or transport the psychotropic substance inter alia Alprazolam powder and Ephedrine. The recovered substance was weighed, the Alprazolam powder was net 5.200 Kgs and Ephedrine was 2 gms. The said Alprazolam powder purported to be found for the purpose of illicit transportation and possession to the prohibition contained u/s 8 of the NDPS Act and the NDPS Rules. The voluntary statement of Ajay Jain was recorded, wherein it is said by him, that he with the help of Sanjay Chauhan who is running a shop in the name of Skyage Entertainment, Indrapuri and Amit Sharma running a shop in the name of National Pharma, Sapna-Sangeeta Road, Indore, indulged in the purchase, sell, transport and possession of the contraband Psychotropic Substances. It was further disclosed by him that Sanjay Chauhan had kept a concealed cartoon containing 5.200 Kgs of Alprazolam in his shop Skyage Entertainment, which may be seized if immediate action could be taken by the preventive party. In his statement he has further disclosed that the Kingpin of the conspiracy is the co-accused Sudarshan Sengar @ Guddu and Sunil Sengar @ Pappu.
4. In furtherance to the said statement search was conducted and 5.200 Kgs Alprazolam was seized from the co-accused Sanjay Chauhan from his shop Skyage Entertainment. A seizure of 50 Kgs of Alprazolam has further been made from co-accused Amit Sharma from his shop National Pharma, situated at Sapna-Sangeeta Road, Indore. In the investigation it was revealed that a consignment of Alprazolam powder of 50 Kgs has been dispatched on 18.6.2008 by M/s Chokoson Chemicals (P) Limited, Trissur (Kerla) through M/s Speedage Cargo Service, Indore in the name of M/s National Pharma. On receiving the said information and on conducting search in the office of Speedage Cargo, it was found that a consignment of Alprazolam in the name of M/s National Pharma is lying undelivered; however it was also seized from the office of Speedage Cargo. It has further come on record that a demand draft was prepared in the name of M/s Chakoson Chemicals Limited to purchase Alprazolam by using PAN card No. AFDPC 8452-C, of accused Sunil Sengar. The statements of the bank employees Mr. Ashish, Mr. Umesh Pandey and Mr. B.L. Kushwah were recorded, whereby it was said that by using the account of Sunil Sengar and Sudarshan Sengar the requisite amount was being paid for purchasing the contraband Alprazolam. The statement of one Teja Hardas, travel agent Indore has also been recorded which disclosed the fact that the journey tickets of accused Ajay Jain was prepared through him, under insistence of accused Sunil Sengar and Sudarshan Sengar. It has also come on record that the payment of those travelling tickets were made by them and some amount was due for payment. As per the confessional statement of Sunil Sengar and Sudarshan Sengar it has revealed that they are master mind and earned a lot of money in Indore and New Delhi , indulging themselves in such smuggling activities. It has further been revealed that in Indore a house, a girls hostel and another house at Bhanwarkua Road, the Huts Restaurant, the Daily Need Refreshment Centre are there in the name of Sudarshan Sengar/Sunil Sengar. In view of the said allegations CBN has made them accused along with other co accused persons.
5. On perusal of the case diary, it is revealed that total 112.4 kg Alprazolam powder has been recovered from the possession of the accused Ajay Jain, Sanjay Chouhan and Amit Sharma. Accused Amit Sharma was having a drug licence under the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics Rules 1945 in the name of National Pharma. He used to purchase Alprazolam from Chakosons Chemicals Trissur situated in the State of Kerla. It is also found that 617 kg Alprazolam was purchased by the accused persons, but only 112.400 kg Alprazolam has been seized. As per the confessional statement of the accused Sudarshan Sengar, Sunil Sengar, Sanjay Chouhan, Ajay Jain and Amit Sharma recorded u/s 67 of the NDPS Act, it has come on record that the Kingpin of the conspiracy and the owner of the entire business are accused Sudarshan Sengar and Sunil Sengar. They are involved with these activities in collaboration of accused Ajay Jain while accused Amit Sharma is their pap and the Drug License has been taken in his name with a view to promote smuggling activities. Accused Sanjay Chouhan is the tenant of Sudarshan Sengar and was running the business in the tenanted shop in the name of Sky Edges Entertainment situated at 407, Indrapuri, Bhawanrkua Road, Indore where the business of selling DVD''s, CD''s and other electronics equipments were carried out.
6. It has been argued by the applicant that this is fifth bail application of the applicant in the changed circumstances. He has been falsely implicated in this case. There is no case against him. Alprazolam is a drug specified under the Drug and Cosmetics Act, 1940 and confirmed to standards indicated in the Indian Pharamacopoeia. Since the substance in question confirmed to the specifications mentioned in the Indian Pharmacopoeia and is Schedule-H drug under the Drugs & Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945 and hence the same could not be regarded as Psychotropic substance under the NDPS Act. Section 8(c) of the NDPS Act prohibits the manufacture, possession, sale, use etc of any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of NDPS Act or NDPS Rules or Orders made there under. Therefore, there is a general prohibition against the manufacture, possession, sale, use etc of a psychotropic substance, if the same is medicine and is to be used to medical purpose, then the manner and extent of its manufacture, possession, sale, use etc shall be as provided in the NDPS Act or NDPS Rules or Orders made there under. Since Alprazolam is Schedule-H entered in the Drugs and Cosmetic acts and Rules, hence its manufacture, sale, etc is regulated by the Drug and Cosmetics Act and Drugs and Cosmetics Rules.
7. It is further argued that Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate inter-alia, the manufacture, possession, sale, transportation of psychotropic substances and for this purpose, the NDPS Rules have been formulated by the Central Government. In this respect, Rules 64 prescribes the general prohibition that no person shall manufacture, possess, transport, import inter-state, export inter-state, sale, purchase, consume or use any of the psychotropic substances specified in Schedule-I. The Schedule - I is different to Schedules to NDPS Act which contains two parts, one Narcotic Drugs and second Psychotropic Substance. There is a list of 33 specific psychotropic substances with entry No. 34 being Salt and Preparation of above. Alprazolam and Alprazolam Hydrochloride is not mentioned in Schedule - I of the NDPS Rules and therefore, the general prohibition of Rules - 64 of NDPS Rules does not apply to it. Consequently, Rules -65 to 67 which has reference to psychotropic substances specified in the said Schedule-I would also not be applicable in respect of Alprazolam. There are several psychotropic substances which find place in the Schedule of NDPS Act and the Schedule-I of the NDPS Rules.
Rule - 65 Sub-clause -1 provides that the manufacture of psychotropic substance other than those specified in Schedule-I shall be in accordance with the conditions of license granted under the Drugs and Cosmetics Act and Drugs and Cosmetics Rules. Therefore, psychotropic substances mentioned in Schedule to the NDPS Act shall be governed by the Drugs and Cosmetics Act and Rules and not by the NDPS Act or NDPS Rules.
Rule - 65 relates to possession etc of psychotropic substances, Sub-rule (1) thereof provides that no person shall possess any psychotropic substance for any of the purpose covered by the Drugs and Cosmetics Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under the NDPS Rules. The expression ''any psychotropic substance'' obviously has reference to those listed in Schedule-I of NDPS Rules. Rule-66 also does not apply as it has reference to only those psychotropic substances which are included in Schedule-I of the NDPS Rules.
Rule-67 of NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule-64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule - I of the NDPS Act. The Rules would have no applicability in respect of those psychotropic substances which are not to be found in Schedule-I to the NDPS Rules. Clearly than, in as much as Alprazolam is not included in Schedule-I of the NDPS Rules. Its manufacture, possession, sale, transport, use etc would neither be prohibited nor regulated by the NDPS Rules and consequently, by the NDPS Act. It being Schedule-H drug, would fall within the region of Drugs and Cosmetics Act and Rules.
8. The alleged recovery of Alprazolam is neither a narcotic drug not psychotropic substance as claimed by the department due to the aforementioned reasons. The said substance is covered under Schedule-H of Drug and Cosmetic Act. No doubt, the said substance also finds mention in the Narcotic Drugs and Psychotropic Substance Act, 1985, but as the said substance finds mention on both the Acts i.e. NDPS Act and Drugs and Cosmetics Act and as per various judgments of Hon''ble High Court and Hon''ble Supreme Court, the said substance does not fall under the NDPS Act, 1985. That being the case its manufacture, possession or sale is not prohibited. As such there is no contravention of provisions of NDPS Rules. Consequently, Section 8 of the NDPS Act is not made out and obviously punishment u/s 22 of the NDPS Act is also not attracted. The act of the applicant for the recovery of Alprazolam falls under Drugs and Cosmetics Act, 1940 which provides for punishment of three years imprisonment and the present applicant has already languishing in jail for three years approximately.
9. On merits also, mandatory provisions of the Act have not been followed by the CBN. As regard to legal position, the position has been changed from the earlier order. The rejection order of the bail of co-accused by the Court of Mr. Justice J.K. Maheshwari was taken into consideration which was passed relying on Rajesh Gupta''s case, which has been referred to larger Bench and Section 80 was not considered, therefore, Rajesh Gupta''s citation was not taken as absolute. Later on, in Criminal Appeal No. 1845/2010 Jagdish Singh v. Union of India, the same question was raised before the Hon''ble Apex Court that Rajesh Gupta''s case has been refused by the larger Bench. Thus the legal position is yet to be finally settled. The Hon''ble Apex Court was pleased to clarify the position in It''s order dated 23/09/2010. the relevant portion is quoted as under:
Amarendra Sharma, learned Senior counsel appearing for the Appellant, submitted that the order of the Bombay High Court granting bail to Pradeep Dhond was not set aside by this Court and merely a reference to the larger Bench was hardly a reason justifying denial of bail to the Appellant indefinitely. In this regard, Mr. Sharan pointed out that after issuing Rule, the High Court had directed the case to be passed after disposal of the case of Pradeep Dhond by the Larger Bench of this Court and in the meanwhile had stayed the operation of the bail order passed by the Special Judge. There was no indication that the case of Pradeep Dhond pending before this Court would be disposed of at any early date. In other words, the Appellant was left incarcerated indefinitely . Mr. Sharan also invited our attention to a decision of this Court in
Mr. Mahesh Jain, learned ASG, appearing for Union of India relied upon Rule 66 of the NDPS Rules and submitted that the High Court rightly denied bail to the Appellant.
In the facts of the case, we are unable to agree with the learned ASG and we are of the view that it was not proper, fair or correct for the view that it was not proper, fair or correct for the High Court to stay the bail order passed by the Special Judge for the reason assigned in its order and to leave the matter indefinitely in the limbo. We, accordingly, lift the stay granted by the High Court against the order of the Special Judge granting bail to the Appellant.
In the result, the appeal is allowed.
Hence, it has been argued that from the wording of the order of the Hon''ble Apex Court''s order that as the decision of larger Bench or Pradeep Dhond''s case would be disposed of at an early date, therefore, a person can not be detained for indefinite period or leave the matter indefinitely in the limbo. Relying on the law laid down in the case of Pradeep Dhond Bs. Intelligence Officer, Narcotics Control Bureau, Ballard Estate and another (Criminal Appeal No. 5787/2005 High Court of Bombay. In SLP No. 4976/2006 Union of India v. Radeep Shivram Dhond and anr. State of Uttarakhand v. Rajesh Kumar Gupta 2007 (1) Crimes 6 (SC), Jagdish Singh v. Union of India and Anr. Criminal Appeal No. 1845/2010 dated 23/09/2010 in SLP No. 1845/2010, In SLP No. 1821/2011 (Jagdish Singh v. Union of India and Anr.) dated 01/03/2011. In the case of Harindar Singh ETC v. Union of India and another SLP No. 2176 - 2179/2011 dated 09/03/2011, Anil Kumar Menon @ Allen v. Union of India and Anr. SLP No. 2026/2011 dated 08/03/2011, Union of India v. Devang Bipin Parikh and Ors. SLP No. _/2006 dated 31/03/2006, Roshan S. Kapadia and Anr. SLP No. 5592/2006 dated 15/01/2007, Sarija Banu (A) Janarthani @ Janani and Anr. v. State through Inspector of police Criminal Appeal No. 302/2004, SLP No. 5534/2003, Rafael Palafox Garcia v. Union of India and Anr. 2008 ALL MR (Cri) 3031, Raju Premji v. Customs NER Shillong Unit v. Arun Kanungo v. D. Pakyntein 2009 Cri. L.J. 3979 SC, it has been argued that considering the legal preposition laid down in the case laws, the bail application of the applicant be re-considered and since there Is no case against him, the applicant should be released on bail.
10. The Respondent has opposed the bail application and it has been argued that the third bail application of the applicant was dismissed on merits on 01/10/2010. Since there is no change in circumstances, this bail application is not liable to be considered, hence it should be dismissed. It has been further argued that the applicant was found in illegal possession of Alprazolam; he was the member of gang of smugglers. There is no ground of re-consideration of bail application, hence he is not entitled for bail. Accordingly, this bail application should be dismissed.
11. Considered the arguments and case diary perused.
12. The third bail application of the applicant was dismissed on merits on 01/10/2010 in M. Cr.C. No. 6034/2011. Thereafter, 4th bail application of the applicant was dismissed as not pressed and this 5th bail application has been filed by the applicant. According to the law laid down in the case of State of Maharashtra v. Buddhikoda Subharao AIR 1988 SC 2292, "fresh bail application without any substantial change of facts and circumstances is not maintainable". In the case of State of M.P. v. Kajad 2001 SCC 1520, It has been held about the permissibility of the successive bail application that first bail is rejected; second one is permissible only if it is un changed circumstances, but without changed circumstances, second bail application of the applicant is d to seek review of the earlier judgment, w is not permissible un the Criminal law". In this case, the applicant has failed to mention the change of circumstances;. Hence this 5th bail application deserves to be dismissed being devoid of the merits.
13. So far as the position of Schedule of NDPS Act and position of Schedule-I & II of the NDPS Rules is concerned, the background in which the NDPS Act, 1985 was enacted, has to be considered. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. At the same time, the Courts will have to safeguard the life and liberty of the innocent persons, so that they may not be the victims of the crime, which they have not committed. The object of the Act, inter-alia, is to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. During recent years, new drugs of addiction which have come to know as psychotropic substances have appeared on the scene and posed serious problems to National Governments. There was no comprehensive law to enable exercise of control over psychotropic substances to India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded. In this regard, single convention on Narcotic Drugs, 1961 was held in 1961. Thereafter, United Nations (Vienna Convention) on Psychotropic Substances, 1971 was held. Later on, United Nations (Vienna Convention) against illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 was held and in 1990 SAARC Convention on Narcotic Drugs and Psychotropic Substances was held with respect to International Convention on Narcotic Drugs and Psychotropic Substances. In United Nations (Vienna Convention) on Psychotropic Substances, 1971, four Schedules were prepared, out of which, Schedule-IV contains Alprazolam. In the NDPS Act, 1985 in the "Schedule", list of psychotropic substances has been given in which Alprazolam has been placed at serial No. 30. In the NDPS Act, Psychotropic Substances is defined in Section 2(xxiii), as follows
"Psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.
14. According to Section 8(c) of the NDPS Act, production, manufacture, possession, sale, purchase, transport, use, consume, import inter-state, export inter-state, import into India, export from India or transship of any narcotic drug or psychotropic substance has been prohibited, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or Rules or Orders made there under and in case, where any such provision imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization. In Section 22 of the NDPS Act, provision of punishment for contravention in relation Psychotropic Substances has been made. In Section 23, provision of punishment for illegal import into India, export from India or transshipment of narcotic drugs and psychotropic substances has been made and in Section 24, provision of punishment for external dealings in narcotic drugs and psychotropic substances in contravention of Section 12 has been made.
15. The NDPS Rules are effective from 14/11/1985. In these Rules, in Schedule-I, Narcotic Drugs and Psychotropic Substances has been classified in two tables for the purpose of Rules 53 and 64. In Schedule-II, Psychotropic Substances have been classified for the purpose of Rule 53A and in Schedule -III for the purpose of Rule 65(1) proviso, the Psychotropic Substances has been classified for the grant of license for manufacture of Psychotropic Substances for export only. In this way, all the Schedules are separate. The Rule 53 is defined as follows:
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ner
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Prohibi
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n: Subject to the other provisions of this Chapter, the import into and export out of India of the Narcotic Drugs and Psychotropic Substances specified in Schedule-I is prohibited.
Provided that nothing in this rule shall apply in case the drug substance is imported into or exported out of India subject to an import certificate or export authorisation issued under the provisions of this Chapter and for the purpose mentioned in Chapter VIIA.
The Rule 64 gives a general prohibition, which is as follows:
No person shall manufacture, possess, transport, import Inter-state, export inter - state, sell purchase, consume or use any of the psychotropic substances specified in Schedule-I,
It means that Section 53 prohibits import into and export out of India of the Narcotic Drugs and Psychotropic Substances, while Section 64 prohibits manufacture, possession, transportation, import inter-state, export inter-state, sell, purchase, consumption and use of any psychotropic substances specified in Schedule-I.
16. Therefore, these Rules are exclusively for Psychotropic Substances specified in Schedule-I. It is noticeable that prior to 13/10/2006, there were list of 34 psychotropic substances in Schedule-I while after 13/10/2006, there are only four psychotropic substances in the Schedule-I. Similarly, Rule-65 relates to manufacture of psychotropic substances including the provisions for manufacture of any of psychotropic substances other than those specified in Schedule-I shall be in accordance with the conditions of a licence granted under the Drugs and Cosmetics Rules, 1945 and also psychotropic substances specified in Schedule-III for the purpose of export only. Rule 66 provides for the possession etc of psychotropic substances for any of the purposes covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these Rules. Rule-67 relates to transport of psychotropic substance subject to the provisions of Rule-64. Rule 67-A provides for a special provisions for medical and scientific purposes with respect to Narcotic Drugs and Psychotropic Substances.
17. In this way, all the Schedules -I, II, III of the NDPS Rules and "Schedule" of NDPS Act are different. The Rules nowhere interpret that the possession of psychotropic substances mentioned in "Schedule" of NDPS Act is not prohibited. These Rules deal only with psychotropic substances mentioned in Schedules-I, II, III. The Rules are always made for the aid of the original Act. They do not override the Act. They cannot be interpreted in derogation of the original Act i.e. NDPS Act. Since the NDPS Rules do not permit the possession of all psychotropic substances mentioned in "Schedule" of NDPS Act, hence the possession of narcotic substances included in the "Schedule" of the NDPS Act is prohibited and punishable under the Act. The NDPS Rules only deal with the psychotropic substances mentioned in Schedules-I, II, III of the NDPS Act.
18. Therefore, the argument that in accordance with the Rules 64 to 67 of the NDPS Rules since Alprazolam is not included in Schedules - I,II,III of the Act, its possession is not punishable and not prohibited, is baseless. The prohibition u/s 8 of the NDPS Act prevails as it is. In addition to it, if the possession of Alprazolam is punishable under the Drugs and Cosmetic Act, then the accused may be punished for it simultaneously in both the Acts.
19. Section 80 of the NDPS Act also provides that application of Drugs and Cosmetics Act, 1940 is not bar. The provisions of NDPS Act or the NDPS Rules made there under shall be in addition to, and not in derogation of the Drugs and Cosmetic Act, 1940 or the Rules made there under. Therefore, the argument of the applicant is not sustainable that the possession of Alprazolam is only punishable in the Drugs and Cosmetic Act and not punishable under the NDPS Act. The case laws cited by the applicant''s counsel, under these circumstances, are distinguishable , not beneficial to the applicant.
20. Therefore, on the basis of the above discussion, I am of the view that the applicant is not entitled for bail.
21. Accordingly, this 5th bail application of the applicant Ajay Jain is dismissed.
Cc as per rules.
