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Synopsis

The Delhi High Court recently granted bail to an accused charged for offences under Sections 22, 25, 25A, and 29 of the NDPS Act.

The case involved recovery of Pseudoephedrine Hydrochloride, which is a controlled substance under the NDPS Act, and Ketamine Hydrochlroide, which is a psychotropic substance under the NDPS Act.

Pseudoephedrine is a controlled substance and therefore, inasmuch as the recovery of the said substance is concerned, rigors of Section 37 of the NDPS Act are not applicable, the bench of Justice Amit Sharma observed.

In the present case, the recovery of Ketamine Hydrochloride was from the premises of M/s G.T. Biopharma Pvt. Ltd.

"It is pertinent to note that the said recovery cannot be attributed to the present applicant, since it is not the case of the prosecution that the present applicant was in any way responsible for running M/s G.T. Biopharma Pvt. Ltd," court noted.

The prosecution’s case was that as per the invoices recovered, Ketazee-500 injections containing Ketamine Hydrochloride were supplied by M/s G.T. Biopharma Pvt. Ltd. to M/s Lakshya Traders. It was the case of the prosecution that the said injections were further shown to be sold by M/s Lakshya Traders to M/s Nath Medicos, M/s Triveni Medicos, M/s Dinesh Medicos and M/s Pinaire Medicos. It was alleged that in their statements recorded under Section 67 of the NDPS Act, the proprietors of the aforesaid firms denied having purchased the said injections from M/s Lakshya Traders. Since it was the case of the prosecution that the present applicant was the de facto owner of M/s Lakshya Traders, therefore the receipt of the said injections and their clandestine supply to unknown persons would attract the rigors of Section 37 under the NDPS Act with respect to the present applicant.

The bench while assessing the said allegations of the prosecution observed, “Even if it is assumed for the sake of argument that the present applicant was the de-facto owner of M/s Lakshya Traders, even then, the seizure of certain documents showing receipt and further supply of aforesaid injections containing Ketamine Hydrochloride, sans any recovery, cannot be a foundation for launching prosecution against the present applicant with respect to the aforesaid psychotropic substance. The burden of proving that certain substances fall under the category of 'narcotics drug' or 'psychotropic substance' is upon the prosecution, which is discharged by chemical analysis of the representative samples taken from the alleged recovery.”

The bench further observed that “in the absence of such chemical analysis, one cannot presume, on the basis of certain invoices, that the substance mentioned therein is an alleged contraband manufactured, possessed, sold, purchased, transported, imported inter-state, exported inter-state or used in violation of Section 22 of the NDPS Act. The primary requirement for prosecution under the NDPS Act is the existence of a substance which is covered under the said Act. In view of the aforesaid, without such evidence, the present applicant cannot be stated to have committed an offense with respect to Ketamine Hydrochloride, which is a psychotropic substance, covered under the NDPS Act. Therefore, the rigors of Section 37 of the NDPS Act would not be applicable to the applicant's case.”

The court while rejecting the submissions of senior standing counsel for DRI observed, “Judgments relied upon by the learned Sr. SC appearing on behalf of the DRI concern grant of bail in relation to the satisfaction of the twin conditions contained in Section 37 of the NDPS Act. As aforesaid, the position that rigors of Section 37 will not be applicable in a case where the recovery is that of a controlled substance has been clarified by way of various judgments.”

The court admitted the accused on bail and relied upon various judgments of coordinate benches in Niranjan Jayantilal Shah v. Directorate of Revenue Intelligence (BAIL APPLN. 1202/201 in which bail was granted to the applicant in a case where 100 kg Pseudoephedrine was recovered, Chellathambi v. N.C.B. in which a coordinate bench, vide order dated 20.04.2005, granted bail to the applicant in a case of recovery of Ephedrine - a controlled substance, further, Manoj Kumar Nayak v. Director of Revenue Intelligence, judgment dated 03.03.2015, where the recovery was that of Psedoephedrine, while relying on the decision in Niranjan Jayantilal Shah (supra), a coordinate bench granted bail to the applicant therein.

The bench of Justice Amit Sharma held that “in view of the recovery of Pseudoephedrine, which is a controlled substance and the aforementioned precedents, this court is of the opinion that Section 37 of the NDPS Act will not be attracted in the present case as the allegations with respect to the present applicant are covered under Section 25A of the NDPS Act.”

The court allowed the bail application of the applicant upon his furnishing a personal bond in the sum of Rs. 1,00,000 along with two sureties of the like amount.

Case Title: DHIRENDRA PRAKASH SAXENA Vs. DIRECTORATE OF REVENUE INTELLIGENCE