The Gauhati High Court recently denied anticipatory bail to a person in connection with a case registered under Section 21(c) / 29 of NDPS Act, 1985 holding that recovery or seizure of the contraband is not mandatory for their arrest, detention or even their conviction.
Justice Sanjay Kumar Medhi observed that this was so because the offences under the Act were part of an organised crime and any convincing and corroborating material in favour of the prosecution would be sufficient to establish their guilt.
"This Court finds force in the submission of the learned APP, Assam that offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons. Therefore, recovery or seizure cannot be held to be a sine qua non for the arrest/detention or even for conviction if there are other convincing and corroborating materials which in the present case are abundantly available."
It was also found that in a case involving the NDPS Act, various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc. In the present case, the contraband is a commercial quantity and the substance is a chemically manufactured drug.
Moreover, Section 37 lays down that before granting bail, the relevant factors are that the Court should come to the satisfaction that prima facie the petitioner is not guilty of the offence and also the petitioner has to satisfy the Court that in case bail is granted, he is not likely to commit further offences. The aforesaid two factors did not seem to be fulfilled in the present case, and therefore the bail applications were dismissed.
The petitioner had filed an application under Section 438 CrPC seeking pre-arrest bail in connection with a case registered under Section 21(c) / 29 of the NDPS Act.
The case of the petitioner is that the allegations in the FIR are incorrect though it is a fact that a truck was intercepted and in the search, Eskuf cough syrup in 44,160 bottles in 276 cartons was recovered without any documents. The case of the petitioner is that the psychotropic substance seized was sold by the agency run by the petitioner to a distributor in the Karimganj district.
The further case of the petitioner is that one Anirudh Kumar Singh was running M/s. Hematech Pharmaceuticals at Narangi. The said Anirudh Kumar Singh had requested the present petitioner, who was running another drug distributorship in the name of ANM Pharmaceuticals to run his distributorship and accordingly executed a Power of Attorney dated 21.01.2021 in favour of the petitioner on the strength of which, the petitioner is running the business of M/s. Hematech Pharmaceuticals.
The Court by order dated 07 July, 2021 after going through the Case Diary had noticed that there was an issue as to whether the GST invoices are manufactured or genuine and accordingly, directed the Investigating Officer to file a report. However, in the meantime, an interim order was granted in favour of the petitioner.
Court recorded in the present order that on the last date of hearing the updated Case Diary was produced which contains the statements of Shri Arup Kanti Ghosh, the proprietor of M/s. Nalini Drugs Distributor along with the note of the IO, who had visited the location.
It was observed that the proprietor has specifically stated that no consignment of the present nature was ever made and all medicines for the Pharmacy are collected from local stockists and on no occasion any medicines were procured from beyond the Barrack Valley. The proprietor has also suspected some foul play regarding the license.
Petitioner argued that after the interim order dated 06.07.2021, the petitioner had appeared before the IO on 15.07.2021 and there is no instance of any misuse. With regard to the material submitted in the updated diary including the statement of Shri Arup Kanti Ghosh, the learned counsel has submitted that perhaps to avoid any complicacy, the proprietor has simply tried to wriggle out of the matter.
The Additional Public Prosecutor appearing for State submitted that from the very initiation of movement of the consignment involving a huge number of bottles in cartoons which admittedly is a psychotropic substance under the NDPS Act as the cough syrup contains a substance called Codeine, there are anomalies/illegalities at different stages including GST invoices and therefore, the present may not be a fit case to continue with the interim protection granted to the petitioner.
The thrust of arguments by the petitioner was on the fact that subsequent generation of bills can at best be a violation of the GST Act and cannot be a violation of the NDPS Act. Petitioners had also contended that though the articles are psychotropic substances it will come under the exception of Section 8(c) of the Act and transportation of the same with necessary documents is available under proviso to Rule 67(4) of the NDPS Rules.
The Court directed the IO of the case to make all efforts to investigate the case so that the persons involved in the heinous offence involved in the NDPS Act can be put to book, strictly in accordance with law.
Considering the very object of the Act, namely to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole, It was held that no case for grant of anticipatory bail was made out. The Court also clarified that the observation made are tentative in nature and shall not cause prejudice to either of the parties in the trial. In view of the above discussion, the bail application was rejected.
Petitioner was represented by advocate A M Bora.
Case Title: AMAL DAS v THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 34