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HIGH COURT OF DELHI
SULTAN ANSARI ..... Petitioner
Through: Mr. S.S. Das, Ms. Sia Das and Ms. Ria Das, Advocates
Through: Mr. Satish Aggarwala, Senior Standing Counsel with Mr. Gagan Vaswani, Advocate
JUDGMENT
1. The present application under Section 439 of Code of Criminal Procedure, 1973 („Cr.P.C‟), has been filed by the applicant/accused seeking regular bail in Case No. 7520/2016 (old SC No. 06A/2015) registered at Police Station Directorate of Revenue Intelligence („DRI‟), New Delhi, for offences punishable under Sections 22/25/25A/26/29/ 30/38 of the Narcotic Drugs and Psychotropic Substances Act, 1985 („NDPS Act‟).
2. Briefly stated, the case of prosecution is that the DRI had received a specific information that members of a syndicate, operating from different places, were engaged in illegal trade of psychotropic substances and controlled substances under the NDPS Act. On the basis of the said information, the teams of DRI had carried out search operations simultaneously at various places which had led to recovery of contraband substances on 19.08.2015 and 20.08.2015. It is alleged that on 19.08.2015, 250 kg of Pseudoephedrine Hydrochloride, a controlled substance, had been seized from M/s. Lakshya Traders, Shakarpur, Delhi, which had been clandestinely and fraudulently removed from M/s. G.T. Biopharma Private Limited, Kala Amb, Himachal Pradesh on 17.08.2015. During another raid conducted on 20.08.2015, the officials had seized 100 kg of Pseudoephedrine Hydrochloride from M/s. Akash Logistics Pvt. Ltd. Kamla Market, Asaf Ali Road, which had been received from M/s. Daffohils Laboratories Pvt. Ltd, Dehradun and had been consigned to M/s. Weishorn Bio Tech, Delhi. It is alleged that one Manoj Kumar Nayak (co-accused) was the proprietor of M/s Lakshya Traders, and the other co-accused D.P. Saxena was the proprietor of M/s. Weishorn Bio Tech, Delhi. On 19.08.2015, the officials of DRI had also conducted a raid at the premises of M/s G.T. Biopharma Pvt. Ltd. wherein 75 kg of Ketamine Hydrochloride and 20kg of Alprazolam Hydrochloride, both psychotropic substance, and 6000 tablets containing Pseudoephedrine, a controlled substance, had been found unaccounted in the statutory records. A raid had also been carried out at the premises of M/s. Daffohills Laboratories Pvt. Ltd, Dehradun which had led to recovery of 25 kg Pseudoephedrine Hydrochloride, which had also been found unaccounted in the statutory records. Moreover, 1000 kg of Pseudoephedrine Hydrochloride and 175 kg of Ephedrine, both controlled substance, had also been recovered at premises of M/s. Dhari Chemical, Vadodra. As per DRI, these substances were to be dispatched to M/s. G.T. Biopharma Private Limited and M/s Daffohills Laboratories Private Limited.
3. The present applicant/accused was arrested on 20.08.2015 on the allegations that he was also a part of the larger conspiracy and was employed as manager-cum-chemist at M/s. G.T. Biopharma Private Limited. Charges were framed against the applicant vide order dated 07.08.2018 under Sections 22/25A/29 of NDPS Act.
4. Learned counsel for the applicant/accused submits that the applicant was arrested in this case on 20.08.2015 i.e. more than eight years ago and has remained in judicial custody for about four years. It is stated that he was released on interim bail as per HPC guidelines and he never misused the liberty granted to him. It is also argued that the applicant is suffering from several medical ailments and was also granted interim bail for treatment of kidney failure. It is stated that all the co-accused persons are either already on bail or have been declared proclaimed offenders by the learned Trial Court, and only the present applicant continues to remain in judicial custody. It is argued that the applicant was only an employee i.e. chemist in the accused firm i.e. M/s. G.T. Biopharma Private Limited and he had no role in the commission of alleged offence. It is stated that the applicant was not involved in either procuring or disposing of the psychotropic substance and nothing incriminating was recovered from his possession. It is stated that since there is no material on record which connects the applicant with the commission of alleged offence, he be granted bail.
5. Opposing the present bail application, learned SPP for the DRI states that the applicant was not just an employee, rather he was working as manager-cum-chemist with M/s. G.T. Biopharma Private Limited, who was responsible for supervision of the manufacturing of approved drugs (medicine), being the competent technical staff. It is argued that the applicant had indulged in falsification of statutory records of the said firm, and he all along knew that the controlled substance and psychotropic substance did not go into the manufacturing of finished product but had been clandestinely diverted, and there is sufficient material on record to show not merely knowledge but the active participation of the applicant in the commission of offence. It is further submitted that applicant cannot seek bail on grounds of parity since the co-accused who had been enlarged on bail were involved in illegal trade of controlled substance only whereas the applicant is involved in illegal trade of commercial quantity of controlled as well as psychotropic substance. It is stated that embargo under Section 37 of NDPS Act also applies to the present case, and duration of the custody cannot be the ground to grant bail to the applicant.
6. The arguments addressed by both the parties have been heard and the material placed on record has been perused.
7. As per the case of prosecution/DRI, a conspiracy had been hatched in the year 2014 in Delhi amongst persons operating their individual businesses at different places to illegally trade in controlled and psychotropic substances. The present accused/applicant was employed in M/s. G.T. Biopharma Private Limited, Himachal Pradesh, owned by the co-accused S.K. Bhartiya who has been declared proclaimed offender. Pursuant to receipt of secret information by the officials of DRI, raids had been conducted at several places in Delhi, Himachal Pradesh, Uttarakhand and Gujarat. During these raids, 250 kg of Pseudoephedrine Hydrochloride, a controlled substance, which had been removed from the premises of M/s. G.T. Biopharma Private Limited and had been consigned to M/s. Lakshya Traders was seized in Delhi. Further, during the raid at the premises of M/s. G.T. Biopharma Private Limited in Himachal Pradesh,75.370 kg of Ketamine Hydrochloride and 20 kg of Alprazolam Hydrochloride, both psychotropic substance, and 6000 tablets containing Pseudoephedrine, a controlled substance, were recovered and it was found that the firm had not maintained records of manufacturing with regard to these substances. During investigation, the officials of DRI had also seized the register of consumption, sale, import, and export of controlled substance from M/s. G.T. Biopharma Private Limited. However, the register recorded consumption of Ketamine Hydrochloride for preparation of Ketazee-500 injections. This reflected that even the consumption of Ketamine Hydrochloride, which is actually a psychotropic substance, had been misdeclared as a controlled substance. Further as per DRI, the records of M/s. G.T. Biopharma Private Limited also revealed that Ketazee-500 injections containing Ketamine Hydrochloride had been supplied to M/s. Lakshya Traders and M/s. Lakshya Traders had supplied the same to four different firms, however, the owners of these firms had categorically stated that they had never received any such injections from M/s. Lakshya Traders. Thus, it was revealed that M/s. G.T. Biopharma Private Limited had not actually manufactured Ketazee-500 injections and the original/raw psychotropic substance i.e. Ketamine Hydrochloride had been illegally diverted and supplied to M/s. Lakshya Traders for sale in the market for pecuniary consideration.
8. This Court notes that the role of the present accused/applicant as one of the most vital link of the larger conspiracy was that he was the manager-cum-chemist of M/s. G.T. Biopharma Private Limited, who was responsible for overseeing the manufacturing process in the firm. Large quantities of unaccounted controlled as well as psychotropic substance had been seized from the premises of M/s. G.T. Biopharma Private Limited. The register that had been seized at the premises of M/s. G.T. Biopharma Private Limited had been signed by the present accused/applicant who, as per the material placed on record, was well aware about the fact that huge quantities of psychotropic substance had been diverted illegally to other sources without carrying out the manufacturing of finished product. Thus, prima facie, the applicant had indulged in falsification of the statutory records of the firm, to enable it to carry the illicit and illegal trade of controlled and psychotropic substance in different parts of the country.
9. Learned counsel for the applicant also argued that as far as bar of Section 37 of NDPS Act is concerned, the fact that accused has been in judicial custody for about four years is in itself a ground which entitles the applicant to bail. In this regard, reliance had been placed on decisions wherein the Hon‟ble Apex Court has granted bail on the ground of length of incarceration. This Court, however, notes that Section 37 of NDPS Act reads as under:
10. The section creates an embargo, which is to be first satisfied before an accused can be granted bail. The scheme of Section 37 was explained by Hon‟ble Apex Court in case of State of Kerala v. Rajesh (2020) 12 SCC 122 by way of following observations:
11. In Narcotics Control Bureau v. Mohit Aggarwal 2022 SCC OnLine SC 891, the three-judge bench of Hon‟ble Apex Court had held that the term „reasonable grounds‟ in Section 37 of NDPS Act would mean some credible and plausible ground for believing that the accused is not guilty of the alleged offence. The relevant observations in this regard are as under:
12. This Court while deciding this case remains conscious of the fact that there can be no parameter of judging regarding a person involving himself again in similar kind of offences, however, the gravity of the offence and prima facie case against the accused also is one of the factors which has to be considered while granting bail in such cases.
13. This case per se is not a case of mere recovery of unaccounted controlled and psychotropic substance, but of a graver offence where such substances were obtained from different sources on the pretext of preparation of medicines ‘to save lives’, however, instead of manufacturing the injections and other medicines which were to be manufactured using that controlled or psychotropic substance, it was used to destroy lives of people since it was diverted and supplied to other firms in its raw form to be further sold illicitly in the market for monetary consideration for consumption by various persons. This indeed, alongwith the fact that statutory records of M/s. G.T. Biopharma Private Limited were manipulated and not properly maintained for this purpose by the present applicant who was its manager-cum-chemist, adds to the gravity of the offence.
14. Thus, in view of the foregoing discussion, this Court is not inclined to grant bail to the accused/applicant, at this stage.
15. Accordingly, the present application along with pending applications if any, stands dismissed.
16. It is, however, clarified that the observations made hereinabove are solely for the purpose of deciding the present application and the same shall have no bearing on the merits of the case during trial.
17. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J SEPTEMBER 4, 2023