NDPS Act; Superintendent of Customs Vs. L. Abuthahir [Madras High Court, 23-08-2016]

Narcotic Drugs and Psychotropic Substances Act, 1985 – S. 37 – the respondent has committed a heinous crime against the society – there is a bar for grant of bail to accused person, who is in possession of commercial quantity – Additional District and Sessions Judge has not considered the gravity of offence and provisions of Section 37 of NDPS Act and the fact that the allegation against the respondent is, he was dealing and making arrangement for transporting contraband for more than commercial quantity – Judge has not considered these aspects and enlarged the respondent on bail on the sole ground that he is suffering from diabetes and he needs treatment and personal care by his wife – the order enlarging the accused person on bail or granting anticipatory bail without considering the serious allegation made against the accused person and without considering as to whether any prima facie case has been made out and quantum of punishment that may be imposed, then the said order is illegal – Hence, the order of the learned Additional District and Sessions Judge enlarging the respondent on bail, is illegal and non-est in law.

Bail


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CORAM THE HONOURABLE MS. JUSTICE V.M.VELUMANI

DATED : 23.08.2016

Crl.O.P.(MD)No.14252 of 2016  &  Crl.M.P.(MD)No.6652 of 2016

Superintendent of Customs, Central Intelligence Unit, Trichy. (O.R.No.1 of 2016) … Petitioner Versus L.Abuthahir … Respondent

PRAYER: Criminal Original Petition is filed under Sections 439(2) and 482 of the Code of Criminal Procedure, praying to cancel the bail granted by the learned Additional District and Sessions Judge (Special Court for E.C. and NDPS Act cases), Pudukottai, in Cr.M.P.No.1882 of 2016, dated 05.08.2016.

For Petitioner : Mr.C.Arul Vadivel @ Sekar Special Public Prosecutor ^For Respondent : Mr.K.Chellapandian Senior Counsel for Mr.M.S.Jeyakarthick

O R D E R

This Criminal Original Petition has been filed seeking to cancel the bail granted to the respondent by the learned Additional District and Sessions Judge (Special Court for E.C. and NDPS Actcases), Pudukottai, in Cr.M.P.No.1882 of 2016, dated 05.08.2016.

2. The case of the prosecution is that on 26.04.2016, the Officers of Central Intelligence Unit, Head Quarters Office, Trichy, visited M/s.Shri Renganathan Speed Parcel Service, No.8, Nirmala Building, Fort Station Road, Trichy ? 2 and found one parcel said to have contained ?Zolfresh? Tablets having Zolpidem substance. The parcel was transported to one Abu, booked by Mohamed Syed Mustafa/A1, who was working as Medical Representative of M/s.Abbott India Ltd., Mumbai. In the presence of Mohamed Syed Mustafa, the parcel was opened and it was found that 13 boxes of Zolfresh 10 x 10 x 10 Tablets serially numbered from 353 to 359 and 362 to 367 along with Invoice No.77573, dated 23.04.2016 of M/s.P.L.A. Kanagu Pharma, 10-C, Alexandria Road, Cantonment, Trichy, issued in the name of M/s.Athma Mind Centre, 10th Cross East (Dr.Ramakrishnan), Trichy ? 620 018. The said Mohamed Syed Mustafa admitted that he produced Order Form from M/s.Athma Mind Centre, Trichy, to obtain the said Tablets and sent the same to L.Abuthahir, the respondent herein. Mohamed Syed Mustafa confessed that he has been working as Medical Representative for the past six months and previously, one Sureshkumar, who was employed with M/s.Abbott India Limited, Mumbai, in Trichy, used to supply Zolfresh Tablets to Abu of Chennai. He used to procure the Tablets by placing orders in the name of M/s.Athma Mind Centre, Trichy, and supplied the same to Abu. The said Sureshkumar gave mobile number of Mohamed Syed Mustafa to Abu, who placed order for 13000 numbers of Zolfresh Tablets. The said Mohamed Syed Mustafa procured the Tablets from M/s.P.L.A. Kanagu Pharma, Trichy and after receiving money from Abu, he dispatched the same to him. Mohamed Syed Mustafa/A1 was arrested on 27.04.2016 and produced before the learned Judicial Magistrate No.I, Trichy and remanded to judicial custody.

3. L.Abuthahir, the respondent herein, who was a receiver of the parcel in Chennai was intercepted by the Officers of Customs, when he came to receive the parcel from Shri Renganathan Speed Parcel Service at Chennai. The respondent gave voluntary statement that he has procured the Tablets at the instruction of one Jamaludeen of Ramanathapuram and he is at present residing in Dubai and he gave his mobile number. He has also confessed that as per the instructions of Jamaludeen, he used to hand over Zolfresh Tablets to Ravi or Raja, who would call him over phone and take delivery of the Tablets from Abuthathir, the respondent herein. The respondent used to receive Rs.2,000/- to Rs.5,000/- for this work. He has also confessed that Sureshkumar asked him to contact Mohamed Syed Mustafa and he knew that the drugs are to be sold under the prescription of a Doctor, a registered Medical Practitioner and can be transported with proper documents only. He was informed that the Tablets were smuggled from India to Malaysia and admitted the offence. He was arrested on 29.04.2016 and remanded to judicial custody. In the investigation, it was revealed that previously Sureshkumar, the then Medical Representative of Abbott India Limited, purchased three consignments of Zolfresh Tablets (1550 strips) in the name of M/s.R.K.R.Pharma, Trichy. He had also purchased Zolfresh Tablets (2090 strips) in the name of M/s.Athma Mind Care Centre and made payments in cash and sent the same to Abuthathir.

4. The learned Special Public Prosecutor appearing for the petitioner contended that the respondent filed Cr.M.P.No.1405 of 2016 before the Special Court for EC and NDPS Act cases, Pudukottai and the said application was dismissed on 24.05.2016. Again, he filed Cr.M.P.No.1882 of 2016. The learned Special Public Prosecutor filed written objections and opposed the bail application on the ground that the contraband involved in the case is of commercial quantity and as per Section 37 of NDPS Act, there is a bar to grant bail. The learned Additional District and Sessions Judge (Special Court for EC and NDPS Act cases), Pudukottai, without considering the materials on record, including the voluntary statement of the respondent and gravity of the offence, enlarged the respondent on bail, by order dated 05.08.2016.

5. The learned Judge enlarged the respondent on bail on the ground that the respondent is suffering from diabetes and he needs treatment and personal care by his wife. The learned Additional District and Sessions Judge has failed to consider that as per Section 37 of NDPS Act, it is the burden on the accused to prove that he is not guilty of the offence and that he would not commit an offence, if he is enlarged on bail. The Hon’ble Apex Court in a number of judgments has held that the accused persons must prove both the ingredients and then only, the Court can enlarge the petitioners on bail.

6. The learned Special Public Prosecutor also submitted that the Court on being satisfied that the accused is not guilty based on reasonable grounds, can enlarge the accused person on bail. The reasonable ground means something more than prima facie grounds. The learned Additional District and Sessions Judge has enlarged the respondent on bail arbitrarily without assigning any valid reason. The respondent will abscond and live in foreign country and involve in similar offence and the respondent has committed heinous crime endangering the lives and liberty of the people and therefore, prayed for cancellation of bail.

7. The learned Special Public Prosecutor submitted that the weight of 13000 Zolfresh Tablets procured by the respondent and transported to him is 4.745 K.Gs and the quantum of Zolpidem, which is psychotropic substance, is more than commercial quantity. Therefore, Section 37 of NDPS Act is attracted and the learned Additional District and Sessions Judge failed to considerSection 37 of NDPS Act while enlarging the respondent on bail. The learned Additional District and Sessions Judge also failed to consider the well settled guidelines for grant of bail as per orders of this Court and also the Hon’ble Apex Court that the Court while considering the petition for bail must consider,

(a) Prima facie case against the accused person;

(b) quantum of punishment if convicted;

(c) Whether the accused person if enlarged on bail, will tamper with the evidence, influence the witness or abscond; and

(d) whether the accused person will indulge in similar offences, if enlarge on bail or granted anticipatory bail.

8. In support of his submissions, the learned Special Public Prosecutor relied on the following judgments: