Mr.Hitesh Dhirajlal Morjaria & Ors. v. Narcotics Control Bureau & Ors.

an independent application for discharge before the trial court. The applications were rejected by the trial court by the common * 2 * order dated 10th October, 2005. Being aggrieved by the order they have filed the above two Criminal Revision Applications.

Criminal Revision Application No.401 of 2005 arises out of N.D.P.S. (Special Case) No.45 of 2005 and Criminal Revision application NO. 402 of 2005 arises out of N.D.P.S.Special Case No.44 of 2005. The case of the prosecution in the two proceedings stated in brief are as follows : (N.D.P.S.)SPECIAL CASE NO.45 of 2005 :-

3. The officers of N.C.B. had received information that huge quantity of Ephedrine Tablets, a controlled substance had been delivered at Al-Jabbar Kesineni Tours and Travels, Shop No.56, Jithekar Building, Carnac Road, Opp. Development Bank, Mumbai-400 003 sent by one Vipul from Raniganj, Secunderabad, Andhra Pradesh. The consignment was to be delivered to one Neeraj of Mumbai under Transport Receipt No.207688 dated 3.12.2004. The officers of N.C.B. arranged for a raid at the office of Al-Jabbar on 30th December, 2004. On making enquiries with the person-in- charge of Al-Jabbar, they learnt that no-one had come forward to claim the consignment. After maintaining surveillance for some time, when no person came forward to claim the consignment, the officers opened it in the presence of witnesses and the person in-charge of Al-Jabbar. The carton box was found to contain white coloured Ephedrine tablets of total weight of 3.5 kg. As * 3 * the consignment was not accompanied by relevant documents such as Consignment Note in Form-3, it was seized after drawing panchanama. The enquiries made by the officers revealed that Hitesh Morajaria (applicant no.1) is the person who had booked the consignment from their Secundrabad office in the name of Vipul to one Neeraj of Mumbai. N.D.P.S.SPECIAL CASE NO.44 of 2005 :

On receiving information that 74 kgs of Ephedrine tablets, a controlled substance had been delivered at Andhra Express Service Pvt. Ltd, Shop No.11/13, Samrat Niwas, Sadguru Kadam Baba Lane,1 Kolbhat Lane, M.B.Velkar Street, Kalbadevi, Mumbai-400 002 sent by one Prasad from Secunderabad, Andhra Pradesh to be delivered to one Jatin of Mumbai under Transport Receipt No. 207004 dated 7th December, 2004, the officers of NCB raided the premises of M/s.Andhra Express Service Pvt. Ltd on 9th December,

2004. On equiry with the staff of M/s.Andhra Express Service Pvt. Ltd they learnt that no one had come forward to claim the said consignment. It was therefore opened in the presence of witnesses and the staff of M/s. Andhra Express Services Pvt.ltd. The consignment was found to contain 67.170 kgs of Ephydrine tablets, a controlled substance. The tablets were seized by drawing panchanama as the consignment was not accompanied by relevant documents such as the Consignment Note in Form-3. The * 4 * enquiries made by NCB officers revealed that the consignment was booked in the name of Prasad to Jatin at the instance of applicant no.2. It was booked by him stating that it contained harmless medicines belonging to M/s.Win Care Pharma. It was found on enquiry that firm by such name was not in existence. The investigation revealed that there were three more consignments weighing 29 kgs, 10 kgs and 62 kgs booked by applicant no.2 of M/s.Win Care Pharma, with Andhra Express Service Pvt. Ltd for delivery to Mumbai. Two of the consignments weighing 10 kg and 29 kgs were returned back as nobody claimed delivery. Later, the two consignments were seized by Anti Evasion Authorities of Hyderabad.

Applicant no.2 of M/s.Win Care Pharma could not be located at Hyderabad. However, on receiving information, Narcotics Control Bureau raided Room No.4, Hotel Neelkamal at Kalbadevi on 8th February, 2005 and found applicant no.2 alongwith applicant no.1 and one Subha Reddy in the room. Search of the persons and baggages of the three persons resulted in recovery of certain incriminating documents and articles from applicants no.1 and 2. The same were seized by drawing panchanama.

As regards applicant no.1, he was into textile business and started working as an Agent for one Ajaybhai of M/s.Vishal * 5 * Pharma, Delhi for procuring bulk drugs for him on commission basis. In that connection, he came across applicant no.2 who had promised him procurement of Ephedrine Tablets for a client by name Yusuf. Applicant no.1 had paid Rs.65,000/- in cash as advance to applicant no.2 for the purpose. This consignment was seized by the N.C.B.

Both the applicants were arrested on 8th February, 2005 and later released on bail. Samples of Ephedrine Tablets were forwarded to the Deputy Chief Chemist, New Customs House, Mumbai for chemical analysis. The tablets were found to contain Ephedrine Hydrochloride, a controlled substance under the Regulation of Controlled Substances (RCS) Order, 1993 the manufacture, distribution, sale, purchase, transportation etc of which is regulated as per the provisions of the said order made under Section 9A of the N.D.P.S.Act, 1985. In the circumstances, the two above mentioned proceedings came to be filed by N.C.B.

The applicants in their discharge application have contended that Ephedrine was merely a controlled substance and not narcotic drug or substance. Transportation of Ephedrine inpure form is in contravention of the provisions of N.D.P.S.Act but conversion of Ephedrine into medical preparation is not covered by the provisions of the N.D.P.S.Act. Therefore, * 6 * transportation of such medical preparation containing Ephedrine is at the most breach of rules and regulations of the license under Drug and Cosmetic Act and not under N.D.P.S.Act. It was next contended that in the list of Chapter VI Schedule 1 of N.D.P.S.Rules, Ephedrine is not included as one of the narcotic substance or drug. As per Rule 64, manufacture, sale, purchase, transportation, possession etc of any of the psychotropic substance other than those specified in Schedule-1, is not prohibited. As against this, it was contended by N.C.B.that Ephedrine though a controlled substance is used in the manufacture of Amphetamine and Methamphetamine, which as per the Schedule are psychotropic substances. Amphetamines and Methamphetamine are shown in the list of “Psychotropic Substance”. The term “Psychotropic Substance” is defined under Section 2(xxiii) of N.D.P.S.Act. In the circumstances, though Ephedrine is a controlled substance, as it is used for preparation of Amphetamine and Methamphetamine, which are psychotropic substances. The provisions of N.D.P.S.Act are applicable to the case.

Mr.Khan, learned counsel for the applicants relies upon a decision of Single Judge of our High Court dated 30 th January, 2006 in the case of M.V.Henry, Intelligence Officer V/s.Ravi Prakash Goel & Anr where in a similar type of case while * 7 * considering an appeal arising out of rejection of an application for cancellation of bail, had discussed the provisions of N.D.P.S.Act. The questions framed for consideration were whether the prohibition contained in the statute was applicable to such case and whether the bail application filed therein can be decided. It will be convenient to look into the framework of N.D.P.S.Act before considering its application to the facts of the present case. It is clear from the provisions that what is exempted therefrom is use for medical or scientific purpose. In the instant case, what was seized by the police was Ephedrine Tablets. It contained only Ephedrine and not any of its derivatives prepared for such purposes. However, the learned counsel for the applicant submits that in the process of manufacturing tablets, Ephedrine mixed with another materials such as binding agent, talcum powder etc and hence Ephedrine is no more in it’s pure form. The addition of binding agent or talcum powder would not convert Ephedrine into any of its derivatives. It continues to be Ephedrine though not cent per cent pure. Therefore, I find no substance in the claim that Ephedrine Tablets that were seized by N.C.B. cannot be said to be Ephedrine, a controlled substance. Mr.Merchant relies upon another decision of the Apex Court in the case of State of Uttaranchal V/s.Rajesh Kumar * 8 * Gupta reported in (2007) 1 S.C.C.page 356. This decision of the Apex Court also arises out an application for bail. It is to be noted that both the decisions relied upon by the applicants specifically make it clear that the observations in the decisions are for limited purposes and are of prima-facie nature, since they are made at the stage of bail applications. In both the orders, it has been specifically clarified that ultimately the prosecution may be able to establish application of N.D.P.S.Act and in that case will be liable for prosecution. In these circumstances, the two decision are not relevant for deciding the case on hand.

As already seen above, Ephedrine Tables which were transported at the instance of the applicants, is a controlled substance. As seen from the reply filed by the respondents, it can be used for manufacture of psychotropic substances. Therefore, the applicability of N.D.P.S.Act at this stage, which is also a stage of prima-facie hearing, cannot be questioned. In my opinion, the learned Civil Judge has rightly considered the aspect as regards the applicability of N.D.P.S.Act and there is no need to interfere with the decision. Both the applications are rejected. [SMT.R.P.SONDURBALDOTA, J] * 9 *