Saurabh Vikas Gondhalekar v. The Director of Revenue Intelligence

Legal Reasoning

ba766.24-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD BAIL APPLICATION NO. 766 OF 2024Saurabh Vikas Gondhalekar...Applicant Versus The Director of Revenue Intelligence...Respondent ...Advocate for Applicant : Shri R.S. Deshmukh, senior counsel a/wKuldeep Kahalekar, Mr. M.S. Deshmukh and Mr. R. Dodiya,advocates i/b Mr. Nilesh S. Ghanekar Special Public Prosecutor for Respondent : Mr. Parikshit P. Dawalkar ….. CORAM : SHIVKUMAR DIGE, J. DATED : 9th SEPTEMBER, 2024. PER COURT:- 1.The applicant is seeking regular bail in crime F. No.DRI/MZU/PURU/ENQ-46 of 2023 for the offences punishable underSections 22, 25, 27-A, 28 and 29 of Narcotics Drugs andPsychotropic Substances Act, 1985 (for short the “NDPS” Act). 2.It is the prosecution’s case that the Director of RevenueIntelligence (for short “DRI.”) received the intelligence that, accusedNo.1 Jitesh Hihnoriya is involved in illicit manufacturing of syntheticNDPS substance Mephedrone (MD) or Meth and he is usingfollowing premises for manufacturing and storage of synthetic NDPSsubstances; ba766.24-2- 1) A Company premises of M/s. Geeta Chemical Industriessituated at Plot No. G-42, MIDC Waluj, Dist. ChatrapatiSambhaji Nagar2) Residential address of Mr. Jitesh Hinhoriya, residing at 19,Florenza Villas, Kanchanwadi, Aurangabad.The DRI also received intelligence that accused No.1 Jiteshis manufacturing or storing synthetic NDPS substance at M/sDharma, pharma, F1 Shri Ram Enclave, Aurangabad, M/s. ApexMedichem, B- 28, MIDC Paithan (for short “said Company”) and M/sSri Mahalakshmi Chemical Works, Plot No.B7, MIDC areaAurangabad. Accordingly, the searches were conductedsimultaneously at all the above-mentioned premises by the DRIofficers. During the search conducted at the residential premises ofJitesh Hinhoriya, 23.32 Kgs of Cocaine and 2.96 Kgs of Mephedrone,were recovered.3. The allegations against the applicant are that he is theManaging Director of M/s Apex Medichem. The DRI team conductedsearch in the premises of M/s Apex Medichem on 28.10.2023 at13:00 hrs onwards. During the search proceedings, large number of ba766.24-3- plastic/steel drums containing liquid solvents/ chemicals/ materialswere found to be available at the said premises. Number of saiddrums were inspected in front of RFSL officials on random basis.However, officers could not locate the suspected drum containingnarcotics/psychotropic substance hence the search proceedingsconcluded at 19:30 hrs on the same day i.e. 28.10.2023. During thepanchanma proceedings, it was observed that CCTV cameras of M/sApex Medichem were switched off by Accused No.3 Shekhar PagarStore Manager, after attending a phone call. Accordingly, a statementof accused No.3 Shekhar was recorded under Section 67 of theNDPS Act, 1985 on 28.10.2023 at 20:00 hrs onwards wherein, hevoluntary admitted that on 25.10.2023, a blue colour drum containingsome chemical in liquid form along with some other material, hadbeen received in M/s Apex Medichem from M/s. VialancePharmaceuticals Pvt Ltd, B-38, MIDC Paithan, Aurangabad. He alsoidentified the said drum, which was lying at the back side of Plant Cof M/s Apex Medichem having a label of "CH+PH Mix". Therefore,DRI team again conducted search in the premises of M/s ApexMedichem. The said drum was containing 107 Ltr. of chemicalsubstance purported to be Mephedrone worth of R.160.00 Crorescame to be seized, it is commercial quantity. The applicant has beenarrested on 29.10.2023. It is alleged that the applicant was involvedin abating the accused no.1 Shri Jitesh in the manufacturing and ba766.24-4- storage of Mephedrone and also provided the raw materials andequipments for its preparation without making any proper entry or anydocumentation to the accused no.1 Shri Jitesh. It is alleged that afterarrest of accused No.1 Jitesh, the applicant had instructed theaccused No.3, Shri Shekhar to dismantle the lab set up by theaccused No.1 Jitesh and bring back the articles lying there in saidCompany. He also instructed to switch off CCTV cameras whiledoing so. It is alleged that the applicant is Managing Director of saidCompany and being Director, he is responsible for manufacturing ofMephedrone and drum containing Mephedrone found in saidCompany. 4.It is the contention of Shri R.S. Deshmukh, learned seniorcounsel for the applicant that the applicant has been falselyimplicated in this case. The allegations against the applicant are thathe has provided raw materials to the accused No.1 Shri Jitesh forpreparing Mephedrone. Learned senior counsel further submittedthat the said Company was purchased by the applicant from theearlier owner in the year 2021. Earlier the said Company wasfunctioning under the control of accused No.1 Shri Jitesh. As accusedNo.1 Shri Jitesh was expert in the medicine field, hence the applicantappointed him as consultant for the said Company. Learned seniorcounsel further submitted that it was decided between the applicantand accused No.1 Shri Jitesh to develop the intermediates of anti ba766.24-5- cancer drug by setting up lab in the said Company. For that purposea special set up was erected by accused No.1 Shri Jitesh formanufacturing of intermediates of anti cancer drug. There wascorrespondence between the applicant and accused No.1 Shri Jiteshabout the development of intermediates of anti cancer drug.Learned senior counsel further submitted that the applicant has beenimplicated in this case only on the basis of statement of accusedNo.3 Shri Shekhar Pagar, given under Section 167 of the NDPS Act.In his statement, he has stated that the applicant had provided rawmaterials to accused No.1 Shri Jitesh without taking entry in the stockregister of the said company. He further stated that when theaccused No.1 Shri Jitesh was arrested, the applicant had directedhim to switch off the CCTV camera and dismantle the Lab set up byaccused No.1 Shri Jitesh and to bring the articles lying there in ApexMedichem. Learned senior counsel further submitted that theapplicant was not aware about the activities done by accused No.1Shri Jitesh. The statement of accused No.1 Shri Jitesh is recordedunder section 67 of the NDPS Act. In the said statement, he hasstated that though the applicant was managing director of the saidcompany, he was not aware about the preparation of Mephedrone byhim and the applicant had provided raw materials to him fordevelopment of intermediates of anti cancer drug. Learned seniorcounsel further submitted that if the prosecution is relying on the ba766.24-6- statement of accused No.3 Shri Shekhar under section 67 of theNDPS Act, the prosecution should rely on the statement of accusedNo.1 Shri Jitesh. The prosecution cannot adopt a pick and choosepolicy. Learned senior counsel further submitted that the applicant’sfather is suffering from cancer and he is under treatment. As thecancer is life threatening and the applicant’s Company is a pharmacyCompany, hence, with the help of accused No.1 Shri Jitesh, hewanted to manufacture intermediates of anti cancer drug in the saidCompany. Learned senior counsel further submitted that theprosecution in their charge sheet has attributed specific role to theapplicant stating that he was negligent and he did not give attentionto the activities of accused No.1 Shri Jitesh and the accused No.1Shri Jitesh has misused the premises of the applicant. The applicantis well educated. He has no criminal antecedents. He is behind barfor more than 10 months. Learned senior counsel further submittedthat there are violations of mandatory provisions of Sections 42 and52 of the NDPS Act. On two occasions the panchnamas wereprepared by the DRI authority. In the said panchnamas, they did notfind anything in the premises of said Company. The allegationsagainst the applicant are in respect of abetment. Considering thesefacts, further detention of the applicant is not required and requestedto allow the application. ba766.24-7- The learned senior counsel relied on the followingjudgments:-i)Criminal appeal No. 3345 of 2023, Kuldip @ BhonduShivnarayan vs. State of Gujrat (Hon’ble Supreme court ofIndia)ii)Criminal Appeal No. 1442 of 2024, Mustkin vs. State ofChhatisgarh (Hon’ble Supreme Court of India).iii)Criminal Appeal No. 3191 of 2023, Yusuf @ Asif vs. State(Hon’ble Supreme court of India).iv)Bail application No. 66 of 2024, Vaisakh vs. State of Keralaand another (Hon’ble High Court of Kerala at Erankulam)v)Criminal appeal No. 1145 of 2001, Union of India vs.Satrohan (Hon’ble Supreme Court of India).vi)Sarija Banu (A) Janarthani @ Janani and another vs. Statethrough Inspector of Police, (2004) 12 SCC 266.vii)Criminal bail Application No. 1003 of 2021, Rahul GokulSingh Meena vs. State of Maharashtra, decided by thisCourt. viii)Bail application No. 1589 of 2024, Jahagir Abdul RehmanShaikh vs. State of Maharashtra, decided by this Court. ix)Lucky Sharma vs. State of Goa, 2023 Supreme (Bom) ba766.24-8- 1305.x)Bail application No. 1127 of 2024, Sureshkumar KisanramBishnoi and another vs. The State of Maharashtra, decidedby this court on 14.8.2024.xi)Bail application No. 639 of 2024, Sahil Shah Sattar Shah vs.State of Maharashtra, decided by this Court on 14.8.2024.xiii)Tofan Singh vs. State of Tamil Nadu AIR 2020 SC 5592. 5.It is contention of learned special public prosecutor Mr.Parikshit Dawalkar that the applicant is the Managing Director of thesaid company, where the DRI found a drum containing 107 liter ofMephedrone amounting to Rs.160 Crore, it is commercial quantity.Learned counsel further submitted that the applicant had providedraw materials for manufacturing of the said Mephedrone to accusedNo.1 Shri Jitesh. The applicant had directed accused No.3 ShriShekhar not to take entries of those raw materials provided toaccused No.1 Shri Jitesh in the stock register of the company, whichshows involvement of the applicant in the crime. Learned counselfurther submitted that after arrest of accused No.1 Shri Jitesh, theapplicant had directed accused No.3 Shri Shekhar to dismantle thelab erected by accused No.1 Shri Jitesh and bring back the articleslying there to the applicant’s company by switching off the CCTVcameras. It shows that the applicant wanted to destroy the evidence ba766.24-9- of manufacturing of Mephedrone. Learned counsel further submittedthat though the applicant is stating that he had directed the accusedNo.1 Shri Jitesh for development of the intermediates of anti cancerdrug but there is no mutual agreement between them to establish thesaid fact nor he never enquired with accused No.1 Shri Jiteshwhether he had received any permission from the Government fordevelopment of intermediates of anti cancer drug and Research andDevelopment, which shows his active involvement in the crime.Learned counsel further submitted that section 35 of the NDPS Actstates about the mental state of the person. In the present case, themental state of the applicant shows his involvement in the crime andthe applicant has not rebutted the said presumption. As per Section38(2) of NDPS Act, the Managing Director of the Company is directlyresponsible for the offence. There is compliance of sections 42 and52 of the NDPS Act, hence Section 37 of the NDPS Act is applicableagainst the applicant and requested to reject the application.6.The learned special public prosecutor relied on thejudgment in Mukesh Rajaram Chaudhari vs. The State ofMaharashtra, MANU/MH/3934/2023.7.I have heard both the learned counsel. Perused theimpugned order passed by the Special court and the charge sheet ba766.24-10- produced on record. The main allegations against the applicant arethat (i) He is the Managing Director of the M/s Apex Medichem,where drum containing 107 liter of Mephedrone found, which iscommercial quantity. (ii) He provided raw materials to accused No.1Shri Jitesh without making entry of it in the stock register of thecompany which are used for manufacturing of Mephedrone. (iii) Afterarrest of accused No.1 Shri Jitesh, he directed accused No.3 ShriShekhar to dismantle the lab erected by accused No.1 Shri Jitesh inhis company and he directed accused No.3 Shri Shekhar to switch offthe CCTV cameras while bringing the raw materials, finished goodsand installed equipments and other materials lying in the lab erectedby accused No.1 Shri Jitesh back to the Apex Medichem.8.It appears from the charge sheet that the role attributed tothe applicant is abetment by providing raw materials for preparationof Mephedrone and involvement in the crime of manufacturing ofMephedrone. It appears from the charge sheet that the DRI hasrecorded the confessional statement of accused No.1 Shri Jitesh, theapplicant and the accused No.3 Shri Shekhar under Section 67 of theNDPS Act. The prosecution is mainly relying on the statement ofaccused No.3 Shri Shekhar, Manager of the applicant’s company. Inthe said statement, he has stated that the applicant was providingraw materials to accused No.1 Shri Jitesh without taking entry of it in ba766.24-11- the stock register of the company. After arrest of accused No.1 ShriJitesh, the applicant had instructed him to dismantle the lab erectedby the accused No.1 Shri Jitesh in their company and also instructedhim to switch off the CCTV cameras and bring all the articles lyingthere to the said company. The DRI has recorded the statement ofthe accused No.1 Jitesh with the permission of the Special Court inpresence of the Jailer at Harsul. In the said statement, he has statedthat he was consultant in the company of applicant and as per theterms with the applicant, he had to develop the intermediates of anticancer drug R and D. He further stated that the applicant wasproviding raw materials for development of intermediates of anticancer drug R and D but he was using the said raw materials forpreparing the Mephedrone. He further stated that the applicant wasnot aware about the manufacturing of Mephedrone. He has furtherstated that in collusion with accused No.4 Jitendra Panchal, he wasdoing those activities.9.As prosecution mainly rely on the statement of accusedNo.3 Shri Shekhar against the applicant, so statement of accusedNo.1 Shri Jitesh has to be considered. It is contention of the learnedSpecial Public Prosecutor that the applicant was managing director ofthe said company. He provided raw materials to the accused No.1Shri Jitesh without taking entries of it in stock register, in return he ba766.24-12- has received Rs.21,00,000/- within a period of nine months. Heinstructed accused No.3 Shri Shekhar to dismantle the lab and bringarticles lying there by switching of CCTV cameras. The applicant andaccused No.1 Shri Jitesh neither has any legal documents from thecompetent authorities for R and D or manufacturing of intermediatesof anti cancer drug nor has any agreement. All these acts of theapplicant show his involvement in the crime. 10.It appears from the record that the applicant had given aletter in response to the letter of the accused No.1 Shri Jitesh fordevelopment of intermediates of anti cancer drug or oncologyintermediates. By the said letter, the applicant permitted the accusedNo.1 Shri Jitesh to set up lab and procurement of raw materials andother activities for the said development. Prima facie, thesecorrespondence show that there was agreement between theapplicant and accused No.1 Shri Jitesh about development ofIntermediates of anti cancer drug. 11.In respect of allegations about instructions given to theaccused No.3, Shri Shekhar, in my view, the act of the applicant i.e.instructions given to accused No.3 Shri Shekhar to dismantle the laberected by the accused No.1 Shri Jitesh and switching off the CCTVcameras are involvement of the applicant in manufacturing of the ba766.24-13- Mephedrone or not is part of evidence. As observed earlier, itappears from record that there was correspondence between theapplicant and the accused No.1 Shri Jitesh about development ofintermediates anti cancer drug and the the allegations against theapplicant are that he provided raw materials to accused No.1 ShriJitesh without taking entry of it. It appears from the record that theaccused No.1 Shri Jitesh was in-charge of the said company, wheredrum containing Mephedrone was found. The accused No.1 ShriJitesh in his statement admits these facts. He admits that he hadmoved the said drum in the said Company. So, to prove theinvolvement of the applicant in the said crime, evidence is required.Mere on statement of co-accused, his role cannot be established.12.It is the contention of learned special public prosecutor thatas per Section 38(2) of the NDPS Act, the Managing Director of thecompany is directly responsible for the offence. In my view, Section38 of NDPS Act provides about the role of every person of theCompany. This section applies when it is proved that the offencehas been committed with the consent or connivance or attributable toany neglect on the part of the Director, Manager or Secretary or otherOfficer of the company. In the present case, the evidence is requiredto prove the involvement of the applicant in the present crime that hehad knowledge about the act committed by accused No.1 or there ba766.24-14- was willful neglect on the part of the applicant. 13.It is the contention of learned Special Public Prosecutorthat WhatsApp group was created by the applicant alongwithaccused No.1 Shri Jitesh and accused No.3 Shri Shekhar. In thesaid WhatsApp group the names of the drugs were sent by theapplicant to accused No.1 Shri Jitesh. In my view, sending thenames of the drugs in the WhatsApp group at prima facie stagecannot be a ground to connect the applicant with the said crime. Itrequires evidence to establish the role of the applicant in the saidcrime. The applicant is well educated. He has no criminalantecedents. He has movable and immovable properties inAurangabad. He is behind bar for more than ten months.Considering the above reasons, I am inclined to allow the bailapplication. I have gone through the case law cited by the learnedspecial public prosecutor. The facts of cited case and the case inhand are different. In the present case, considering the allegationsagainst the applicant, the evidence is needed to prove hisinvolvement in the present crime. 14.In view of the above, I pass the following order:-O R D E R ba766.24-15- I.Application is allowed.II.The applicant in connection with crime F. No. DRI/MZU/PURU/ENQ-46 of 2023 for the offences punishable underSections 22, 25, 27-A, 28 and 29 of Narcotics Drugs andPsychotropic Substances Act, 1985, be released on bail onfurnishing personal bond of Rs.50,000/- with one surety of thelike amount on following conditions:- a)The applicant shall not tamper with the prosecutionevidence and shall not pressurize the witnesses, in anymanner. b)The applicant shall surrender his passport before the trialcourt. 15.It is made clear that the observations made in this order areprima facie in nature and the trial court shall not get influenced bythe same and decide the trial on its own merit. (SHIVKUMAR DIGE, J.) rlj/