IMPORTANT POINT
Provisions of the NDPS Act, 1985 cannot be read in exclusion to the Drugs and Cosmetics Act, 1940 and that if the action of an accused amounts to a prima facie violation of Section 8 of the NDPS Act, 1985, the circumstances and the gravity of the offence does not entitle such an accused to be granted bail.

JUDGMENT

Anu Malhotra, J.—The applicant Arvind Kumar seeks the grant of bail in terms of Section 439 of the Cr.P.C., 1973 in Sessions Case No.374/2018 in relation to the alleged commission of the offences punishable under Sections 8, 21, 22 and 29 of the NDPS Act, 1985 with it having been alleged that for the entire quantity of seized narcotics and psychotropic substances, Harish Chander, proprietor of M/s Shiv Medicos and the present applicant, proprietor of M/s City Enterprises had not followed the mandated provisions of Rule 65 of the Drugs and Cosmetics Rules, 1945.

2. Notice of the petition was issued to the Central Bureau of Narcotics i.e. the respondent and both the applicant and the respondent have addressedtheir submissions qua the prayer made by the petitioner. Reply to the petition has been filed by the respondent. Written submissions on behalf of either side have also been submitted, perused and considered.

3. The allegations that have been made in the Sessions Case No.374/2018 filed by the respondent are to the effect that an information had been received that a person named Harish Chander proprietor of M/s Shiv Medicos (the co-accused presently in judicial custody) at 1706/8, First Floor, Milap Bhawan, Bhagirath Palace, Delhi-06 was selling narcotics and psychotropic medicines illegally at his shop and on search of his shop being conducted, the narcotics and psychotropic medicines were recovered in a huge quantity as detailed in the complaint.

4. The said co-accused Harish Chander as per the complaint was not able to produce any purchase or sale documents for these narcotics and psychotropic medicines which were thus seized under Rule 65 of the Drugs and Cosmetics Rules, 1945 for violation of Rule 65A of the NDPS Act, 1985. The medicines so seized, were to the effect:-

“i. Alprazolam-2,06,125 tablets

ii. Pentazocine inj. - 3,194 ampules

iii. Nitrazepam tablet -20,400 tablets.

iv. Tramadol- 1,28,880 tablets & capsules

v. Diazepam- 1,400 tablets.

vi. Diazepam inj. - 380 ampules.

vii. Lorazepam-31260 tablets.

viii. Chlordiazepoxide - 7,800 tablets.

ix. Clonazepam-3,190 tablets.

x. Zolpidem- 300 tablets.

xi. Buprenorphine inj.- 6,050 ampules.

xii. Codeine Phosphate Syrup (100ml)- 9,237 bottles.”,

and samples were stated to have been drawn from the medicines seized from Sh. Harish Chander, proprietor of M/s Shiv Medicos.

5. During the course of the investigation conducted, the call details record of the co-accused Harish Chander seized from mobile numbers 8368673642 and 9871157024 were obtained from the concerned Nodal Officer and it was found in the CDRs of mobile number 8368673642 that there were frequent calls that had been made with mobile number 9728259445, which was registered in the name of Arvind Taluja, r/o Sonipat Haryana i.e. the present petitioner.

6. As per the complaint filed in Court on the basis of the statement of the accused Harish Chander and the report received from M/s Hariwin Pharma through M/s Laborate Pharmaceuticals, it came to notice that the mobile number 9728259445 mentioned in the bill of M/s City Enterprises, Daryaganj is the same number as mentioned by the co-accused Harish Chander in his statement. A search was thus conducted on 30.07.2018 at M/s City Enterprises, Daryaganj, New Delhi, but nothing incriminating was found nor was anything taken into possession and during the said search neither narcotics nor psychotropic nor general medicines were found in the shop M/s City Enterprises and the statement of the present petitioner was recorded under Section 67 of the NDPS Act, 1985. Through his voluntary statement recorded on 30.07.2018 written in his own handwriting, the petitioner is stated to have stated that he purchased the narcotics and psychotropic medicines on bill from M/s Hariwin Pharma and had further sold the narcotics and psychotropic medicines without bills illegally to Sh. Harish Chander, the co-accused on a frequent basis and also stated that two coolies