Point of Law : It is further been contended that though articles are psychotropic substance it will come under exception of Section 8(c) of Act and transportation of same with necessary documents is available under proviso to Rule 67(4) of NDPS Rules.

Headnote:
Criminal Procedural Code, 1973 - Section 438 - NDPS Act, 1985-Section 21(c), 29, 21, 8(c),37 NDPS Rules - Rule 67(4) - Seeking pre-arrest bail - Whether GST invoices are manufactured or genuine - It is further been contended that though articles are psychotropic substance it will come under exception of Section 8(c) of Act and transportation of same with necessary documents is available under proviso to Rule 67(4) of NDPS Rules (Para 8).
Findings of the Court - Court is of the view that it is a settled position of law that in a case involving the NDPS Act various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc - In the present case, the contraband is a commercial quantity and the substance is chemically manufactured drug - Moreover, Section 37 of the NDPS Act lays down that before granting a bail, relevant factors are that the Court should come to a satisfaction that prima facie the petitioner is not guilty of the offence and also the petitioner has to satisfy the Court that in case bail is granted, he is not likely to commit further offence-The aforesaid two factors do not seem to be fulfilled in the present case.
Result - Dismissed.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. Heard Shri DK Baidya, learned counsel for the petitioner, namely, Amal Das, who has filed this application under Section 438 CrPC seeking pre-arrest bail in connection with Basistha PS Case No. 1023/2020 registered under Section 21(c) / 29 of NDPS Act, 1985. Also heard Shri BB Gogoi, learned Additional Public Prosecutor, Assam.

2. The projected case of the petitioner is that the allegations in the FIR are incorrect though it is a fact that a Truck was intercepted near Jorabat and in the search, Eskuf cough syrup in 44,160 nos. of bottles in 276 nos. of cartoons were recovered without any documents. The projected case of the petitioner is that the psychotropic substance seized was sold by the agency run by the petitioner to a distributor of Karimganj district. The further case of the petitioner is that one Anirudh Kumar Singh was running M/s. Hematech Pharmaceuticals at Narangi. The said Anirudh Kumar Singh had requested the present petitioner, who was running another drug distributorship in the name of ANM Pharmaceuticals to run his distributorship and accordingly executed a Power of Attorney dated 21.01.2021 in favour of the petitioner on the strength of which, the petitioner is running the business of M/s. Hematech Pharmaceuticals. It has also been contented that the consignment in question was purchased from one Daffodil Drugs Private Limited, Kolkata and was accordingly supplied to M/s. Nalini Drugs Distributor by issuing cash memo and E-way bill. It is however apparent that the GST invoice was of a subsequent date than the date of seizure.

3. This Court, vide order dated 07.07.2021, after going through the Case Diary had noticed that there was an issue as to whether the GST invoices are manufactured or genuine and accordingly, directed the Investigating Officer to file a report. However, in the meantime, an interim order was granted in favour of the petitioner.

4. After certain dates, the report was furnished to this Court. This Court vide order dated 05.04.2022 after perusal of the CD had, amongst others, made the following observations:

“4. As per the aforesaid order requiring the IO to submit a report of the GST invoices, it appears that the IO had written a letter dated 21.03.2022. In reply to the said letter, the office of the Deputy Commissioner of State Tax-cum-Assistant Commissioner of Tax, Unit-C had given a reply dated 28.03.2022 from which it appears that the e-Way bill for the goods, in question, were generated on 10.06.2021 at 11.38 am whereas, the vehicle (Truck) with Registration No. NL-01-AB-9942 carrying the contrabands was intercepted on 09.06.2021 at 10.10 pm when no relevant documents could be produced regarding the goods. Another issue had appeared regarding the existence of M/S Nalini Drugs Distributors, Karimganj which was the destination of the goods. To substantiate the claim of the applicant regarding the authenticity of such existence, an RTI reply dated 25.11.2021 has been placed on record. The following queries were mad in the said application:

(i) Whether any drug license has been issued to M/S Nalini Drug Distributor, Karimganj from your office?

(ii) If license issued, the number of the Drug license?

(iii) Proprietor of M/S Nalini Drug Distributor, Karimganj?

(iv) Whether Sumit Dhar is running the license on behalf of its proprietor from the basis of power of attorney/authority letter?

5. The reply to the same was in the following manner:

(1) Yes

(2) D/OL/KMJ/3837 & 3838 DTD 07/11/2019

(3) Anup Kanti Ghosh

(4) No.

6. The Case Diary contains another communication from the Inspector of Drugs, HQ, Office of the Drugs Controller, Assam, Hengrabari, dated 27.10.2021 wherein the following has been mentioned:

1. The proprietor of M/S Nalini Drugs Distributor Sh. Anip Kanti Ghosh has declared that he has not ordered the subject drug and has not signed in the order copy (copy enclosed) and his D/L No. is D/OL/KMJ/3837 & D/OL/KMJ/3838.

2. As per report of the Inspector of Drugs, Kam

Click Here to Read the rest of this document