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2018 Supreme(Raj) 286
IN THE HIGH COURT OF RAJASTHAN
SANDEEP MEHTA, J.
ATUL DILIP MHATRE — Appellant
Vs.
UNION OF INDIA DIRECTORATE OF REVENUE INTELLIGENCE — Respondent
Criminal Misc. Bail No. 9930 of 2017
Decided on : 15-03-2018
For the Appellant :Mr. Vikas Balia with Mr. Rajendra Shahasane, Mr. Salman Agha, Advocates,
For the Respondent: Mr. B.P. Bohra with Mr. Lalmani Sharma, adv
A person who is charged with an offence under Section 9(A) read with 25(A) of the NDPS Act is not subject to the embargo against bail in Section 37A of the Act if there is no evidence to suggest that the person was involved in the illegal manufacture and trade of Methaqualone.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37A - SECTION 9(A) READ WITH 25(A) - SECTION 25(A) - SECTION 29 - SECTION 37 - SECTION 67 - SECTION 64(A) - SECTION 65(A) - SECTION 66 - SECTION 67 - SECTION 8 - SECTION 8(A) - SECTION 22(C) - SECTION 23(C) - SECTION 25 - SECTION 27(A) - SECTION 29 - RULES 53(A) - RULES 64(A) - RULES 65(A) - RULES 66 - RULES 67 - ABORTIVE ATTEMPT TO MANUFACTURE ACETIC ANHYDRIDE - NO CONTRABAND RECOVERED - BAIL GRANTED.
Fact of the Case:
The petitioner, a chemical engineer, was engaged by the principal accused, Subhash Dudani, to set up an Acetic Anhydride manufacturing plant in 2009. The attempt failed, and the petitioner had no further dealings with Dudani until 2013, when they entered into a partnership agreement that was never acted upon. In 2016, the petitioner borrowed Rs. 10 lakhs from Dudani, which he repaid a month later. The petitioner was arrested in connection with the seizure of 23320 kgs of Methaqualone tablets from Dudani's godown. He was charged with offences under Sections 9(A) read with 25(A) and 29 of the NDPS Act.
Finding of the Court:
The court found that the petitioner was not in possession of any contraband and that his attempt to manufacture Acetic Anhydride was abortive. The court also found that there was no evidence to suggest that the petitioner was aware of Dudani's illegal activities.
Issues: Whether the petitioner was entitled to bail under Section 37A of the NDPS Act.
Ratio Decidendi: The court held that the petitioner was entitled to bail because the offence under Section 9(A) read with 25(A) of the NDPS Act was not covered by the embargo against bail in Section 37A. The court also found that there was no evidence to suggest that the petitioner was involved in the illegal manufacture and trade of Methaqualone.
Final Decision: The court allowed the bail application and ordered the release of the petitioner on bail.
Sandeep Mehta, J.
The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in relation to F.I.R. No. DRI/DZU/JRU/19/INT-4/2016 DATED 26.4.2017, for the offences under Sections 9(A), 22(C), 23(C), 25, 25(A), 27(A), 29 read with 2, 8, 8(A) of NDPS Act and Rules 53(A), 64(A), 65(A), 66, 67 of NDPS Rules.
2. Facts in brief are that on 28.10.2016, the Officers of DRI, on receiving a prior information, conducted a raid at a godown No. G-1, 347 located in the Bhamashah Industrial Area, Kalwadwas, Udaipur, allegedly owned, controlled and operated by Subhash Dudani, Ravi Dudani and Nirmal Dudani. On conducting an extensive search of the premises, a huge bulk of Methaqualone tablets weighing about 23320 kgs. was recovered. The contraband psychotropic tablets were seized. Thereafter, search commenced for the three godown owners named above. Their statements were recorded under Section 67 of the N.D.P.S. Act and it came to light from these statements to be specific, that of Subhash Dudani, that the petitioner had, at a particular point of time provided the technical know how and had aided, Shri Subhash Dudani in commissioning an Acetic Anhydride (an essential chemical required during manufacturing process of Methaqualone) manufacturing plant but the said endeavour did not fructify. The petitioner too was interrogated under Section 67 of the N.D.P.S. Act and was arrested on 3.11.2016. Since then, he is in custody. The D.R.I. conducted thorough investigation and finally, a complaint came to be filed against the principal accused Subhash Dudani and his collaborators for the offences under Sections 8/22/25 and 29 of the N.D.P.S. Act. As against the present petitioner, charge-sheet was filed for the offences under Sections 9(A) read with 25(A) and 29 of the N.D.P.S. Act with a conclusion that he provided technical support for commissioning Acetic Anhydride plant to Subhash Dudani knowing very well that the chemical could be illegally used for production of Methaqualone. The petitioner moved a bail application under Section 439 Cr.P.C. in the court of the learned Special Judge, N.D.P.S. Act Cases, Udaipur which was rejected on 1.7.2017 whereupon, the instant application for bail has been filed in this Court.
3. Shri Vikas Balia, learned counsel representing the petitioner, placed reliance on the Hon'ble Supreme Court decision in the case of Nikesh Tarachand Shah v. Union of India & Anr. reported in 2017 SCC Online SC 1355 and urged that the restrictions contained in Section 37 of the N.D.P.S. Act do not operate against the present petitioner in his endeavour to seek bail because no incriminating recovery whatsoever was effected at his instance or from his possession. He urged that the petitioner, a chemical engineer by profession, rightfully, lawfully and without any mensrea provided the technical assistance and attempted commissioning of Acetic Anhydride plant in the premises of Subhash Dudani way-back in the year 2009. However, the petitioner failed in his endeavour. Thereafter, Subhash Dudani procured a manufacturing plant of Acetic Anhydride commissioned through M/s. Narain Lala of Gujarat. He urged that, neither from the statements of Subhash Dudani and his collaborators or that of the petitioner recorded under Section 67 of the N.D.P.S. Act does it emerge that the petitioner was in any case aware that the Acetic Anhydride manufacturing plant for the commissioning whereof he was engaged, would be used for illegal purposes. He urged that the petitioner came in touch with Subhash Dudani in the month of June 2007 and did the job of epoxy quoting etc. in his industrial unit named Sun Opticals Limited for a fee of Rs. 7 lacs. In the year 2008, Subhash Dudani took the petitioner's advise for setting up an alcohol/alcohol derivative plant which did not fructify. Later on, the petitioner's professional expertise was sought for setting up of an Acetic Anhydride plant. The petitioner
