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2018 Supreme(Mad) 2650
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Syed Musafar Sadiq and Ors. – Petitioners
Vs.
The Intelligence Officer, Directorate of Revenue Intelligence (DRI) – Respondent
Crl.R.C.No.1575 of 2017
Decided On : 25-06-2018
For the Petitioner: Mr. R.C. Paul Kanagaraj
For the Respondent: Mr. N.P. Kumar, Special Public Prosecutor
Headnote:
Criminal Procedure Code, 1973 - Section 167 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 2, 18, 19, 22, 24, 27A, 36, 67, 37, 8, 25A, 22, 23, 27, 28, 29 and 9A - Customs Act, 1962 – Sections 8, 108 and 135A - Contraband Tablets Are Manufactured - Investigation - Learned counsel for petitioners would submit that contraband tablets are manufactured by licensed manufacturer and tables are schedule h1 drug available in all medical shops - Tablets and pseudo ephedrine were not seized from possession of any of petitioners - Pseudo ephedrine is a controlled substance would fall under category period of investigation - Learned trial judge failed to see that tablets is calculated - As per table grams would fall under period of investigation days - respondent had filed charge sheet more specifically - Contention of petitioners is that special court could not have extended period of investigation in a single order and also could not have extended judicial custody of petitioner as a consequence thereof without seeking a fresh report of pp and procedure adopted by respondent was in violation of decision of honble supreme court and extension itself is bad in law - Held, It is also true that petitioners were remanded to judicial custody but complaint was filed by dri only beyond period of days and thereby indefeasible right to claim bail was accrued to petitioners/accused immediately after expiry - Honble apex court in case answered question whether accused who was entitled to be released on bail under proviso not having made an application when such right had accrued can exercise that right at a later stage of proceeding - Referring its earlier judgment through cbi it held that if an accused person exercises his right to be released on bail for failure of prosecution to file charge sheet within maximum time allowed by law he had an indefeasible right for bail - This court is of considered view that principle of law laid down by learned single judge of this honble court is squarely applicable to facts of instant case as in this case also contraband involved is ephedrine hydrochloride - It is also to be noted that petitioners were confined in prison without any progress of trial since honble supreme court seized similar issue involved in this case to a larger bench and same is now pending in criminal appeal - Petition Is Allowed.
The Petitioners preferred this Criminal Revision Petition against the order passed in Crl.M.P.No.1829 of 2017 dated 18.07.2017 by the learned II Additional Special Court under NDPS Act, Chennai, dismissing the application filed under Section 167 of Cr.P.C. for bail filed by in R.R.No.11 of 2016 in F.No.DRI/CZU/VIII/ 48/ENQ-1/INT-48/2016 on the file of the respondent.
2. The prosecution case is that based on secret information the respondent, on 26.11.2016 proceeded to National Sorting Hub Chennai, St.Thomas Mount Head Post Office Complex, Chennai 600016 and had seized an article covered under No.EU667761597 in a Carton Box blocked by Shri Tariq Ali Khan, C/o. Moses Toiler opposite to Saran Hospital, Barerilly, U.P. 243 001, addressed to Shri Syed Ali, 101, New Street, Mannady. The box found to contain 33 packets, each packet contained 5 pads and each pad contained 6 strips. The packets serialed as 33 and 33 were found to contain additional 5 and 4 strips respectively. Hence 5 x 6 x 10 x 33 = 9990 tablets of ALPRAZOLAM IP TRIKA I of 1 Mg Manufactured by Unichem Laboratories Sikkim. The officers had seized in the presence of witnesses under Mahazar. Further prosecution case is that on 28.11.2016 at M/s. Triway CFS, No.149, Ilayanchavadi, New Nappalayam, Ponneri High Road, Chennai had seized 23.900 kgs of “pseudo Ephedrine” in 48 polythene packages in a cargo covered under the shipping bill No.2418014 dated 24.11.2016 in the name of M.M.Exports concealed in 6 Bales. The officers drew mahazar in the presence of witnesses and in the presence of one V.Packiakumar a Freelance Freight Forwarder, later he was arranged as 43 in this case. The officers had issued summons to all the 3 petitioners on 29.11.2016 to appear before them on the same day at 7.00 hours. The statements under section 67 of NDPS Act were recorded from the Petitioners, later they were arrested and remanded to judicial custody.
3. The learned counsel for the Petitioners would submit that the contraband tablets are manufactured by licensed Manufacturer and the tables are schedule H1 Drug available in all medical shops. The tablets and Pseudo Ephedrine were not seized from the possession of any of the petitioners. Pseudo Ephedrine of 23.900 kgs is a controlled substance would fall under the category of 60 days period of investigation. The Learned Trial Judge failed to see that the 9900 tables of Alprozolam Tablets of 1 mg is calculated would come around 9.9 grams. As per table in NDPS Act above grams would fall under the period of investigation 60 days. The Respondent had filed the charge sheet after 60 days more specifically after 175 days. The contention of the Petitioners is that the Special Court could not have extended the period of investigation from 60 to 180 days "in a single order" and also could not have extended the judicial custody of the Petitioner as a consequence thereof without seeking a fresh report of the PP in terms of NDPS Act and the procedure adopted by the Respondent was in violation of the decision of the Hon’ble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 and the extension itself is bad in law.
4. The learned counsel for the Petitioners also referred to the judgment of the Hon’ble Apex Court in Sayed Mohd. Ahmad Kazmi vs. State reported in (2012) 12 SCC 1 wherein the Hon'ble Apex Court had granted statutory bail to an accused on default as a matter of right under UAPA Act even after filing of the Final Report. The Learned Trial Judge had wrongly decided that Section 37 of NDPS Act would attract, as the quantity of 9.900 tables if calculated and weighted with inactive ingredients would fall under commercial quantity. The Learned Trial Judge failed to appreciate the judgment of this Court in Crl.R.C.No. 1421 of 2016. In any event on merits, the petitioners are entitled bail under section 167(2) of Cr.P.C as complaint was not filed in time.
5. The learned counsel for the petitioners relied the following Jud
