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* IN THE HIGH COURT OF DELHI AT NEW DELHI BEFORE HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV + CRIMINAL M.C. NO. 4280 of 2011 Between:-

1. NAFE SINGH, SON OF SHRI DHARAM SINGH, R/O 568/26, AARYA NAGAR, SONEPAT, HARYANA .....PETITIONER NO.1

2. RAJESH SHARMA, SON OF SHRI KULDEEP SHARMA, R/O MB-85, SHAKARPUR, DELHI-92 .....PETITIONER NO.2

3. AMIT KOHLI, SON OF SHRI TlLAK RAJ KOHLI, E-15/22, KRISHAN NAGAR, DELHI-92 .....PETITIONER NO.3

4. DIWAKAR GUPTA, SON OF SHRI RAM ASHREY, -

61, RAMPURI, KALKAJI, DELHI-19 .....PETITIONER NO.4 (Through: Shri K.T.S Tulsi and Shri N. Hariharan Senior Advocates with Shri Amit Anand Tiwari, Advocate.)

AND NARCOTICS CONTROL BUREAU ..... RESPONDENT (Through: Shri Subhash Bansal, Senior Advocate along with Shri Shashwat Bansal, Advocate.)

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J U D G M E N T

1. This petition under Section 482 of the Cr.P.C. seeks to assail impugned orders dated 10.05.2011 and 26.07.2011 passed by Ld. Special Judge (NDPS), Patiala House, New Delhi, in Sessions case No. 129/8/08, whereby, the learned Special Judge has rejected the submissions of the petitioners for their discharge and proceeded to frame charges against them under Sections 22/23 read with Sections 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act).

2. The facts of the case are that on 05.05.2008, on receiving information by Narcotics Central Bureau (NCB) to the effect that a group of persons are involved in the illicit smuggling of prescription drugs, listed under the Schedule of the NDPS Act, search authorization under Section 41(2) of the NDPS Act was issued. At around 4:20 PM, a team of respondent/NCB started its operation and at 4:30 PM, NCB intercepted two persons, namely, Rajesh Sharma and Nafe Singh at Indraprasth Post Office, New Delhi. A bag was seized containing therein, 100 envelopes where 10,260 tablets of 7Diazepam8, 7Alprazolam8 and 7Phenobarbitone8 (Phenobarbital) were found. Upon disclosure, during the investigation, the identity of other accused persons was ascertained and raids were conducted at the office and residence of other co-accused, where contraband was seized. All the accused were detained, except one, namely, Ashish Kumar, who is reportedly untraceable. On 06.05.2008, voluntary statements of all accused persons were recorded under Section 67 of the NDPS Act. The petitioners were produced before the learned Special Judge (NDPS) and were sent to judicial custody. Samples of seized tablets were sent to Central Forensic Science Laboratory, Hyderabad (CFSL). No adulteration or misbranding was found. On

01.11.2008, respondent/NCB preferred a complaint before the Special Judge against the petitioners for offences punishable under sections 21/22/23/24/27A & 29 of the NDPS Act. The petitioners were granted bail vide order dated 24.12.2008 and 07.01.2009. Between 25.02.2009 to 13.03.2009, three different detention orders were passed against the petitioners under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as PITNDPS). Writ petitions were preferred by the petitioners against the orders of detention.

3. On 06.05.2009, the Division Bench of this court allowed writ petitions being W.P.(CRL) No.326/2009 and W.P.(CRL) No.384/2009, setting aside the orders of detention, holding that export of drugs listed in the Schedule of NDPS Act is neither prohibited nor punishable under the NDPS Act or Rules. This court held that the prohibition only extends to the Psychotropic Substances mentioned in Schedule- I to the NDPS Rules and not to all Psychotropic Substances mentioned in the Schedule to the NDPS Act. The other writ petitions were also allowed on the same line. The SLP preferred by the NCB against the orders passed by t