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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

AND

NARCOTICS CONTROL BUREAU ..... RESPONDENT

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Pronounced on

:

10.10.2022

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2022:DHC:4131

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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

‗Diazepam‘, ‗Alprazolam‘ and ‗Phenobarbitone‘ (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

2022:DHC:4131

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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