IMPORTANT POINT
Bail application – Bail can be granted in absence of any psychotropic substance found in conscious possession of accused.

ORDER :

HIMA KOHLI J.

1. By this common order, we propose to dispose of two Petitions for Special Leave to Appeal filed against the common judgment and order dated 15th July, 2021 passed by the learned Single Judge of the High Court of Madras. SLP(Crl) No. 5703/2021 has been filed by Bharat Chaudhary [A-4] who is aggrieved by the reversal of the bail order dated 02nd November, 2020 granted in his favour by the learned Special Judge, EC & NDPS Cases, Chennai whereas Raja Chandrasekharan [A-1] has challenged the dismissal of the bail application filed by him under Section 439 of the Criminal Procedure Code.

2. The case set up by the prosecution is that on specific information received by the Directorate of Revenue Intelligence, Chennai Zonal Unit¹[For short ‘the DRI’], Officers of DRI had seized about 1,37,665 tablets of different types collectively weighing 90Kgs. (approx.) described as psychotropic substances from the following four locations, all situated in Chennai:

(i) Office of M/s. Aviation Star Express, Ekkattuthangal, a Franchisee of M/s DHL Express India Private Limited;

(ii) 2 Destination, a Franchisee of M/s S.T. Courier;

(iii) residence of Raja Chandrasekharan [A-1]; and

(iv) office premises of M/s. DHL Express India Private Limited.

3. Believing the tablets seized from the aforesaid premises to be composed of psychotropic substances covered under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985²[For short ‘the NDPS Act’] read with the Customs Act, the DRI conducted investigation and summoned M.V. Srinivasan [A-2] – Director of M/s 2 Destination and Propreitor of M/s S.T. Courier; Raja Chandrasekharan [A-1] – Proprietor of Ascure Pure Herbals; M. Ashok Kumar [A-3] -employee of A-1 and after recording their statements, booked them for the offences under Section 8(c) punishable under Sections 22(c), 25, 28 and 29 of the NDPS Act and arrested them on 18th October, 2019. Based on the statements made by A-1 and A-3 that they had colluded with suppliers in Nagpur and Rajasthan and procured tablets composed of psychotrophic substances for exporting and sending through courier service to customers in USA under the guise of herbal tablets, on orders received from Bharat Chaudhary [A-4], officers of DRI, Jaipur Unit conducted a search at his residence at Jaipur on 16th March, 2020 and seized some incriminating material. Thereafter, he was arrested on 17th March, 2020 for contravening the provisions of Section 8(c) punishable under Sections 22(c), 24 and 29 of the NDPS Act. On being granted transit bail by the learned Chief Metropolitan Magistrate, Jaipur, A-4 was produced before the NDPS Court at Chennai on 19th March, 2020 and remanded on the same day.

4. Vide order dated 2nd November, 2020, the learned Special Judge, EC & NDPS Cases, Chennai granted bail to Bharat Chaudhary[A-4]. The reasons that weighed with the said Court for granting bail to A-4 were that :-

(i) he was not found to be in possession of any psychotropic substance and no contraband was recovered from his residence or office during the search;

(ii) the electronic gagets/devices that were seized from the office of A-4 had been sent for obtaining a scientific report which was still awaited;

(iii) while 1,37,665 tablets were seized from four different locations in Chennai between 15th October, 2019 and 18th October, 2019, officers of the DRI had gone to Jaipur to arrest A-4 after five months, solely on the basis of the statement made by A-1 under Section 67 of the NDPS Act;

(iv) there was no live link established against A-4, a resident of Jaipur of having connived with the other accused, A-1 to A-3 who were all residing in Chennai and arrested from there.

(v) the test reports in respect of the seized material were awaited and it was not established whether the tablets which, as per the accused were sexual enhancement tablets, would qualify either as a narcotic or psychotrophic substance so as to fall within the ambit of the NDPS Act;

(vi) The first