Vibhor Rana vs Union Of India

Suvra Ghosh, J

The petitioners in both the applications are aggrieved by the order dated March 11, 2024 passed by the Learned Additional Sessions Judge, 4th Court, Malda cum Learned Special Court under the NDPS Act in connection with NDPS case no. 44 of 2021 turning down the prayer for discharge of the petitioners. Vibhor Rana, the petitioner in the CRR 1620 of 2024, shall hereinafter be referred to as the first petitioner and Gopal Kumar @ Gopal Singh @ Gopal, the petitioner in 1621 of 2024 shall hereinafter be referred to as the second petitioner.

On May 22, 2021 Apurba Mondal and Dipak Mondal were intercepted by the opposite party at Malda and 1350 bottles of phensedyl cough syrup bearing batch no. PHB21071 manufactured by M/s. Abbott Health Care Private Limited of Mumbai were recovered from their possession. Proceeding was initiated under Section 21(c)/28/29 of the NDPS Act against them. In response to notice issued upon M/s. Abbott under Section 67 of the NDPS Act, the company informed that 58500 bottles of phensedyl bearing batch no. PHB21071 were manufactured by it and sold to G.R. Trading Company, the proprietary concern of the first petitioner. In reply to notice issued upon M/s. G.R. Trading Company, it furnished the details of the purchase and subsequent sale of the same to 12 medicine shops in Uttar Pradesh. Notices were also sent to Gopal Medicos, the proprietary concern of the second petitioner and in response to the same, the second petitioner furnished the details of the 12 medicine shops from which he purchased those bottles of phensedyl. Prosecution complaint was filed against Apurba Mondal and Dipak Mondal on November 18, 2021. The petitioners were named in the supplementary prosecution complaint filed on March 23, 2022.

It is alleged that in course of investigation, it was found that M/s. Abbott manufactured the seized 1350 bottles of phensedyl and sent the same to the company of the first petitioner. The first petitioner sold the same to 12 medicine shops situated at Roorkee, Haridwar. The opposite party alleged that on conducting physical verification, it was found that the 12 medicine shops did not exist. It was further alleged that the bottles were sold to the 12 medicine shops on a single day and the 12 shops sold the entire consignment to the company of the second petitioner on the same day. One Shivani Singh, wife of the second petitioner disclosed before the opposite party that the second petitioner was the driver of the first petitioner. The first petitioner was arrested in the meantime and the NCB submitted inspection report before the learned Special Court which indicated that the Inspector of Drugs, Roorkee, Haridwar, Food Safety and Drugs Administration, Haridwar informed the NCB by a letter issued on September 12, 2022 that the 12 medicine shops and Gopal Medicos (second petitioner’s company) possessed valid drug licence and were active except one namely Govind Pharma whose proprietor Govind Kumar had expired. Punjab National Bank also verified the transaction details in connection with M/s. G.R. Trading and found the transactions to be genuine. The second petitioner was granted pre-arrest bail on April 13, 2023 by an Hon’ble Division Bench of this Court.

Pursuant to leave granted by this Court vide order dated March 6, 2024 in CRR 2385 of 2023 and CRR 2427 of 2023, the petitioners filed discharge applications before the learned Special Court which was turned down by the order impugned.

Learned counsels for the petitioners have submitted that Apurba Mondal and Dipak Mondal have no valid drug licence to deal in 1350 bottles of phensedyl cough syrup that were seized from them. Their statement revealed that the said bottles were manufactured by M/s. Abbott who confirmed the same and stated that the bottles were sold to the first petitioner’s company. The said company, in turn, sold the bottles to 12 medicine shops at Roorkee which had valid licence and were in existence. Therefore it cannot be said that the bottles were sold by the first petitioner to non-existent entities.

Both the petitioners are distributors of drugs having valid drug licence issued under the Drugs and Cosmetics Act. Manufacture of 1350 bottles of phensedyl was found to be in accordance with law and neither M/s. Abbott nor the 12 medicine shops have been arraigned as accused in this case.

The only incriminating material against the petitioners in the supplementary complaint was non-existence of the 12 medicine shops which were subsequently found to be in existence and having valid drug licence. Therefore there is no prosecutable evidence against the petitioners.

Learned counsels have submitted that a prosecution complaint being akin to a police report under Section 173 of the Code of Criminal Procedure needs to satisfy the test of “sufficient evidence or reasonable ground”. The supplementary complaint fails to meet the said criteria against the petitioners.

Statement of the co-accused recorded under Section 67 of the NDPS Act has no evidentiary value. Admittedly no contraband was seized from the possession of the petitioners who have also not been named by the co-accused in their statement under Section 67 of the Act.

There being no prohibition on single day transaction in the licence issued in favour of the petitioners, the petitioners cannot be implicated merely on the ground that the entire transaction took place on a single day.

The second petitioner having a valid drug licence, his being a driver of the first petitioner or otherwise as allegedly stated by his wife Shivani Singh in her statement recorded under Section 67 of the Act, is inconsequential.

Learned counsel has taken this Court to Section 8 of the Act which demonstrates that production, manufacture, possession, sale, purchase, transportation, etc., of any narcotic drug or psychotropic substance for the purpose of medical or scientific purposes and in the manner and to the extent provided under the Act is permissible. Since M/s. Abbott and the two companies Ashish Traders and Babita Medical Agency to whom the second petitioner sold the phensedyl bottles were not arraigned as accused in the complaints, the petitioners being wholesalers and distributors of drugs, cosmetics and medicines and possessing drug licence cannot be implicated and no adverse presumption can be drawn against them. No violation of Section 26 of the Act has been alleged in so far as the petitioners are concerned. Since no recovery was made from the petitioners, there can no presumption of culpable mental state under Section 35 of the Act.

Learned counsel has placed reliance on the authorities in Noor Aga v/s. State of Punjab & Anr. reported in (2008) 16 Supreme Court Cases 417, Baldev Singh v/s. State of Haryana reported in (2015) 17 Supreme Court Cases 554, Naresh Kumar Alias Nitu v/s. State of Himachal Pradesh reported in (2017) 15 Supreme Court Cases 684, Toofan Singh v/s. State of Tamil Nadu reported in (2021) 4 Supreme Court Cases 1, Union of India v/s. Prafulla Kumar Samal & Anr. reported in (1979) 3 Supreme Court Cases 4, and M/s. Karnataka Emta Coal Mines Limited And Another v/s. Central Bureau of Investigation reported in (2024) INSC 623 in support of his contention.

Speaking for the opposite party/NCB and vehemently opposing the contention of the petitioners, learned counsel has submitted that commercial quantity of psychotropic substance (phensedyl) belonging to a particular batch being PHB21071 (1350 bottles) were recovered from Apurba Mondal and Dipak Mondal from Malda which shares its border with Bangladesh. The entire facts evidently indicate that the crime involved is grave as there was a clear effort of smuggling/illegal transhipment of psychotropic substance from one country to another.

On May 15, 2021 Abbott delivered 58500 bottles of phensedyl bearing batch no. PHB21071 to G.R. Trading who in turn, despatched the entire consignment to 12 medical firms who had drug licence but did not exist physically. All these 12 firms placed their orders to G.R. Trading Company on May 14, 2021 and on receipt of the consignment on May 15, 2021 sent the entire batch to Gopal Medicos whose proprietor Gopal Kumar is a driver of the first petitioner as stated by Gopal’s wife. On the same day, Gopal Medicos received 58500 bottles and distributed the same to two medical firms Ashish Traders and Babita Medical Agency. These firms had placed their orders on May 12, and May 13, 2021. Thereafter 1350 bottles were recovered at the Indo-Bangladesh border from Apurba Mondal and Dipak Mondal on May 22, 2021. These circumstances linked together establish a grave suspicion against the petitioners as well as a presumption of their culpable mental state as envisaged under Section 35 of the NDPS Act which needs to be rebutted by them during trial.

Licence granted to the petitioners permits legal distribution of psychotropic substance whereas in the instant case there has been illegal cross border transportation of the same.

Learned counsel has further submitted that the entire transaction has been done on a single day which was only a paper transaction, all the companies mysteriously demanding the same quantity of the product. Despite possessing drug licence, the 12 entities were not found to be existing physically. The two medical firms Ashish Traders and Babita Medical Agency placed their orders before Gopal Medicos even before the consignment was despatched by Abbott to G.R. Trading. The aforesaid facts and circumstances establish a clear nexus of the petitioners with the crime and the discharge applications filed by the petitioners were rightly refused by the learned trial Court.

Since Abbott is a valid and legal manufacturing company who handed over the consignment to G. R. Trading, it cannot be held responsible for the alleged offence. The crime originates from the mode and manner in which G.R. Trading diverted commercial quantity of psychotropic substances for illegal cross border smuggling. Also, since the 12 medical shops are merely operational on paper and have no physical existence, they have not been made accused in this case. Negative equality also does not find place in criminal jurisprudence. The petitioners, taking advantage of their so called valid licence have surreptiously engaged in cross border smuggling of psychotropic substance and attempted to create a paper trail of change of hands on the surface, such facts being exposed in course of investigation.

I have considered the rival contention of the parties and material on record.

At the outset, it shall be useful to set out section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the NDPS Act)

“Section 8. Prohibition of certain operations.- No person shall - (c)Produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:”

1350 bottles of phensedyl cough syrup of batch no. PHB21071 were recovered from Apurba Mondal and Dipak Mondal who were intercepted by the opposite party at Malda on May 22, 2021. It is not in dispute that the said bottles were manufactured by M/s. Abbott Health Care Private Limited of Mumbai who had valid licence for the same. It is further admitted that Abbott sold out 58500 bottles to the first petitioner’s company G.R. Trading Company who in turn sold out the same to 12 medicine shops in Uttar Pradesh. The said medicine shops sold out the bottles to the second petitioner’s company Gopal Medicos who sold the same to two companies Ashish Traders and Babita Medical Agency. Out of the said bottles, 1350 bottles were found in possession of Apurba Mondal and Dipak Mondal who were unable to produce any valid bill/invoice/licence in respect of such possession. Prosecution complaint was filed against them by the NCB on November 18, 2021.

In the supplementary prosecution complaint filed by the NCB against the petitioners and three others on March 23, 2022, it is alleged that M/s. G. R. Trading Company purchased 58500 bottles of phensedyl from Abbott and sold the same to 12 different medical shops which were non-existent. Also, the second petitioner is alleged to have purchased the bottles from the 12 shops and sold the same to Ashish Traders and Babita Medical Agency. The petitioners have been accused of being actively involved in diversion of phensedyl for monetary benefits.

During investigation, the drug licence issued in favour of 12 shops was verified and in a report submitted on September 12, 2022, the Inspector, drugs, Roorkee, District Haridwar stated that upon physical verification of the shops it was found that all the shops were active and had valid drug licence for sale, purchase, exhibit for sale and distribution, etc., of drugs. Only one of the shops M/s. Govind Pharma was found closed due to demise of the owner/proprietor Govind Kumar. Therefore it is evident that all the companies being Abbott, G.R. Trading Company, 12 medical shops and Gopal Medicos had/have valid drug licences and have not violated section 8 (c) of the NDPS Act. The bank transactions of M/s. G.R. Trading were verified by Punjab National Bank and found to be genuine.

It is pertinent to mention that the manufacturer Abbott, the 12 medical shops or Ashish Traders and Babita Medical Agency have not been implicated or sent up for trial. Admittedly, there was no recovery from the possession of the petitioners. Even if it is held that Apurba Mondal and Dipak Mondal had no valid drug licence to deal in 1350 bottles of phensedyl cough syrup, no adverse inference can be drawn against the petitioners who possess valid drug licence for purchase and sale of the product.

Learned counsel for the opposite party has submitted that though the licenses issued in favour of the petitioners permit legal distribution of psychotropic substance, there has been illegal transportation/transhipment of psychotropic substance in the cross border region. Much emphasis has been laid on the fact that the entire transaction was made on a single day and the 12 medical shops demanded the same quantity of the product from the first petitioner’s company. Also, the wife of the petitioner has stated in her statement recorded under section 67 of the NDPS Act that the second petitioner is the driver of the first petitioner. I am afraid these facts do not raise any suspicion towards the legality of the transaction since the petitioners have a valid licence for the same. Also, it is trite law that suspicion, however high, cannot take the place of legal evidence.

The Hon’ble Supreme Court, in the authority in Noor Aga (supra), has dealt with section 35 and 54 of the NDPS Act and has observed that presumption with regard to culpable mental state of the accused would operate only after the initial burden existing upon the prosecution is satisfied after which the burden would shift on the accused. The Hon’ble Court has held that whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt”, it is “preponderance of probability” on the accused. To bring within its purview the requirements of section 54 of the Act, element of possession of the contraband by the accused is essential so as to shift the burden on the accused. Echoing the said observation, the authority in Baldev Singh (supra) envisages that once physical possession of the contraband by the accused has been proved, section 35 of the NDPS Act comes into play and the burden shifts on the accused to prove that he was not in conscious possession of the contraband.

Learned counsels for the petitioners have drawn the attention of the Court to a letter issued by the Drugs Controller General, (India) Director General of Health Services to the Associated Chambers of Commerce and Industry of India on March 1, 2000 which demonstrates that preparations containing codein phosphate 10 mg as one of the ingredients do not fall under the provisions of the NDPS Act but fall under schedule H of the Drugs and Cosmetic Rules. This Court does not wish to comment on this issue since nothing was admittedly recovered from the petitioners and the petitioners were found to have purchased and sold the products which were admittedly manufactured by Abbott, legality of the said manufacture or transaction initiated by Abbott not being under challenge.

By the order impugned, the learned trial Court has turned down the prayer of the petitioners under Section 227 of the Code of Criminal Procedure with an observation that the companies owned by the petitioners were knowingly involved in illegal transaction of contraband. The order is silent as to the material on the anvil of which such conclusion was drawn.

No nexus of the petitioners with the offence alleged having been prima facie established in course of investigation, this Court is of the view that allowing the proceeding to continue against the petitioners shall be an abuse of the process of the Court. The material available on record is far from sufficient to convict the petitioners for the offence alleged and the petitioners should not be burdened with the ordeal of trial which shall lead nowhere.

In the said backdrop, the revisional applications being CRR 1620 of 2024 and CRR 1621 of 2024 are allowed.

The order impugned dated March 11, 2024 passed by the Learned Additional Sessions Judge, 4th Court, Malda cum Learned Special Court under the NDPS Act, Malda in NDPS case no. 44 of 2021 in so far as the prayer of the petitioners under Section 227 of the Code of Criminal Procedure is rejected be quashed/set aside.

The applications filed by the petitioners under Section 227 of the Code of Criminal Procedure are allowed.

The petitioners be set at liberty at once and discharged from their bail bonds.

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