Shri Jinnuri Dorainaidu v. The State Of A.P.,

THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL PETITION No.16957 OF 2016 ORDER:

This criminal petition, under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), is filed to enlarge the petitioner/A.5 on bail in F.No.DRI/HZU/VRU/48/ ENQ-3(INT-2)/2016 on the file of Directorate of Revenue Intelligence, Regional Unit, Visakhapatnam, Andhra Pradesh, who allegedly committed the offences punishable under Sections 22, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act').

On 05.10.2016 the Director of Revenue Intelligence, Regional Unit, Visakhapatnam, on credible information, inspected factory premises of M/s.Matees Laboratories Pvt. Ltd., Plot No.C-59, Jawaharlal Nehru Pharma City, Thanam (V), Parawada, Visakhapatnam (D), Andhra Pradesh, and residential premises of Sri Y.Sai Krishna, Flat No.302, Sai Maithrivanam Apartments, Kurmannapalem, Visakhapatnam. During search of the factory premises, A.

Lakshmi Narayana, Director of M/s.Matees Laboratories Pvt. Ltd., informed that his unit is engaged in the manufacture of intermediates, on job work basis for various companies, and that Alprazolam is not being manufactured in the factory premises. However, the said Lakshmi Narayana informed the officers that one person by name Sai Krishna has brought a person by name Chand Basha/A.1 and requested to provide one manufacturing line for manufacture of a product code named STAR and that they, after receiving the produce process, have

- 2 - allowed the same to be manufactured in the factory premises. He further informed that A.1, along with his associates presently available in the factor premises, is supervising the production of the product code named STAR. The said A.Lakshmi Narayana led the officers to the production Block-I and he introduced the officers to A.1 and his associates. On seeing the officers of DRI, A.1 started to panic. The officers then questioned A.1, whether he was in the process of manufacturing Alprazolam in the factory premises. A.1 initially denied manufacturing Alprazolam, but later admitted that he was using the equipment available in the premises of M/s.Matees Laboratories to manufacture Alprazolam and presently Alprazolam is available in the Drier of Production Block-I.

He further admitted that Alprazolam is being manufactured under the guise of product code named STAR. The officers then proceeded to the Drier available in the Production Block-I along with A.1, who showed the officers the Drier which was marked as TD/103 and informed the officers that Alprazolam is being dried in the drier TD/103, the officers then turned off the Drier in the presence of the said Lakshmi Narayana and A.1 and opened the door of the Drier and found trays stacked inside the drying machine and in each of the trays, the officers found certain material which was slightly brownish in colour and was in the form of lumps/ flakes. When A.1 was asked to remove the trays from the drying machine to examine, he informed the officers that as the trays are hot, they have to wait for some time till the trays and chemical get cooled. After an hour, A.1 asked Santhosh Reddy/A.3 and J.Dorayya Naidu/ A.5, who were his associates, to

- 3 - remove the trays from the drying machine with the help of rubber hand gloves. There were 46 steel trays in all in the said drying machine and in each of the tray, slightly brownish coloured lumps/ flakes were found. On the request of the officers, the said Lakshmi Narayana got placed a polythene sheet, on the floor and deposited the material available in each of the 46 steel trays on it. Thereafter, the officers got the said material to be mixed into a homogenous mixture and questioned A.3 and A.5 as to the nature of the material removed from the drying machine. Both of them separately admitted that the said material was Alprazolam, the total quantity of Alprazolam found in three drums is about 100.895 kgs., which is worth Rs.2,52,23,750/- approximately, in the grey market @ Rs.2.5 lakhs per kilogram.

They also found certain material which worth lakhs of rupees. The officers lifted samples besides seizure of contra band and Cars bearing Nos. AP 09 BA 6030 and AP 28 CD 4202 which were parked in the premises of factory, in the presence of the petitioner including the Director of the Company, Lakshmi Narayana, under the cover of panchanama drafted on 05.10.2016 from 9.30 p.m. onwards and obtained signatures of persons, who were present. The petitioner also signed the panchanama, and put the date underneath his signature and wrote his name as 'JDN'. Thus, the contraband seized from the premises and the substance being manufactured by A.1 and two others, is psychotropic substance under the NDPS Act and thereby on the strength of the panchanama, the crime was registered against the petitioner and others.

- 4 - The present petition is filed on the ground that the petitioner was only a coolie or labourer engaged on daily wage basis, to work in the factory and not connected with manufacturing process of Alprazolam in the factory premises, thereby he did not indulge any offence much less the offences punishable under Sections 22, 28 and 29 of the NDPS Act and prayed to enlarge the petitioner on bail.

The Special Public Prosecutor appearing for the respondent placed reliance on the Judgment of the Apex Court in STATE OF MADHYA PRADESH v. KAJAD1 and contend that a person accused of an offence punishable for a term of imprisonment of five years or more, shall generally be not released on bail in view of bar under Section 37 of the NDPS Act and prayed to dismiss the criminal petition.

As seen from the material on record, more particularly, the panchanama dated 05.10.2016 the petitioner was readily available in the premises at the manufacturing process, and he along with Lakshmi Narayana led the officers to Block No.1 i.e. manufacturing unit, and they removed trays from drier and placed the same before the officers, signed on the panchanama, acknowledging the conduct of search of the premises in his presence, putting date underneath of his signature. But, taking advantage of the Arrest Memo issued by the officials on 06.10.2016, it is contended that the reason for issuing memo for arrest of the petitioner is merely because he was present in the premises at the manufacturing work at the time of incident. Though he was present at the 1 AIR 2001 SC 3317

- 5 - manufacturing unit at the time of seizure, he was not arrested, even according to the panchanama. The officers after satisfying themselves that the petitioner indulged in the activities of manufacturing Alprazolam issued arrest memo. But mere arrest of the petitioner one day after conducting the search is not sufficient to disbelieve his presence at the time of conducting search and seizure of Alprazolam from the premises of the factory. Therefore, on the ground of issue of arrest Memo, on 06.10.2016 i.e. one day after search and seizure, is not a ground to believe that the petitioner was not present at the time of conducting search. On the other hand, panchanama, which is the basis for launching the prosecution against the petitioner and others clearly disclosed that the search was conducted in the presence of the petitioner on 05.

10.2016 itself. Therefore, the contention of the petitioner that he was not present at the time of conducting search and seizure of contraband is unbelievable. Apart from that, the quantity of psychotropic substance found in the factory is commercial quantity and less than 5 grams is not commercial quantity. But, here above 100 kgs. of Alprazolam was found and seized by the officials of DRI. Therefore, it is clear the same is commercial quantity as per the Schedule under the NDPS Act. In such a case, the petitioner is not entitled to claim bail as a matter of right in view of interdict contained under Section 37 of the Act. Even in STATE OF MADHYA PRADESH v.

KAJAD (1supra), the Apex Court specifically held that the purpose for which the NDPS Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme.

- 6 - 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail.

It is further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 of the NDPS Act are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for. Thus, in view of the principle laid down by the Apex Court in the Judgment referred to supra, the court is bound to record its satisfaction that the petitioner did not commit any offence, prima facie, to grant bail under Sections 437 and 439 of Cr.P.C. Thus, recording the satisfaction is sine qua non to grant bail in view of interdict under Section 37 of the NDPS Act. In STATE OF UTTARANCHAL VS. RAJESH KUMAR GUPTA2, and UNION OF INDIA v.

RATTAN MALLIK @ HABUL3 the Apex Court specifically held that recording of satisfaction that accused is not guilty of offence and that he is not likely to commit any offence while on bail is sine qua non for granting bail.

- 7 - Therefore, in the present case the very presence of the petitioner is not doubtful in view of signing on the panchanama dated 06.10.2016 acknowledging conduct of search and seizure in his presence and seizure of more than 100 kgs., of Alprazolam which is psychotropic substance worth more than Rs.2.00 crores. In such a case, onus of proof is on the petitioner to prove that he is not concerned with the manufacture of Alprazolam in view of Sections 35 and 54 of the NDPS Act, which imposes reverse burden on the petitioner. Sections 35 and 54 give rise to culpable mental state on the part of the accused as also placed burden of proof in this behalf on the accused vide judgment of the Apex Court in NOOR AGA v. STATE OF PUNJAB4.

Thus the material on record clearly establishes his presence while manufacturing Alprazolam in the factory premises and he was assisting to Chand Basha, who is one of the accused. Therefore, manufacturing, possessing, sell, etc., of narcotic drug or psychotropic substance is an offence in view of Section 8( c ) of the NDPS Act, unless he produced any authorization or licence to possess such Alprazolam, which is a psychotropic substance, in huge quantity, i.e., more than 100 Kgs. In those circumstances, it is for the petitioner to prove that he does not know the manufacture of such psychotropic substance and he was only labourer in view of Sections 35 and 54 of the NDPS Act, but such burden can be discharged only during trial, not at this stage. Therefore, I find material against the petitioner that he also participated in manufacturing of Alprazolam, which is a 4 (2008) 16 SCC 417

- 8 - psychotropic substance, thereby he is not entitled to claim bail in F.No.DRI/HZU/VRU/48/ ENQ-3(INT-2)/2016 on the file of Directorate of Revenue Intelligence, Regional Unit, Visakhapatnam, Andhra Pradesh, under Sections 22, 28 and 29 of the NDPS Act, in view of the principle laid down by the Apex Court in STATE OF MADHYA PRADESH v. KAJAD (1supra). Consequently, the criminal petition is liable to be dismissed.

In the result, the criminal petition is dismissed. ___________________________________ M. SATYANARAYANA MURTHY, J Date:19.01.2017 BV