Bail Appln. No. 16 of 2024 Page 1

IN THE HIGH COURT OF MANIPUR

AT IMPHAL

BAIL APPLICATION NO. 16 OF 2024

Shri Bhadresh Kr. Patel, aged about 51 years, s/o

Subhashbhai Patel, R/o, 3-147 Patelfaliyua, Avakhal

– 2, Vadodara, Gujarat – 391250.

…. Petitioner

- Versus -

The Union of India represented by the Narcotics Control

Bureau (NCB), through its Intelligence Officer, Narcotics

Control Bureau (NCB), CPWD Quarters, Changangei

Kongba Uchekon, Imphal West, Manipur – 795008.

…. Respondent

B E F O R E

HON’BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU

For the petitioner : Mr. T. Momo, Senior Advocate assisted by

Mr. Ph. Niranjoy, Advocate

For the respondent : Mr. W. Darakishwor, Senior Advocate

Date of hearing : 18.10.2024

Date of judgment &

order : 13.12.2024

KHOIROM

BIPINCHAN

DRA SINGH

Digitally signed by

KHOIROM

BIPINCHANDRA SINGH

Date: 2024.12.13

16:56:12 +05'30'

Bail Appln. No. 16 of 2024 Page 2

JUDGMENT & ORDER

(CAV)

[1] Heard Mr. T. Momo, learned senior counsel assisted by

Mr. Ph. Niranjoy, Advocate appearing for the petitioner and Mr. W.

Darakishwor, learned senior counsel appearing for the respondent.

[2] The present application has been filed under Section

439 of the Cr.P.C. 1973 read with Section 37 of the Narcotic Drugs &

Psychotropic Substances Act, 1985 with the following prayer:

(i) To pass an order for enlarging the

petitioner/accused person on bail in connection

with the Special Trial Case No. 26 of 2023 with

reference to NCB Crime No. 02/NCB/Imp/2024

dated 03.03.2024 U/S 8(c) & 9A r/w S.21(c),

25A, 25 & 29 of the ND & PS Act, 1985, which is

pending before the Ld. Special Court (ND & PS),

Manipur.

(ii) To pass any further order or any appropriate

order/direction in the facts and circumstances of

the case.

[3] Brief facts of the present case are that the petitioner,

who is a father of 1(one) child and also taking care of his wife and

ailing mother aged about 77 years, is sole proprietor of M/s Recover

Healthcare Ltd. which is in operation since 2002 dealing in

pharmaceutical products and a resident of Vadodara Gujarat.

Bail Appln. No. 16 of 2024 Page 3

[4] The petitioner was arrested on 10.05.2023 by NCB

officer and formally arrest memo thereof was also issued to him.

Since then, he has been in judicial custody till date. On 03.07.2023,

in connection with the NCB Crime No. 02/NCB/Imp/2023 dt. 03-03-

2023 U/S 8(c) & 9A r/w S.21(c), 25A, 25 & 29 of the ND & PS Act,

1985, the I.O. of the case had submitted charge sheet before the

Special Judge (ND & PS), Imphal West, Manipur.

In the charge sheet, it has been alleged that the

petitioner supplied 1500 (one thousand and five hundred) packets of

Pseudoephedrine tablets; out of which, 533 (five hundred and thirty

three) packets were seized by the NCB team on 03.03.2023 from the

premises of Jangminthang Guite. He supplied the said tablets to

other accused namely, Abdul Wakil without any valid drug license

using fake authorization of Elite Medical Store, Aizawl, Mizoram in the

name of drug “Cetrizine HCL 10 mg (Levocet)”; for which, the

petitioner received a sum of Rs. 11.68 lakhs in his account at Bank of

Baroda. In connivance with other accused namely, Harshal Desai,

Director of Ardro Drugs Pvt. Ltd., Tapi, Gujarat, the petitioner

received a consignment of the said tablets in the brand name of

“Phifed” tablets and the bill was generated in the name of “Admos

SR” upon instructions of the said Abdul Wakil.

It was also alleged that during search of the office-cum-

godown of the petitioner on 09.05.2023, well prepared fake labels of

“Cetrizine HCL 10 mg” tablets manufactured by the Sunview Biotech

Bail Appln. No. 16 of 2024 Page 4

were recovered which were similar in nature found affixed onto the

seized 533 packets of Pseudoephidrine tablets by the NCB team on

03.03.2023 and the search-cum-seizure list was prepared on the

same day.

[5] The petitioner filed a case being Special Trial Case No.

26 of 2023 before the Special Judge (ND & PS), Imphal West,

Manipur at Lamphelpat. While pending the case for charge hearing

before the Court, since the petitioner had health issues/problems, he

had filed a bail application being Cril. Misc(B) Case No. 209 of 2023

(Ref. : S.T. Case No. 26 of 2023) before the same Court for releasing

on bail on medical ground. However, vide order dated 12.09.2023

(Annexure – A/3) , the said bail application was rejected. The

operative portions of the order are extracted hereunder:

“10. Perused materials on record including the Search cum

Seizure list, statement of witness so far recorded, etc.

At this stage, there exists no such facts and

circumstances on record that are sufficient in

themselves to justify satisfaction that the accused is

not guilty of the alleged offences or no reasonable

grounds to believe that the accused is not guilty of the

said offences. There is also nothing to show that the

accused is not likely to commit any similar offence

while on bail.

11. In view of the above said health status report of the

accused, having regard to the relevant considerations

including seriousness of the alleged offences and the

stage of the case being at charge hearing, I am not

inclined to release the accused on bail.

12. Therefore, the application is rejected and stands

disposed of.”

Bail Appln. No. 16 of 2024 Page 5

[6] Since the petitioner had continued to suffer from

multiple health issues/problems and the jail authority was unable to

provide proper medical attention to him, he had filed another bail

application being Cril. Misc.(B) Case No. 261 of 2023 (Ref.: S.T. Case

No. 26 of 2023) before the Ld. Special Judge (ND & PS), Manipur at

Lamphelpat praying for releasing him on bail

(Annexure – A/4) .

[7] Further, he had filed a case being Cril. Misc. Case No.

154 of 2023 (Ref.: Cril. Misc. (B) Case No. 261 of 2023 in S.T. Case

No. 26 of 2023) before the same Court with the prayer for releasing

him on bail pending trial of referred case, coupled with prayer for

calling medical report from the Superintendent, Manipur Central Jail,

Sajiwa

(Annexure – A/5) . Vide order dated 17.11.2023 (Annexure –

A/6),

the Ld. Special Judge (ND & PS) passed the following order:

“As above, the S.P. Jail, Sajiwa is directed to get the

accused/petitioner medically examined and submit the health

status report on 22-11-2023.

Fix 22- 11-2023 for report and hearing.

Send a copy of this order to the S.P., Manipur Central

Jail, Sajiwa.

Petitioner is to take steps.”

As per the order dated 17.11.2023, the medical report

dated 22.11.2023 was filed before the Ld. Special Judge (ND & PS),

Manipur at Lamphelpat

(Annexure – A/7) .

[8] Vide order dated 07.12.2 023

(Annexure – A/8) , the Ld.

Special Judge (ND & PS), Manipur praying for releasing on bail

rejected the bail application being Cril. Misc.(B) Case No. 261 of 2023

Bail Appln. No. 16 of 2024 Page 6

(Ref.: S.T. Case No. 26 of 2023). The operative portions of the said

order are extracted as follows:

“8. On perusal of the materials on record, at this stage,

there exists no such facts and circumstances on record

that are sufficient in themselves to justify satisfaction

that the accused is not guilty of the alleged offences

or no reasonable grounds to believe that the accused

is not guilty of the said offences. There is also nothing

to show that the accused is not likely to commit any

similar offence while on bail.

9. In view of the above statement of said Dr. M. Amarjit

Singh, Medical Officer of MCJ, Sajiwa in c/w the health

status report of the accused, having regard to all the

relevant considerations including seriousness of the

alleged offences and the stage of the case, I am not

inclined to release the accused on bail.

10. The SP, Manipur Central Jail, Sajiwa is hereby

informed to provide all the necessary and proper

medical facilities (including MRI, Colonoscopy and

Endoscopy) to the accused at the earliest and submit

a report in this regard on or before 15/12/2023.

11. Therefore, the application for bail is rejected and

stands disposed of.

12. Copy of this order be sent to the S.P., Manipur Central

Jail Sajiwa for information and necessary steps.”

As per the order dated 07.12.2023, the S.P., Manipur

Central Jail Sajiwa wrote a letter dated 14.12.2023 to the Ld. Special

Judge (ND & PS), Manipur mentioning that the medical report could

not be submitted timely since the medical investigation report done

in JNIMS have not been received by his office and therefore,

requested to submit the same on another date after receiving the

report from the JNIMS.

[9] However, the medical report has not been given to the

petitioner and no report has also been submitted before the Ld.

Special Judge (ND & PS), Manipur till date by the S.P., Manipur

Bail Appln. No. 16 of 2024 Page 7

Central Jail, Sajiwa. Accordingly, the present bail application has been

filed under the following grounds:

(i) The petitioner is under trial prisoner and his

detention in jail for an indefinite period violates Article

21 of the Constitution of India. Every person detained

or arrested in jail is entitled to get speedy trial. It is

settled law that bail is the rule and jail an exception and

that the refusal of bail is a restriction on the personal

liberty of the individual guaranteed under Article 21 of

the Constitution of India.

(ii) Detention of the petitioner in jail will not serve

any useful purpose as the investigating authority

already submitted the charge sheet before the Ld.

Special Judge (ND & PS), Manipur at Lamphelpat after

completion of the investigation and no charge has been

framed against the petitioner till date and the

proceedings of the present trial case has been

adjourned without framing of charges.

(iii) There is no prima facie case against the

petitioner from the evidence and the documents

produced by the prosecution.

(iv) Nothing incriminating or contraband has ever

been found from the premises of the petitioner. The

allegation in the charge sheet against the petitioner is

Bail Appln. No. 16 of 2024 Page 8

that during the search of the office-cum-godown of the

petitioner on 09.05.2023, the fake labels of “Citrazine

HCL 10 mg tablet” manufactured by the Sunview

Biotech was recovered which were similar in nature

found affixed onto the seized 533 packets of

Pseudoephidrine tablets by the NCB team on

03.03.2023. The said materials found and seized from

the house premises of Jangminthang Guite who is a

resident of Moreh, Manipur, which has no any nexus

with the petitioner, who is a resident of Gujarat.

(v) The petitioner has nothing to do with the alleged

offence in connection with the charge sheet of the Sp.

Trial (NDPS) Case No. 26 of 2023 and since the arrest

till date, the petitioner has been cooperating with the

I.O. of the case.

(vi) Since the material seized is neither narcotic drug

nor psychotropic substance, the classification of small

quantity, moderate quantity and commercial quantity

etc. would not be applicable to the present case.

(vii) The petitioner has many health issues/problems

and furthermore, he is the sole bread earner of his

family.

Bail Appln. No. 16 of 2024 Page 9

(viii) Even though the Ld. Special Judge (ND & PS),

Manipur vide order dated 07.12.2023 directed the S.P.,

Manipur Central Jail Sajiwa to provide the necessary

and proper medical facilities to the petitioner and

submit a medical report in that regard on or before

15.12.2023, no report has been submitted by the S.P.,

Manipur Central Jail Sajiwa till date.

(ix) The Ld. Special Judge (ND & PS), Manipur, vide

its order dated 07.12.2023, has not given any cogent

reasons for rejecting the bail application of the

petitioner. The said order is cryptic and is devoid of any

reasons for rejecting the bail application.

[10] Counter affidavit has been filed on behalf of the

respondent wherein grounds for rejection of the bail application have

been mentioned as follows:

i) The accused Md. Abdul Wakil came in contact

with Bhadresh Patel through his staff Anil Nayaka

through B2B business platform that is Tradeindia and

made a deal ofpurchasing 15 lakh tablets of

Pseudoephedrine Hydrochloride in the month of January

2023. On 19.01.2023 Bhadresh Kumar Patel received a

consignment of 15 lakh tablets (without label) in the

billing of Admos SR from M/s Ardor Drugs Pvt. Ltd which

is a manufacturer located at Vankhel, Songadh Ukai

road, Songadh, Gujarat by carrying one tempo driven by

Vipul Batt. Thereafter Bhadresh Patel directed Nitin Kr.

Panchal to receive the consignment on 19.01.2023 at

Bail Appln. No. 16 of 2024 Page 10

M/s Recover Healthcare godown in assistance with Anil

Bhai Nayaka and also instructed them to put the labeling

of Citrizine HCI (Levocet) tablets which actually

contained Pseudoephedrine tablets on each of the 1500

packets of loosed tablets in plastic packets for further

dispatched to Abdul Wakil.

ii) On the demand of Abdul Wakil, Bhadresh Kumar

has given 1500 packets of Pseudoephedrine tablets

weighing more than 300 kg of Pseudoephedrine tablets

in 26 cartoon boxes on 31.01.2023 which was booked in

Giri Cargo on Sanand road. Ahmedabad on 31.01.2023.

By showing them fake label of Triprolidine HCI tablets

(Colzen) as per plan and get it affixed on the

consignment of Pseudoephedrine tablets. However when

Abdul Wakil hinted Bhadresh Patel that it would be

difficult to transport the tablets in the name of

Pseudoephedrine tablets and as per suggestion of Abdul

Wakil, Bhadresh Patel arranged labels of such drugs

which do not contain Pseudoephedrine salt. Hence

Bradhesh Kumar Patel arranged from one Kalpan Modi

who runs a shop in the name of Intergraph at Sola

Bhuyang Dev. Ahmadabad to design labels of Cetrizine

Hydrochloride tablets 10 mg (Levocet) and later on

affixed on all the 1500 packets of Pseudoephedrine

tablets by two of M/s Recover Healthcare employees

namely Nitin Kr. Panchal and Anil Nayaka in the godown

of M/s Recover Healthcare own by Bhadresh Patel.

Further Abdul Wakil made a payment of Rs 11.68 lakh to

Bhadresh Patel's bank account no. 03320100399 of

Kalupur Commercial Co-op Bank Ltd. in between

27.01.2023 to 02.02.2023.

Bail Appln. No. 16 of 2024 Page 11

iii) Bhadresh Kumar Patel revealed that M/S Recover

Healthcare has received 1500 packets of Phifed tablets

which delivered by M/s Ardor Drugs Pvt. Ltd on the

billing of Admos SR on 19.01.2023 that was

manufactured by M/s Ardor Drugs Pvt. Ltd. owned by

the accused Harshal Desai who is working in

consultation with the accused Mehul Desai in supplying

the seized Pseudoephedrine and Tramadol based

pharmaceuticals tablets under different brand names

such as Phifed, Asifed, Admos SR ete and sold out more

than 1 crore Phifed tablets containing Pseudoephedrine

salt to M/S Recover Health care.

iv) Bhadresh Patel has also admitted in his

statement that Harshal Desai used to generate Tax

Invoices in the name of M/s Recover Healthcare but the

products mentioned in the Tax Invoices used to be

supplied to some other parties. Sometimes Harshal

Desai used to generate false bills with the name of some

other products for supply of Pseudoephedrine based

tablets to Bhadresh Patel to sell the said

Pseudoephedrine tablets. For the said purpose Harshal

Desai paid Rs. 10 lakh (i.e. @ Rs. I for 10 tabs of

pseudoephedrine) as commission to Bhadresh Patel,

which is reflected in the bank account statement of

Kalupur Commercial Co-operative Bank of M/s Recover

Healthcare own by Bhadresh Patel. Since Ardor Drugs

Pvt. Ltd., is a manufacturing company hence Rs 10 lakh

might have been credited to company's bank account

but here amount has been paid from the company's

bank account to M/s Recover Healthcare bank account

which is something not generally practice. Further

Bhadresh Patel and Harshal Desai also admitted the fact

Bail Appln. No. 16 of 2024 Page 12

that said Rs 10 lakh was commission paid to Bhadresh

Patel for generating fake bills/invoices in the name of

M/s Recover Healthcare. Here also in the present bail

petition, nothing proper justification has been given by

the petitioner.

v) The accused Abdul Wakil also corroborated in his

statement that he procured the consignment of 1500

packets of Pseudoephedrine tablets from M/s Recovery

Healthcare Ahmedabad through accused Bradesh Kumar

Patel in association with his other two staffs/employee of

M/S Recover Health Care namely Nitin Kr. Panchal and

Anil Bhai Nayaka.

vi) During investigation, CDRs of mobile number of

Bhadresh Patel/Abdul Wakil, Bhadresh Patel Anil Nayaka

and Bhadresh Patel/Harshal Desai were also analyzed

which clearly indicates that they were in regular touch

during the process of delivery of the consignment of

Pseudoephedrine tablets. (Copy of CDR analysis of

Bhadresh Patel has already been submitted at Final

Complaint dated 03.07.2023 of pages no. 363 and

additional/supplementary complaint dated 03.10.2023.

vii) During the search of the office/godown premises

of M/s Recover Healthcare in Ahmedabad, fake labels of

Levocet Cetrizine Hydrochloride 10 mg was recovered

and seized also. It is pertinent to mention that same

labels were also found on the seized 533 packets of

Pseudoephedrine tablets which clearly establish the

linkage of seized tablets with Bhadresh Patel and his

firm Recover Healthcare, Ahmedabad.

viii) During investigation it was also found that, it

was Bhadresh Patel who made the arrangement of stay

of Abdul Wakil when he reached to Ahmedabad in

Bail Appln. No. 16 of 2024 Page 13

January 2023 for the deal of Pseudoephedrine tablets.

All these facts have been corroborated in the statements

of his two of the staff Nitin Panchal and Anil Nayaka who

were also found indulged in the present crime along with

Bhadresh Patel.

ix) There is adequate piece of evidence available

with the prosecution which indicates the key role of

accused. There are still various facts which are to be

corroborated to ascertain the further linkage or the

source of the seized 110.5 kg of Pseudoephedrine

tablets, which will not be possible if the accused is

granted bail at this juncture.

x) The forensic examination report no.

CFSL(KR)/627/NAR/32/23 dated 26.10.2023 was

received from Guwahati which gave positive test or

result as given: Diacetyl morphine (heroine), Morphine-

3-acetate, 6- Monoacetylmorphine and Acetylcodein

have been detected in Exhibit-A and Pseudoephedrine

has been detected in Exhibit-B. (The chemical test report

has already been submitted in separate supplementary

petition dated 09.11.2023 through SPP, NCB). The

chemical test report has proven and completed the

prosecution justification that all the accused are involved

in illegal trade/business which also clearly indicates the

huge conspiracy made on the diversion of the

Pseudoephedrine tablets meant for trafficking and

manufacturing of Methamphetamine (ATS), a banned

drug.

xi Further proclamation issued against wanted

suspect namely, Ms. Sultani, Sh. Jaminthang Guite and

Ms. Hawlemneng Guite u/s 82 of the NDPS has been

published/flashed in local newspaper on 14.04.2024 and

Bail Appln. No. 16 of 2024 Page 14

15.04.2024 and accordingly the Special NDPS court,

Lamphel is taking up action in continuing with the trail

and proceeding of the case.

xii) The accused, in the present case, Harshal Desai

and Mehul Desai has been issued Detention Order under

PITNDPS Act by the Joint Secretary. Ministry of Finance

on dated 28.02.2024 and copy of the same served on

29.02.2024 and 01.03.2024 for engaging in illicit

trafficking of narcotics drugs & psychotropic substance

and confirmation order is awaited from the advisory

board.

[11] The learned senior counsel appearing for the petitioner

submits that rejoinder affidavit has been filed stating that the

allegations made in the final complaint (charge sheet) dated

03.07.2023 submitted before the Ld. Special Judge (NDPS) Court,

Manipur in Special Trial Case No. 26 of 2023 are yet to be proved

and the same is at the stage for charge hearing, which is pending

before the Ld. Special Judge (NDPS) Court, Manipur.

[12] Further, the learned senior counsel appearing for the

petitioner submits that there is no prima facie or reasonable ground

to believe that the accused had committed an offence from the

evidence and the documents produced by the prosecution. The

petitioner/accused person was arrested on 10-05-2023 and

thereafter,accused/petitioner was remanded into judicial custody by

an order of the Ld. Special Judge (ND&PS) Manipur. The

investigating officer submitted the final complaint (charge-sheet)

Bail Appln. No. 16 of 2024 Page 15

dated 03.07.2023 before Ld. Special Judge ND&PS, Manipur.

Therefore, the presence of the petitioner/accused person is no more

required for any further investigation of the case. The charge has not

been framed against the petitioner/accused person till date and the

proceedings of the present trial case has been adjourned without

framing of charges.

The petitioner/accused person is in the judicial

custody since 10-05-2023 till date and he has spent more than 13

(thirteen) months in judicial custody. The petitioner/accused person

is under trial prisoner and his detention in jail for an indefinite period

violates Article 21 of the Constitution of India.

Every person, detained or arrested is entitled to get

speedy trial. It is settled law that bail is the rule and jail an exception

and that the refusal of bail is a restriction on the personnel liberty of

the individualguaranteed under Article 21 of the Constitution. The

detention of the petitioner/accused Person in jail will not serve any

useful purpose as the investigating authority already submitted the

charge sheet before the Ld. Special Judge, ND&PS, Manipur. There is

no likelihood that the petitioner/accused person will abscond after

releasing him on bail as he has been co-operating with the I.O.

Moreover, there is no question of the petitioner/accused person

hampering or tempering with any prosecution evidence or threating

the witness after the petitioner/accused person is released on bail.

Bail Appln. No. 16 of 2024 Page 16

The material seized in the present case is

"Pseudoephedrine", which is a controlled substance within the

meaning of Section 2(viid) of the Act. It is neither a Narcotic Drugs

nor a Psychotropic substance as envisaged under Section 2(viia) of

the Act. Section 9A of the Act deals with controlled substance is

concerned, there is no categorization of small quantity or commercial

quantity. Therefore, the classification of small quantity, moderate

quantity and Commercial quantity etc. would not be applicable to the

present case. Hence, the bar of Section 37 of the NDPS is not

attracted in the present case.

[13] The accused through their counsel prays for discharging

the accused from the liability of the case during the course of charge

hearing. But, vide order dated 18.09.2024, the Ld. Special Judge (ND

& PS), Manipur rejected the prayers to discharge the accused

persons from the case and accordingly, charges were framed against

the accused after threadbare discussion and taking into consideration

of the facts and circumstance of the case and the involvement

therein of the accused. The case is registered as Special Trial Case

No. 26 of 2023. The relevant portion of the said order is extracted

herein below:

“15. Without going into a detailed discussion about the

merits of the case, in the light of the above decision of

the Hon’ble SC, I consider that at this stage, there

exist sufficient materials showing prima facie case for

proceeding against all the accused persons in the

case. Based on the materials on record, I find

sufficient basis for framing charge for the commission

of offence under Section 25/25 A and 21(c) of the

Bail Appln. No. 16 of 2024 Page 17

NDPS Act as against the accused No. 2 namely, Mrs.

Nemkhohat Guite and for the commission of offences

under Section 25 A/29 of the NDPS Act and Sections

465/487 IPC as against the accused No. 1, 3, 4 and

5o. 1, 3, 4 and 5 namely, Md. Abdul Wakil, Shri

Bhadresh Patel, Shri Nitin Kumar Panchal and Shri

Anilbhai Nayaka (29) respectively. Further, I find

sufficient basis for framing charge for the commission

of offence under Section 25 A/29 of the NDPS Act as

against the accused No. 6 and 7 namely, Shri Harshal

Desai and Shri Mehul Desai. The above said charges

are to be framed in separate sheets. Therefore,

prayers to discharge the accused persons from the

case are hereby rejected and the applications filed in

that regard also stand disposed of.”

The roles of the applicant/accused above name are

extracted herein below:

(i) Bhadresh Patel supplied 1500 packets each

containing 1000 tablets of Pseudoephedrine out of

which 533 packets actually seized by the team of NCB

Imphal on 03.03.2023 from the premises of

Jangminghtang Guite.

(ii) Bhadresh Patel supplied the Pseudoephedrine

contents tablets to Abdul Wakil without having any drug

license or valid documents for which he accepted an

amount of Rs. 11.68 lakh in his Bank of Baroda account.

(iii) Bhadresh Patel in connivance with Harshal Desai,

Director of Ardro Drug Pvt. Ltd. Tapi, Gujarat received

the consignment of Pseudoephedrine tablets in the

name of Admos SR (A non NDPS content drug) on

receiving instruction from Abdul Wakil.

Bail Appln. No. 16 of 2024 Page 18

(iv) Bhadresh Patel got prepared fake labeling of

Cetrizone Hydrochloride tablets 10 mg (Levocet) and

facilitated Abdul Wakil in safe passage of huge

consignment of Pseudoephedrine tablets in the false

billing and sent through Giri Cargo, Ahmedabad for

further transportation to Delhi.

(v) On 18.01.2023 Bhadresh Patel called Videsh Bhai

Patel (One driver of his native of Awakhal, Vadodra)

and asked him to deliver 26 carton boxes from Ardor

Drug Pvt. Ltd., Dev Krupa Estate, Songadh-Ukai Road,

Tapi to M/s Recover Healthcare, Sarkhej, Ahmedabad.

Accordingly, the consignment of Phifed tablets in

the false billing of Admos SR transported from

manufacturing unit Tapi to Ahmedabad.

Bhadresh Patel made the design the fake lebels

of Cetrizone Hydrochloride tablets 10 mg (Levocet) from

one shop Intergraph at Sola Bhuyang Dev, Ahmedabad

which he further sent to M/s Vardhman Printers at

Vastrapur, Ahmedabad for final printing which were

later affixed on all the 1500 packets of Pseudoephedrine

tablets by his two of the employees namely Nitin Kr.

Panchal and Anil Nayaka in the godown of M/s Recover

Healthcare.

Bail Appln. No. 16 of 2024 Page 19

(vi) From analyzing the CDR of Abdul Wakil of his

mobile no. 9366428134 and Bhadresh Patel mobile no.

9377958152, it is clear that they were in touch with

each other and planning for the conspiracy.

(vii) During the search of office-cum-godown

premises of Bhadresh Patel on 09.05.2023, the fake

labels of Cetrizine HCL 10 mg (Levocet) tablets

manufactured by Sunview Biotech was recovered which

was similar in nature found affixed onto the seized 533

packets of tablets by NCB Imphal on 03.03.2023.

(viii) Bhadresh Patel supplied the huge quantity of

Pseudoephedrine tablets only on production of fake

authorization of Elite Medical Store Aizawl, Mizoram by

Abdul Wakil and that is also in garb of an another drug

namely Cetrizine HCL 10 mg (Levocet) of which he

himself got prepared the labels with the help of one

Kalpan Modi etc.

The submissions made by Mr. W. Darakishwror, learned

senior PCCG appearing for the respondent (NCB) made in the reply

affidavit are corroborated with the facts and circumstances of the

case set out in the charge sheet.

Bail Appln. No. 16 of 2024 Page 20

[14] The learned Special Judge (ND & PS), Manipur while

passing the impugned order dated 12.09.2023 and while rejecting

the bail application of the present petitioner/accused considered all

these facts i.e. the facts of the case and allegation made against the

present petitioner/accused as narrated above including the health

status report submitted by the Medical Officer, Manipur Central Jail,

Sajiwa.

[15] Mention is made herein that this Court vide order dated

10.04.2024, was pleased to grant an interim bail to the

petitioner/accused. Thereafter, the accused/petitioner had a

Gallbladder removal operation and as per this Court’s order, after the

Gallbladder removal operation surrendered before the Sajiwa Jail.

Thereafter, there is no report of further deterioration of the

petitioner/accused while in jail.

[16] The learned senior counsel appearing for the petitioner

relied on the following judgments:

Dhirendra Prakash Saxena V. Directorate of

Revenue Intelligence [2023 SCC OnLine Del

2770 : (2023) 385 ELT 662] –

“34. Judgments relied upon by the learned Sr. SC

appearing on behalf of the DRI concern grant of bail in

relation to the satisfaction of the twin conditions contained

in Section 37 of the NDPS Act. As aforesaid, the position

that rigors of Section 37 will not applicable in a case where

in the recovery is that of a controlled substance has been

clarified by way of various judgments. In Niranjan

Jayantilal Shah (supra), while granting bail to the applicant

in a case where 100 kg Pseudoephedrine was recovered, a

coordinate bench of this Court took note of various other

decisions involving controlled substances and observed as

under:

Bail Appln. No. 16 of 2024 Page 21

“6. During the course of arguments, it was fairly

conceded by learned counsel for the respondent that

bar of Section 37 of the NDPS Act is not attracted in

the present case since as per the prosecution 100

kgs. of Pseudoephedrine was recovered which is a

controlled substance within the meaning of Section

2(vii)(b) of the Act. Pseudoephedrine is not a

narcotics drug as envisaged under Section 2(vii)(a)

of the Act. In N.C. Chellathambi (supra) recovery

was of 1600 liters of Acctic Anhydride, in Rajiv

Kumar @ Sukha (supra) recovery was of 25 kgs

powder ephedrine hydrochloride, in Faijay Ahmed

Rasool Shaikh (supra) and another recovery was of

290 kgs of pseudoephedrine, in Chakrapani Dutt

(supra) recovery was of 100 litres of Acctic

Anhydride, and inal these cases since the accused

had remained in custody for certain period, they

were released on bail.”

Manoj Kumar V. Director of Revenue

Intelligence (Through Vikram Singh) [2015 SCC

OnLine Del 7830 : (2015) 219 DLT 112] –

“3. The submission of learned counsel for the petitioner

is that he was merely an employee of Rakesh Arora, the

co-accused, who was the kingpin. The petitioner was

merely acting on the instructions of his employer. Learned

counsel submits that Section 37 of the Narcotic Drugs and

Psychotropic Substances Act (NDPS Act) is not applicable

in the present case, since pseudoephedrine is not a

narcotic substance. He submits that the petitioner has

been in custody since the date of his arrest, i.e.

02.05.2013. Learned counsel submits that this Court in the

decision in Niranjan Jayantilal Shah v. Directorate of

Revenue Intelligence decided on 19.11.2013 (Bail Appl No.

1202/2013) had granted bail on the accused, where the

recovery of the same controlled substance had been made

of 100 kgs. This decision referred to had relied upon

several other earlier decisions of the Court, where recovery

of much larger quantities of controlled substance have

been made.

10. As noticed above, the petitioner has been in custody

for nearly 22 months. The decision rendered by this Court

in Niranjan Jayantilal Shah (supra) shows that in cases

where quantity of the controlled substance recovered was

even much larger, the Court had granted bail to the

accused considering the period for which they had granted

bail to the accused considering the period for which they

had remained in custody during the trial. Accordingly, the

present application is allowed.”

Bail Appln. No. 16 of 2024 Page 22

Tinimo Efere Wowo V. State Govt. of NCT of

Delhi [2022 SCC OnLine Del 46] –

“11. Section 9A of the NDPS Act deals with the power to

control and regulate' controlled substance. "Controlled

substance" means any substance which the Central

Government may, having regard to the available

information as to its possible use in the production

manufacture of narcotic drugs or psychotropic substances

or to the provisions of any international Convention, by

notification be a controlled in the official Gazette, declare

substance. The Ministry of Finance Department of

Revenue vide its notification dated 28th December, 1999

has declared pseudo-ephedrine a controlled substance

under the Act. The Central Government being of the

opinion that having regard to the use of the controlled

substances in the production or manufacture of any

narcotic drug or psychotropic substance, it is necessary or

expedient so to do in the public interest, in exercise of

powers conferred by Section 9A of the Act has made the

Narcotic Drugs and Psychotropic Substances (Regulation

of Controlled Substance) Order, 1993, which has come

into force w.e.f. 15

th

April, 1993.

12. The substance alleged to have been recovered from

the petitioner/accused is 5 Kg. of pseudoephedrine which

is a controlled substance. It has been rightly submitted by

the Ld. counsel for the petitioner/accused that it is neither

a narcotic drug nor a psychotropic substance under the

NDPS Act. The alleged offences are not punishable with

death or imprisonment for her NDPS Art The ailing U/s 9A

r/w section 254 of the NDPS Act is punishable with

imprisonment which may extend to 10 year and also fine

which may also extend to imprisonment which may of

Section 37 is not attracted in the present case as the

substance recovered is a controlled substance within the

meaning of Section 2 (viid) of the Act.

18. The other recovery from the possession of the

petitioner is 15 gm. Cocaine which is also not a

commercial quantity, therefore, in the instant case, bar of

Section 37 of NDPS Act is not applicable. Though the

petitioner is a foreigner but as already observed

hereinabove and in view of the judgments "supra" there is

no bar to release a foreign national on bail in the given

facts and circumstances of this case. In the present case,

the petitioner is married to an Indian lady and having kids

with her. The factum of his marriage and kids has been

verified by the state and statements of the relatives of the

wife of the petitioner have already been recorded in this

Bail Appln. No. 16 of 2024 Page 23

regard. The petitioner is in J.C. since 16.02.2018 and the

final conclusion of the trial of this case is likely to take

long time. Therefore, the petitioner is admitted to bail on

his furnishing personal bond in the sum of Rs. 1,00,000/-

with two solvent sureties each of the like amount subject

to the satisfaction of the trial Court. Being released on

bail, the petitioner shall inform the IO of the case, the

address at which he will reside during, the period he is on

bail. Any change in the address shall also be

communicated to the 10 of the case within 2 days. The

petitioner shall report to the 10 of the case at police

station Crime Branch, Delhi every fortnight till the

conclusion of the trial. The petitioner shall not leave the

limits of NCT of Delhi without prior permission of the Trial

Court. With these directions, the application is disposed

of. “

Niranjan Jayantilal Shah V. Directorate of

Revenue Intelligence [2013 SCC OnLine 4608]

–

“4. Rebutting the submission of learned counsel for the

respondent it was submitted by learned counsel for the

petitioner that Rizwan Ahmad, relied upon by learned

counsel for the respondent, does not help him, inasmuch

as, in that case also recovery was of the controlled

substance and therefore Section 37 of NDPS Act was not

applicable, yet on that ground alone the application was

dismissed. SLP was dismissed by a non- speaking order.

In the subsequent case titled as Department of Customs

v. Hemant Kumar 2012 [4] JCC [Narcotics] 178 it was

observed that the judgment of Rizwan Ahmad is contrary

to the explicit language of Section 37 of NDPS Act. The

same is per incuriam. That being so, the said order does

not come in the way of the petitioner for getting the relief

of bail.

6. During the course of arguments, it was fairly

conceded by learned counsel for the respondent that bar

of Section 37 of the NDPS Act is not attracted in the

present case since as per the prosecution 100 kgs. of

Pseudoephedrine was recovered which is a controlled

substance within the meaning of Section 2(vii) (b) of the

Act. Pseudoephedrine is not a narcotics drug as envisaged

under Section 2(vii)(a) of the Act. In N.C. Chellathambi

(supra) one tonne of ephedrine was recovered, in Ajay

Aggarwal (supra) recovery was of 1600 liters of Acctic

Anhydride, in Rajiv Kumar Sukha (supra) recovery was of

25 kgs powder ephedrine hydrochloride, in Faiyaz Ahmed

Rasool Shaikh (supra) and another recovery was of 290

Bail Appln. No. 16 of 2024 Page 24

kgs of pseudoephedrine, in Chakrapani Dutt (supra)

recovery was of 100 liters of Acctic Anhydride, and in all

these cases since the accused had remained in custody

for certain period, they were released on bail. As regards

Rizwan Ahmed, where the bail application was dismissed,

it is fairly conceded by learned counsel for DRI that DRI

had not taken any plea that the petitioner was not entitled

to bail due to rigour of Section 37 of the NDPS Act on

which ground alone the application was dismissed,

however, it was submitted that since the SLP has been

dismissed, therefore, the petitioner is not entitled for ball.

In Department of Customs (supra) relled upon by learned

counsel for the petitioner, it was observed that the

judgment in Rizwan Ahmad is contrary to the explicit

language of Section 37 of NDPS Act and the same is

per incuriam.”

[17] It is admitted position of fact and law that the seized

articles as mentioned in the present case are controlled drugs as

such, Section 37 of the ND & PS Act is not applicable and the

accused/petitioner and his co-accused are right now languishing in

jail for about one and half years, but considering the nature of the

case, the prosecution have taken the steps leading to the filing of

charge sheet promptly and the Ld. Trial Court also conducted the

case promptly without wasting time.

[18] In the facts and circumstances of the case, considering

the role of the present petitioner/accused in commission of the

alleged crime set out in the case, this Court is of the view that the

Ld. Special Court (ND & PS) rightly passed the impugned order and

there is no room for interfering with the impugned order.

Accordingly, the present bail application filed by the

accused/petitioner is rejected as devoid of merit. However, the liberty

is given to the petitioner/accused to approach the Ld. Special Court

Bail Appln. No. 16 of 2024 Page 25

wherein, the trial is going on, if the health condition of the

accused/petitioner is deteriorating and if need arises for further

treatment. The Ld. Trial Court is directed to complete trial of the case

as soon as possible.

Accordingly, with the above finding and direction, this

bail application is dismissed and disposed of.

JUDGE

FR/NFR

Bipin