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2007 DIGILAW 154 (RAJ)

Dr. Brijbhushan Bansal v. N. C. B. ,Jodhpur

2007-01-19

DALIP SINGH

body2007
JUDGMENT 1. - Heard learned counsel for the petitioner and the learned Public Prosecutor. 2. This is a bail application of the accused petitioner under Section 439 Cr.PC. who is facing trial under Section 8/22 and 29 of the N.D.P.S. Act, 1985. 3. The learned counsel for the petitioner has submitted that the petitioner is alleged to have exported the Drugs, as mentioned in the FIR, without a valid license. 4. It has been submitted that the Drugs in question are Schedule-H Drugs under the Drugs and Cosmetics Act, 1940 and that are not covered under the Schedule-I to the N.D.P.S. Rules and as such in the light of the Rule 53 and 53-A, of the N.D.P.S.Rules, there was no offence committed. He has also relied upon the judgment of the Hon'ble Supreme Court in the State of Uttaranchal v. Rajesh Kumar Gupata reported in 2006 (8) Supreme To-Day 747 and an order of the Allahabad High Court as well as the Bombay High Court where in similar circumstances, where the Drugs in question were Schedule-H Drugs under the Drugs and Cosmetics Act, 1940 and not covered under the Schedule-I of the N.D.PS. Rules, 1985, it was held that no license/authorisation in respect of the same was required for their export. 5. In the present case, as has been pointed out by the Learned Public Prosecutor, the offence, as alleged is inter alia one of contravention of Rule 58 of the N.D.PS. Rules, 1985 which provides that no Drugs, as mentioned in the Schedule to the Act shall be exported without a license as provided under Form No.5 to the N.D.P.S. Rules. It has also been submitted that the Hon'ble Supreme Court, in the case of State of Uttaranchal v. Rajesh Kumar (supra) did not deal with the violation of Rule 58 of the N.D.P.S. Rules, 1985 and as such it is not applicable to the facts of the present case. It has also been pointed out that in the Bombay case, the learned Single Judge of the Bombay High Court has held that the accused had an I.E.D. License issued by the Commerce Ministry which is not a license under Rule 58 or Form No.5 to the N.D.PS. It has also been pointed out that in the Bombay case, the learned Single Judge of the Bombay High Court has held that the accused had an I.E.D. License issued by the Commerce Ministry which is not a license under Rule 58 or Form No.5 to the N.D.PS. Rules, 1985 nor the same was issued by the officer empowered for this purpose, as such, such an I.E.D. License cannot fulfill the requirements of the license under Rule 58 of the N.D.P.S. Rules, 1985. It. has further been submitted that the learned Single Judge of the Bombay High Court as well as the Allahabad High Court have not considered the case in the light of Rule 58 of the N.D.P.S. Rules, 1985. It was also submitted that while Rule 53 speaks of the Drugs mentioned in the Schedule-I to the 'Rules', the provisions of Rule 58 speak of Schedule to the 'Act' and all the Drugs, which the petitioner was allegedly exporting, are enumerated under the Schedule to the Act. Thus, in regard to these Drugs, being Psychotropic Substance, as defined in Section 2(xxiii) read with the Schedule to the N.D.P.S. Act, 1985, and in the light of Rule 58, it was mandatory for the accused to have obtained a license in Form No.5 from the concerned officer in accordance with N.D.P.S. Rules, 1985. Since the accused-petitioner was engaged in export of these Drugs in such a huge quantity without a license and being a Medical Practitioner, he could have only provided the same to his patients against prescriptions as against the modus oprendi of supplying these against orders on inter-net and the petitioner was engaged in commercial transaction of Psychotropic Substance, prohibited under N.D.P.S. Act, 1985. 6. In these facts and circumstances, without expressing any opinion on the merits of the rival contentions, as it may adversely affect the case of either of the parties at the trial, I do not consider it to be a fit case for enlarging the accused-petitioners on bail. I may also add that the bail application of the co-accused Smt.Shivani Agarwal wife of Shri Yatindra Kumar Agarwal in S.B. Criminal Misc. Bail Application No. 3398/2005 has already been dismissed by this court vide order dated 27.02.2006. 7. Consequently, in view of the above, these bail applications under Section 439 Cr.P.C. filed by Dr. I may also add that the bail application of the co-accused Smt.Shivani Agarwal wife of Shri Yatindra Kumar Agarwal in S.B. Criminal Misc. Bail Application No. 3398/2005 has already been dismissed by this court vide order dated 27.02.2006. 7. Consequently, in view of the above, these bail applications under Section 439 Cr.P.C. filed by Dr. Brijbhusan Bansal son of Kanhaiya Lal and Yatindra Kumar Agarwal son of Shri Krishan Chand Agrawal are dismissed.Bail Rejected. *******