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2013 DIGILAW 2214 (RAJ)

Rahul Bhardwaj v. State

2013-12-06

KANWALJIT SINGH AHLUWALIA

body2013
Hon'ble AHLUWALIA, J.—Present application has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in a case arising out of FIR No.840/Jaipur/19-xxvi/2012, dated 9/10.8.2012, registered at Police Station Directorate of Revenue Intelligence, Unit, Jaipur for commission of offences punishable under Sections 22, 23, 24, 25, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The Directorate of Revenue Intelligence, Unit, Jaipur had recovered 100.642 kilograms Ketamine worth Rs.70.50 lakhs from possession of the present petitioner. 3. The learned counsel appearing on behalf of the petitioner has referred to Page No.30 of the paper book to contend that as per the report of Laboratory the contraband recovered was Ketamine Hydrochloride. 4. Counsel appearing for the petitioner has relied upon the judgment of M. Buhari vs. The State of Tamil Nadu, reported in Indian Kanoon-http://indiankanoon.org/doc/770845/Madras High Court, wherein it was held as under:- "6. In this context, it is relevant to mention that we have already held in our order in H.C.P.Nos.1303 and 1306 of 2009 dated 18.06.2010 that pure Ketamine is available in powder form and Ketamine Hydrochloride, which is also in powder form, is an organic compound of Ketamine, different from pure Ketamine. In view of the same and in the light of the view expressed by the earlier division benches of this court in (1) N.K. Jawahar Ali and others vs. The State of Tamil Nadu, rep. by its Secretary, Public (SC) Department, Fort St. George, Chennai - 600 009 and others reported in 2009-2-L.W.(Crl.) 1285, and (2) Esakkimuthu vs. State represented by Commissioner of Police, Office of the Commissioner of Police, Kokkirakulam, Tirunelveli City and Another reported in (2009) 3 MLJ (Crl) 1, the failure on the part of the detaining authority to consider whether Ketamine and Ketamine Hydrochloride are one and the same substance would amount to non-application of mind and the same would vitiate the order of detention. 7. The learned counsel for the petitioner also drew our attention to the Notification No.67(RE-2007)/2004-2009 dated 27.12.2007 under which restriction has been imposed only regarding Ketamine and not on export of Ketamine Hydrochloride. The attention of this court was also drawn to the report of Forensic Sciences Department, Government of Tamil Nadu, Narcotics Division, Chennai-4, a copy of which is available in page 183 of the paper book. The attention of this court was also drawn to the report of Forensic Sciences Department, Government of Tamil Nadu, Narcotics Division, Chennai-4, a copy of which is available in page 183 of the paper book. In the said report, a finding was recorded to the effect that the samples drawn from the alleged contraband seized from Shahul Hameed was Ketamine Hydrochlo-ride. At the bottom of the report, the following notes are found. 1. Ketamine Hcl is the hydrochloride salt of ketamine 2. Ketamine Hcl is not covered under NDPS Act of 1985 3. Ketamine Hcl is an animal anaesthetic and is occasionally used as Human anaesthetic also 4. Ketamine is a Psychedelic substance similar to phencyclidine (PCP) 8. From the said report and the explanatory note 1 and 2, it is quite obvious that Ketamine Hydrochloride is different from Ketamine. It is also obvious that Ketamine Hydrochloride is not covered under the NDPS Act, 1985. A reading of the said notice in conjunction with the notification referred to supra, will make it obvious that for exporting Ketamine alone, a 'No Objection Certificate' from the Narcotics Commissioner is needed and for exporting Ketamine Hydrochloride, no such 'No Objection Certificate' is needed. Therefore, we are convinced with the tenability of the contention raised on behalf of the petitioner that the observation of the detaining authority that the petitioner/detenu was indulging in smuggling of Ketamine through carriers much against the above said notification, shows non-application of mind." 5. Counsel appearing for the petitioner has submitted that Ketamine Hydrochloride is not prohibited salt and, therefore, petitioner has committed no offence under the provisions of the N.D.P.S. Act. 6. A perusal of the judgment cited above by the learned counsel appearing for the petitioner and rendered by the Division Bench of Madras High Court, clearly reveals that Ketamine Hcl is the Hydrochloride salt of Ketamine. 7. Schedule to Clause XXIII of Section 2 of the Act give list of psychotropic substances Entry No.110-A and 111 reads as under: "4 110A. Ketamine: 2-(2-cholorpheny1)-2-(methy1 amino) cyclohexanone] 5[111.] Salts and preparations of above. 8. 7. Schedule to Clause XXIII of Section 2 of the Act give list of psychotropic substances Entry No.110-A and 111 reads as under: "4 110A. Ketamine: 2-(2-cholorpheny1)-2-(methy1 amino) cyclohexanone] 5[111.] Salts and preparations of above. 8. A perusal of the judgment cited and rendered by the Division Bench of Madras High Court, clearly reveals that the Madras High Court had not taken into consideration Entry No.111, therefore, the judgment of the Madras High Court is subsilentio and, therefore, the very fact that it had ignored important entry No.111 of the Schedule is sufficient for this Court to ignore the judgment. Hence, there is no merit in the present application and the same is, hereby dismissed, as the salt recovered from the petitioner shall fall under Entry No.111 cojointly read with Entry No.110.