ORDER : Anant S. Dave, J. Rule. Learned APP waives service of notice of rule on behalf of respondent - State of Gujarat. 2. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 [for short, the Code'] in connection with NDPS Sessions Case No. 5 of 2009 registered in the Court of District & Sessions Judge, Vadodara for the offences punishable under sections 9[c] read with 22, 23, 24, 25 read with section 12, Section 27A, 29, 32, B[e] and 38 of the Narcotic Drugs & Psychotropic Substances Act, 1985 [for short, 'NDPS Act']. 3. The case of the prosecution is as under: 3.1 It is the case of the prosecution that on 20.11.2008, Intelligence Officers of Narcotics Control Bureau, Mumbai, received a specific intelligence that two Malaysian nationals named Gunasekaran Pilay and Ravindran Karapaya had come to Vadodara along with their associate by name Richard aged 50 years in a silver Innova car bearing Registration No. MH04DB2466 to transport a part consignment of Methamphetamine manufactured in a factory near Vadodara, under the supervision of Richard. It was further informed that this consignment of Methamphetamine would be transported to Mumbai in an Innova vehicle for being smuggled abroad via Air Route. This intelligence was recorded at 09:10 AM on 20.11.2008 and its copy was furnished to the superiors who endorsed the same and directed a seizure. 3.2 That pursuant to this intelligence a team of officers and subordinate staff attached to both Narcotics Control Bureau, Mumbai and Ahmedabad Units, was informed and two panchs were called to the premises of Special Operation Group, opposite Karelibaug Police Station, Baroda. The raiding team proceeded along with panchas towards Makarpura Maneja Road where the old National Highway No. 8 merged with the bypass highway in order to apprehend those persons. 3.3 It is further alleged that at about 4:30 AM on 21.11.2008 an Innova was seen coming from Makarpura Maneja Road and was stopped in the presence of Panchas. Four persons were found in the vehicle with two sitting on front seats and two sitting on the rear seat. On being asked, the persons on the front seat gave their names as Vijay Parmar [driver] and Revindran Karapaya, and the persons sitting on rear seats gave their names as Richard & Gunasekaran [petitioner]. Four persons were found in the vehicle with two sitting on front seats and two sitting on the rear seat. On being asked, the persons on the front seat gave their names as Vijay Parmar [driver] and Revindran Karapaya, and the persons sitting on rear seats gave their names as Richard & Gunasekaran [petitioner]. A search of the Innova allegedly resulted in the recovery of white crystalline powder packed in four transparent polythene bags which when tested on Drug Testing Kit answered positive for Methamphetamine. A personal search of occupants of Innova resulted in recovery of documents, currency etc. Since the spot allegedly had heavy traffic, the Panchnama proceedings could not be completed there and the entire team proceeded to office of Special Operations Group Karelibaug for continuation of the search operations. 3.4 That at the office of Special Operation Group the seizure panchnama was continued which eventually resulted in recovery of 1.566 Kg. Of Methamphetamine Xie Jing Feng @Richard the co-accused allegedly disclosed that the seized Methamphetamine was collected from a factory named Sakha Organics. This information allegedly disclosed by Richard was reduced into writing and a team of officers along with panchas and Richard proceeded to Sakha Organics to conduct a search. 3.5 That on reaching the factory it was noticed that its gate was closed. The watchman on being asked disclosed the name of Kirit Shah as owner of that factory. The team of officers with panchas entered the factory and on search found 10 beakers containing yellow coloured thick liquid. The ten beakers allegedly containing 30 liters of Methamphetamine were emptied into two plastic gallons and marked as GA and GB. Besides a dark tanned colured substance was found in various trays and on being asked, Richard stated that there were raw and rubbish form of material and that he tried hard to get Methamphetamine but could not succeed. Further when tested this substance did not give any positive result on the drug testing kit. Thus four packets containing 1.566 kg and 30 liters of Methamphetamine, cash, foreign currency other documents were taken over for investigation along with Innova car vide panchnama dated 20.11.2008 and 21.11.2008 drawn at Baroda. 3.6 it is further alleged that the occupants of the Innova including petitioner were interrogated and their statements were recorded under section 67 of NDPS Act. Thus four packets containing 1.566 kg and 30 liters of Methamphetamine, cash, foreign currency other documents were taken over for investigation along with Innova car vide panchnama dated 20.11.2008 and 21.11.2008 drawn at Baroda. 3.6 it is further alleged that the occupants of the Innova including petitioner were interrogated and their statements were recorded under section 67 of NDPS Act. During interrogation the names of one Kirit Shah and Jagdish Vaidya, both directors of Sakha Organics were revealed as the alleged manufacturers of Methamphetamine. The details of ash transactions in between Richard, and Kirit Shah were disclosed and consequently the petitioner was arrested on 21.11.2008 at 11:05 PM. However, the driver of Innova, Vijay Parmar was not arrested and after recording his statement under section 67 of NDPS Act, he was allowed to leave. Vijay Parmar is cited as a witness in the complaint filed before the trial court. The muddamal seized on 21.11.2008 was sent to CRCL, New Delhi for analysis and a positive report for Methamphetamine was sent by the laboratory to the Narcotics Control Bureau, Ahmedabad in the samples analysed. 3.7 That, at the stage of investigations efforts were made to apprehend Kirit Shah and Jagdish Vaidya but they could not be found at their known address. It was later learnt that Kirit Shah was available at Kerala pursuant to which he was apprehended on 17.04.2009. In August, 2009 Jagdish Vaidya surrendered himself before the learned Magistrate at Vadodara and was taken into custody. Statements of Kirit Shah and Jagdish Vaidya were recorded under section 67 of NDPS Act. On completion of investigations a compliant was filed by respondent No. 1. 4. Learned advocate for the applicant inter alia has raised one of the main contentions as to whether the alleged possession of Methamphetamine seized in the instant case is a scheduled X Drug under the Drugs & Cosmetics Act and its Rules would be punishable under the NDPS Act, 1985, as it is covered by Schedule to the Act but not covered by Schedule 1 to NDPS Rules. 5. Learned advocate for the respondent No. 1 - Narcotics Central Bureau and learned APP appearing for the respondent No. 2 State vehemently opposed grant of bail on the ground that the applicant is involvement in heinous crime and if he is enlarged on bail, he would jump the bail and may not be available for trial. 5. Learned advocate for the respondent No. 1 - Narcotics Central Bureau and learned APP appearing for the respondent No. 2 State vehemently opposed grant of bail on the ground that the applicant is involvement in heinous crime and if he is enlarged on bail, he would jump the bail and may not be available for trial. It is further submitted that there is no substance in the submission of the learned advocate for the applicant that the contraband is not a scheduled substance and do not attract the offence. Learned APP further submitted that considering the quantity of contraband and the punishment prescribed for such heinous crime which affects the nation at large, the applicant may not be enlarged on bail. 6. This court had an occasion to deal with similar issue involved in Criminal Misc. Application No. 6042 of 2013 in the case of Parmod Narhari Manjrekar. This Court, while relying on judgment dated 31.01.2013 delivered by a coordinate Bench of this Court [Coram : Hon'ble Ms. Justice Sonia Gokani], in para 4.1 held as under: "4.1 That another co-accused Sujal Vijaybhai Patel had filed successive bail application being Criminal Misc. Application No. 14483 of 2012 under Section 439 of the Code raising various contentions, including that the substance viz. Contraband is not mentioned in Schedule-I of NDPS Rules, 1985 based on the judgment of Bombay High Court in the case of M.V. Henry v. Raviprakash Goyal in Criminal Misc. Application No. 3295 of 2005 and order passed by the Apex Court in Criminal Appeal No. 1845 of 2010 arising out of SLP [Cr.] No. 4135 of 2010. After hearing learned counsels for the parties and considering the provisions of Sections 8, 9, 22 and 76 in the context of definition of Section 2[xxiii] of NDPS Act and Rules 53 and 54 of the NDPS Rules, a coordinate bench of this Court vide order dated 31.01.2013 dismissed the said bail application. Paras 29 to 35 of the said judgment read as under: 29. The Court is conscious of the rigours of Section 37 of the NDPS Act where two conditions which are cumulative and not alternative, are necessary to be satisfied that the accused is not guilty of commission of offence and no recurrence at his end is possible while on bail. The Court is conscious of the rigours of Section 37 of the NDPS Act where two conditions which are cumulative and not alternative, are necessary to be satisfied that the accused is not guilty of commission of offence and no recurrence at his end is possible while on bail. It is also to be noted that exceptions of Section 8 referred to specifically in the provision will not come to the rescue of the present applicant as the present applicant is either not a medical practitioner nor is he having any manufacturing unit nor is he, in any manner, connected with any medicinal preparations. It is also alleged in the complaint itself that surreptitiously and unauthorisedly huge quantity of this psychotropic substances were to be exported. 30. This Court is also made aware of the fact that the psychotropic substances attempted to be exported unauthorisedly would fetch in the international market, huge sum running into crores of rupees (Rs. 436 approximately). As noted in paragraph 12 of this order, Methamphetamine Hydrochloride is a very addictive stimulant drug and is structured similarly to Amphatamine. 31. Section 2(xxiii) explains psychotropic substances as follows: psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule; Undoubtedly, these three drugs find place in the schedule to the Act, but, not in Schedule-I appended to the Rules. 32. Rules 53 and 64 contain general prohibitions in respect of import into and export out of India of the Narcotic Drugs and Psychotropic Substances or manufacturing, selling and consumption or possession or transportation of these drugs or substances specified in Schedule-I of the Rules as mentioned hereinbefore. 33. What is made punishable under this law is the contravention of any provision of this Act or any Rule or order made or conditions of licence granted. Section 8 prohibits export from India of narcotic drugs and psychotropic substances except for medical or scientific purpose that too by way of licence permitted or authorization. In a matter before the Apex Court the drugs which were seized from the person who claimed to be Ayurveda Acharya and otherwise had a licence and had also produced requisite documents complying with the provisions of Section 67A along the application of bail. In a matter before the Apex Court the drugs which were seized from the person who claimed to be Ayurveda Acharya and otherwise had a licence and had also produced requisite documents complying with the provisions of Section 67A along the application of bail. These drugs fell under the purview of Schedule-G and H of the Drugs and Cosmetics Act. Thus, in matter before the Apex Court, exception contained in Section 8 of the Act was found to be applicable. 34. In absence of any licence, permit or for authorisation for medicinal or research purposes either for the purpose of manufacturing or possession or for sale or for import or export of the said psychotropic substances, the case of applicant accused does not fall under the exceptions carved out under Section 8 of the NDPS Act. Section 76(1) read with Section 9 of the Act contemplate making of rules by the Central Government for carving out purposes of this Act and not in contravention thereof which of course would be subject to the provision of Section 8 of the NDPS Rules, 1985 framed and notified pursuant to these provisions of Section 9 and Sections permit and regulate such operations, subject to provision of Section 8. In other words, when rules are made to permit and regulate operations of narcotic drugs and psychotropic substances, they cannot be in contravention of Section 8 of the act and the same need to be construed essentially keeping in mind exception to Section 8. Any other interpretation would make the provisions of the Act subservient to the rules and orders. 35. The question, therefore, would need to be answered that huge quantity of psychotropic substances seized from the accused even when is not mentioned in Schedule-I it would still become an offence under Section 8(C) read with Section 22 and he cannot be enlarged on regular bail for not having fallen under any of the exceptions carved out in the provision itself. Interpretation otherwise than this would render not only the Schedule to the Act otiose but would frustrate the very objective of the Act, particularly keeping in mind huge quantity of psychotropic substance seized from the applicant". 7. The Union of India filed Special Leave to Appeal [Cri.] No[s]. Interpretation otherwise than this would render not only the Schedule to the Act otiose but would frustrate the very objective of the Act, particularly keeping in mind huge quantity of psychotropic substance seized from the applicant". 7. The Union of India filed Special Leave to Appeal [Cri.] No[s]. 4976 of 2006 challenging judgment and order dated 07.02.2006 passed by the High Court of Bombay in CRLA No. 6787/2005 in the case of Pradeep Shivram Dhond & Anr. On 20.04.2007, the Apex Court passed the following order: "Our attention has been invited by the learned counsel to two decisions of this Court; namely, a decision of 3 Judge Bench in Collector of Customs New Delhi v. Ahamadalieva Nodira (2004)3 SCC 549 and subsequent decision of 2 Judge Bench in State of Uttaranchal v. Rajesh Kumar Gupta (2007)1 SCC 355 . Reference was also made of Section 80 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which reads as under: "80. Application of the Drugs and Cosmetics Act, 1940 not barred - The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 [23 of 1940]or the rules made thereunder". In our opinion, in view of the fact that the effect of section 80 requires to be considered, we grant leave and direct the Registry to place the papers before the Hon'ble the Chief Justice for placing the matter before a 3 judge Bench". 8. In absence of any licence, permit or for authorisation for medicinal or research purposes either for the purpose of manufacturing or possession or for sale or for import or export of the said psychotropis substances, the case of applicant accused does not fall under the exceptions carved out under Section 8 of the NDPS Act. Further, this is a case where a huge quantity of contraband was seized and offences are registered under Sections 22, 23, 24, 25 r/w. Section 12, 27A, 28, 29, 32B[e], 38 read with Section 8[c] of the NDPS Act. 9. Considering the serious nature and gravity of the offence and the manner in which the offence is said to have been committed and punishment prescribed for such serious offence, this Court is not inclined to enlarge the applicant on bail. Accordingly, this application fails and is hereby dismissed. Rule is discharged.