Ankil Jagdishchandra Kholwadwala vs. Union Of INDIA And Anr

Held

The Court held that both applicants are not entitled to bail. Regarding applicant A3, the Court noted that while co-accused were granted bail, A3 was "hiddenly involved with A6 for procurement of the CBCS for its illicit use." The Court characterized such activities as serious economic offences committed with "cool calculation and are deliberated design to effect and fabricate the whole economy of the country," thus the rigours of Section 37 of the NDPS Act were applicable. For applicant A6, the Court found that his written reply to the Section 67 notice did not initially refer to the details of the license, suggesting that under that license, neither Dr. Paresh Patel nor A3 were entitled to procure such a large quantity of CBCS. The Court also noted that A6 did not produce a copy of the license to justify his supply to A3. Furthermore, the Court found the orders placed by A3 to be vague and suspicious, and the entire payment was made from A3's personal bank account, leading to the "inevitable conclusion" that the CBCS was not supplied for "Therapeutic practice" but for illicit sale. The Court also considered that A6 had supplied CBCS in two other similar crimes, indicating a likelihood of repeating the offence, thus invoking Section 37 of the NDPS Act. The Court explicitly left undecided the question of whether the seized substance constituted a commercial quantity, focusing instead on the applicants' involvement in illicit sale and conspiracy.

Facts

These are two bail applications before the Bombay High Court concerning NDPS Special Case No.132 of 2023. The applicants, Ankil Jagdishchandra Kholwadwala (A3) and Sumit Mayyar (A6), are accused of offences under the NDPS Act, 1985, related to the seizure of 3195 bottles and later 3500 bottles of Chlorpheniramine Maleate & Codeine Phosphate Monocoff-Plus Cough Syrup (CBCS). The prosecution alleges that A3 was involved in procurement and transportation, while A6, proprietor of M/s.Captab Biotec, illicitly supplied the CBCS to A3 under the name of M/s. The G Next Agency, whose GST and drug licenses were cancelled. Both applicants were arrested after their statements were recorded under Section 67 of the NDPS Act. Their bail applications were previously rejected by the Special Court.

Key Issues

1. Whether the seized Chlorpheniramine Maleate & Codeine Phosphate Monocoff-Plus Cough Syrup (CBCS) constitutes a commercial quantity under the NDPS Act, considering the percentage/active content of Codeine is not specified in the Chemical Analyst's reports (Petitioner A3's contention). 2. Whether the applicant Sumit Mayyar (A6) is guilty of offences under the NDPS Act, given his claim of ignorance regarding the cancellation of M/s. The G Next Agency's drug license and the contention that the seized CBCS falls under an exception (Petitioner A6's contention). Petitioner A3 argued for bail on grounds of prolonged incarceration, lack of charge framing, and parity with co-accused who were granted bail. Petitioner A6 argued that he supplied the CBCS after verifying the drug license and other relevant documents, and that the seized CBCS falls under an exception, thus he is not guilty. The Revenue (Union of India) contended that A6 was involved in the illicit sale of commercial quantities of CBCS, that the orders placed by A3 were vague and suspicious, and that payments were made from A3's personal account, indicating illicit sale rather than therapeutic practice. The Revenue also argued that A6 is likely to repeat the offence, invoking Section 37 of the NDPS Act.