8.The Learned Counsel for the petitioner states that without knowledge that these medicines covered under NDPS Act and should accompany NOC with good intention to help his customers Abroad, he had sold the medicines and sent through post. The medicines before delivery to the persons concern had been detained and no crime attracting offences under Sections 8 (c) r/w 22 (c), 23, 28 and 29 had been committed. As an authorised dealer, the petitioner is entitled to procure these medicines and sell it. The medicines seized did not cross the Territory of India and therefore, Section 28 of the NDPS Act ,which is penal provision for illegal export or import of Psychotropic Substances will not attract. Likewise, Section 29 of the NDPS Act, which deals with conspiracy to commit offence under NDPS Act, will also not attract, since he is the sole person involved in the transporting the medicine to foreign buyers. Since the goods were detained, at the most the petitioner can be prosecuted only for the attempt to export a psychotropic substances under Section 30 of the NDPS Act and not for other Sections. Therefore, the rigor of Section 37 of the NDPS Act will not apply. Since no prima facie case made out as alleged by the prosecution to presume the culpable mental state, the petitioner is not guilty of offences charged. The petitioner has sent the above drugs along with other medicines with good intention and without knowledge that they are covered under NDPS Act and it should accompany NOC issued by CDSCO. He undertakes that he will not commit the said act while in bail. He is in prison since 11/09/2020 and to establish his innocence, he may be set at liberty by granting bail.
