New Delhi, Dec 4 - Denying bail to a technocrat arrested for facilitating online drug trafficking, the Supreme Court has said a telecommunication service provider would lose his legal immunity from prosecution if he misuses his services for such crimes.
A bench of Justice S.B. Sinha and Justice Harjit Singh Bedi gave this ruling Monday, while denying bail to Sanjay Kedia, the owner of two Kolkata-based IT firms, Xponse Technologies Ltd (XTL) and Xponse IT Services Private Limited.
Kedia was arrested by the Narcotics Control Bureau (NCB) in February for facilitating trafficking of banned contrabands phentermine and butalbital in the US through a host of websites launched by his two firms in the names of brotherspharmacy and LessRx.
'We find that the appellant (Kedia) and his associates were not innocent intermediaries or network service providers as defined under Section 79 of the Information Technology Act,' said the bench.
'Their business was only a facade and camouflage for more sinister activity of drug trafficking. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under the Technology Act itself,' the bench said.
Kedia had approached the apex court for bail after his four appeals for bail had been turned down - two by a Kolkata trial court and another two by the Calcutta High Court.
Dismissing Kedia's bail plea, the court rejected senior counsel K.T.S. Tulsi's argument that the NCB had no evidence to prove that his client used his network services for arranging the supply of banned psychotropic substances online or was involved in trading them.
Tulsi contended that his client was a mere intermediary providing telecommunication services and was protected against prosecution under Section 79.
The bench, however, agreed with Additional Solicitor General Vikas Singh's argument that a person could be guilty without personally handling a psychotropic substance, and the evidence collected so far showed that Kedia was a facilitator between buyers and certain pharmacies either owned or controlled by him.
Singh argued that Section 79 could not 'by any stretch of imagination guarantee immunity from prosecution under the provisions of the Act' to a person like Kedia.