IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRL.P. NO. 6359/2019 BETWEEN:
ABU THAHIR.B @ABDU S/O.ISMAIL AGED 23 YEARS R/O BALOOR HOUSE BERIPADAVU POST BAYARPADAVU VILLAGE KASARGOD – 571 121 … PETITIONER (BY SRI. HASHMATH PASHA, SR. COUNSEL A/W. SRI. KALEEM SABIR., ADVOCATE) AND:
UNION OF INDIA NARCOTIC CONTROL BUREAU BENGALURU ZONAL UNIT BENGALURU – 560 001 REP. BY MR. K.N.MOHAN LEARNED SPECIAL PUBLIC PROSECUTOR BENGALURU – 560 001 ... RESPONDENT (BY SRI. K.N. MOHAN., SPL.P.P) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB NO. 48/1/7/19/BZU REGISTERED BY INTELLIGENCE OFFICER, BENGALURU ZONAL UNIT, BENGALURU FOR THE OFFENCE P/U/S 8(c) R/W 22(c), 23, 28 AND 29 OF N.D.P.S. ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.09.2019 COMING ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY K.N. PHANEENDRA, J. MADE THE FOLLOWING:
ORDER This Criminal Petition is filed by accused No.1 in connection with NCB NO.48/1/7/19/BZU for the offence punishable under Section 8(3) read with Section 22(c), 23, 28 and 29 of the NDPS Act.
2. Heard the learned counsel appearing for the parties and perused the records.
3. The brief facts of the prosecution case are that:
On the basis of a credible information received by the respondent on 13.55 hours, on 15.6.2019, by one Kamlesh Kumar the Investigating Officer to the effect that the main accused person by name Abu Thahir.B. @ Abdu, the petitioner herein along with his associate Mohammad Afzal, likely to arrive in the Bengaluru International Airport. It is also alleged that they will handover a shoulder bag to a lady at the Airport. The shoulder bag contain Methamphetamine concealed inside the whisper pads. The information also revealed that the above persons are coming in a red colour Swift VDO car bearing registration No.KA-30/9810 with one or two other persons. If the car is intercepted, along with other persons drug can be recovered, offenders can be apprehended. Therefore, on registration of a case on 15.6.2019 after receiving the information, the same was informed to the official superiors and the Investigating Officer went to apprehend the accused persons.
4. It is the further case of the prosecution that the NCB Team, went to the Airport at 18.15 hours and found red colour swift car and intercepted the same and thereafter, they found the accused petitioner and other persons along with a lady called by name Kushbu sharma and enquired them and found that the petitioner was carrying a shoulder bag. It is also alleged that they searched the bag after entering a particular house, where the other Narcotic drugs are stored on disclosure of such fact, the police had gone to the house which was located in Austin Town Bengaluru. After entering into the house, the petitioner was asked to un-zip the shoulder bag carried by him, on un-zipping, a pack of green coloured whisper ultra clean pad was taken out and opened, it contained 22 sanitary pads. All the pads are opened and found all the pads polythene pouches containing white crystalline substance called. methamphetamine. They have also conducted a preliminary test for drug detection with the help of their kit. They found that the net weight was found to be 510 grams after taking sample of 5 grams, the same was sealed and seized. Thereafter, a pack of orange coloured whisper choice was taken out from the shoulder bag and it was found containing 5 sanitary pads again from that they found some polythene pouches containing some 572 capsules and these capsules were found to be ‘Pfizer PGN 150’ and after taking samples the said capsules were seized. Thereafter, they also went inside the house, searched the house and found a big, black polythene cover found was weighed and found to be 13.680 kgs of Hashish. Two representative samples each of 24 grams were drawn from this buik contraband and the same were separately packed, sealed with NCB Bengaluru and was marked as Ex.P4. After that, a plastic container was opened and it was found to be filled with black coloured sticky liquid substance giving stringent odour. On enquiry, the petitioner and other accused identified it as Hashish oil which was found weighing 2.850 grams put it in small bottles. Sample was also taken and remaining was sealed and seized. They also found another big black colour polythene bag containing dark green colour leaves and floral parts which were identified as Ganza found weighing 9.050 kgs. And the same was also seized on further searching one white polythene cover was found containing white crystalised substance and on being tested they found Methamphetamine which was weighed and found to be 330 grams in net. After taking out the sample, the remaining 320 grams was seized and sealed. Thereafter, a trolly bag of brown colour was opened and it was found filled with Lyrica capsules of 150 mg. Some of the Lyrica pills were packed in original packing of boxes with each box containing 14 capsules. On counting, 194 strips of capsules, each strip containing 14 capsules totalling 2716 capsules were found all were seized and sealed. In addition to the above, there was a polythene bag containing 1298 number of capsules with the same marking as that of the strips of capsules in the trolly. This marking was Pfizer PGN 150 and the total number of capsules found in the trolly bag was found to be 4014 in number. The Officers also seized the same after taking out the sample. Afterwords, these articles were sent for examination to the FSL and it was found that these items were found to be Narcotic drugs particularly, the test memo showed that the Hashish and Hashish oil exceeded the limits of the commercial quantity i.e., weighing 69.60 grams. The other capsules seized may not be Narcotic drugs, but the remaining items ie., Methamphetamine and Hashish oil have exceeded the commercial quantity. Therefore, the respondents have arrested the accused and investigating the matter.
5. The learned counsel for the petitioner raised an important aspect in this case i.e., the shoulder bag was checked without following the procedure u/s.50 of the NDPS Act and accused person was arrested on 15.6.2019 and produced him on 17.6.2019, the test report i.e., only Hashish oil found in the house exceeded the commercial quantity. The learned counsel also contended that the mandatory provision of section 42 has also not been followed as the information has not been recorded in the registry and not sent to the superior Officer in time and there was no authority as on the date of search and seizure and no authorization has been given. It is further contended that the search was conducted between 6.50 to 11.15 p.m., without recording the grounds, as contemplated under Section 42(2) of the NDPS Act. The Mahazar was also not actually drawn on the spot, but in the Police Station. The officers have not even searched the bags when initially intercepted the accused persons till they reach the Police Station. Search has not been conducted at the place where they found the articles. Therefore, search itself is vitiated by serious procedural irregularities. Hence, he pleaded for grant of bail at this stage.
6. Sri K.N. Mohan, learned Special Public Prosecutor, contended in support of the objections filed by him that there is no dispute with regard to the commercial quantity of one of the Narcotic drug found in possession of the accused. Section 42 of the Act has been strictly complied with and there was no necessity of complying Section 50 because the accused voluntarily opened the zip of the bag and produced the whisper pads before the authorities. Therefore, under the above said facts and circumstances, Section 37 of the Act comes into play and the court has to tentatively come to the conclusion that the accused is not guilty of the offence alleged against him so as to grant bail. Therefore, there is no reason in this particular case to enlarge positively. Therefore, the accused are not entitled to be enlarged on bail.
7. In the above said backdrop, now let me consider whether the mandatory provisions of Section 42 as well as 50 of the NDPS Act is complied with or whether Section 50 is applicable so far as this petitioner is concerned.
8. In a decision reported in (2004) 12 SCC 266 between Sarija Banu @ Janarthani @ Janani & Another, the Hon’ble Apex Court has held that compliance with Section 42 is mandatory and is a relevant fact to be taken into account while considering the bail application. Section 42 of the Act reads as follows:
“42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.”
On perusal of the above said provision, it is clear and mandatory that the Officer on receiving the information from any person, has to record it in writing in the register concerned forthwith and send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). However, if the information which was received when the officer was not in the Police Station, but while he was on the move either on patrol duty or otherwise, and the information calls for immediate action, then he can inform the same over phone to the official superior and proceed to take action in terms of clauses (a) to (d) of Section 42(1) of the Act. In other words, the compliance with the requirements of Sections 42(1) & 42(2) of the Act in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But, in special circumstances, involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. However, the total non compliance with requirements of sub-sections (1) & (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. Therefore, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42 of the Act. But, if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act, whether there is adequate or substantial compliance with section 42 of the Act or not is a matter of fact to be decided in each case. In the above said backdrop, let me consider the present case on hand.
9. The information report is admittedly received by the officer when he was not in the Police station but the information was conveyed only over phone as per the note put up and in the said information it is stated that the information was conveyed to Sri Aravind.M.R., Superintendent of NCB telephonically. After receiving the information on 15.6.2019, he was directed to take necessary action as per law. There is no mention in the said document that there was compliance of Section 42(1) and (2) of the Act and that immediately after receipt of the report, the same was recorded in the registry as contemplated under the said provision and copy has been sent to the concerned officer. The record also shows that, the superior officer appears to have been received this, on 16.6.2019, he has endorsed that he has seen and accorded permission on 16.06.2019. However, by that time, the entire mahazar was drawn on 15.6.2019 itself between 6.15 – 11.15 as noted above. Therefore, as rightly contended by the learned counsel, Section 42 of the NDPS Act has not been strictly complied with. However, this can be proved during the course of trial that actually Section 42(1) has been complied by adducing appropriate evidence before the Trial Court, but if it is seen as it is, the mandatory provision may not be said to have been complied.
10. Now, coming to the second aspect that is Section 42(1) of the NDPS Act. The said provision itself says that the Officer, between sunrise and sunset enters into and search in such building conveyance or place etc., search and seize any of the Narcotic Drug provided that if such an officer has reason to believe that a search warrant or authorization cannot be obtained without giving opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Admittedly, the mahazar was drawn upto 23.15 hours in the night and there is no mention in the mahazar that at what time exactly, they reached the said house and how long they were there and for the purpose of seizure of the said articles. The seizure panchanama was drawn admittedly between 18.15 to 23.15 hours, it was definitely after the sunset and before the sunrise.
11. On looking to the entire mahazar, there is absolutely no recording of such reasons as contemplated u/s.42(1) of the proviso. It is seen from the mahazar itself that at 18.15 hours, the accused persons were intercepted by the police at the Airport and thereafter, they came to the house and at what time the actual seizure was made is not specifically mentioned in the mahazar. Therefore, there is some difficulty in accepting the said mahazar, search and seizure at this stage unless it is explained by the authorities during the course of the trial when the said search and seizure was done whether even before the sunset, this court cannot reach any tentative conclusion at this stage. Therefore, on the basis of the materials available on record, it is clear that there is some violation of Section 42 of the Act.
12. Now, coming to another important aspect with regard to the violation of Section 50 of the Act. Section 50 of the Act reads as follows:
“50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]”
13. As per Section 50 of the Act, some conditions are prescribed as to how the search on persons shall be conducted. In this regard, before adverting to the provision itself, it is worth to refer a decision of the full bench of the Hon'ble Apex Court i.e., reported in (2011) 1 SCC 609 between Vijaysingh Chandubha Jadeja Vs. State of Gujarat, wherein the Hon'ble Apex Court has held thus – “It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right u/s.50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given u/s.0 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.”
14. Whether Section 50 of the Act has been complied with or not is a matter of trial and there is no absolute formula can be laid down. The question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. Though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted officer or the Magistrate, but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavor should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
15. In this particular case, admittedly, the accused petitioner and another and even the said lady were nabbed at the Airport itself, though the respondents have a reasonable belief of these persons carrying a shoulder bag containing drugs concealed inside the sanitary napkin pad etc., but they did not choose to search the said bag at the Airport itself and even after bringing the accused petitioner to a house situated at Austin Town, they did not check the same at the first instance. Panchnama also shows that the proceedings of panchanama was concluded successfully at 23 hours on 15.6.2019. After that, notice u/s.67 of the NDPS was given to both panchas to attend the NCB office to have the say of the offence on 24.6.2019. It is also stated that the panchnama was typed and retrieved from the computer carried out by the NCB team. Therefore, it creates a doubt whether panchanama was actually drawn and whether the police have seized at the spot or else all the things done in the Police Station itself.
16. Even otherwise, the mahazar discloses that the accused petitioner was having a shoulder bag on his shoulder and thereafter, he was asked to unzip the said bag and thereafter, he himself unzipped and produced the articles before the officers and thereafter they are seized. Therefore, it is contended by the learned counsel for the respondent that, there was no actual search of a person but it was search of a bag and seizure was effected. Hence, at this stage it creates a serious doubt whether the said bag was unzipped, searched and seized by the respondent when the said bag was being on the shoulder of the petitioner or else the said bag was kept aside for some time and thereafter the same was unzipped by the petitioner himself in order to enable the respondent to seize the said articles. Therefore, when a doubt is created whether the search and seizure was made on a person or it was from the bag separated from the person, insuch an eventuality, if search was made when the bag was on the person, then Section 50 of the Act has to be complied; if not there was no necessity for compliance of Section 50 of the Act, as rightly argued by the learned counsel for the petitioner.
17. Though this court is of the opinion that there cannot be any tentative opinion with regard to the compliance of Section 50 of the Act or not, nevertheless as noted above, Section 41 and 42 of the Act, have not been strictly complied with by the respondent. Therefore, in view of the decision, reported in (2004) 12 SCC 266 cited above, even at the time of considering the bail petition, the court has to examine the strict compliance of the mandatory provision if the same has not been complied with, in such an eventuality, the rigor of Section 37 of the Act cannot be invoked for the purpose of rejecting the bail.
18. Under the above said facts and circumstances of the case, when some doubtful circumstances are there with regard to the compliance of Sections 41 and 50 of the NDPS Act, benefit of doubt at this stage for the invocation of Section 37 of the Act, has to be given in favour of the accused.
19. Apart from the above, this court has considered some of the above said aspects while releasing the accused No.3 i.e., Khushbhoo Sharma, on bail vide order dated 9.9.2019 in Criminal Petition No. 4706/2019.
20. Considering the nature of allegations against the accused/petitioner herein and also the facts considered by this court, it cannot be said that, the rigor of Section 37 of NDPS Act is applicable and therefore, there is no need for this court to come to any tentative opinion that the accused is not guilty of the offences alleged. Hence, for the above said reasons, the petitioner is entitled to be enlarged on bail during the pendency of the further proceedings. However, as noted above, the compliance of above said two provisions can still be established and proved by the respondent during the course of full dressed trial. Hence, I pass the following: ORDER The petition is allowed. Consequently, the petitioner (A1) - Abu Thahir. B @ Abdu shall be released on bail in connection with Crime No. NCB File No.48/1/7/19/BZU of NDPS Act on the file of Narcotic Control Bureau, Bengaluru City, subject to the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.3,00,000/- (Rupees Three lakhs only) with two solvent sureties for the like- sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission, till the case registered against him is disposed of.
(v) The petitioner shall mark his attendance once in 15 days on any Sunday between 10.00 am and 5.00 pm before the Investigating Officer for a period of two months or till filing of the final report whichever is earlier.
v) If the petitioner violates any of the above conditions, the respondent is at liberty to move for cancellation of bail before the trial Court.
PL* Sd/- JUDGE