IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION NO. 8110 OF 2018 C/w CRIMINAL PETITION NO. 7908 OF 2018 In Crl.P.No.8110 of 2018 Between:
Chukwunanso Ajmamekwe, S/o. Ajmamekwe, Aged 42 years, R/at. 2nd Cross, Maruthinagar, Yalahanka New Town, Bengaluru -560 064.
Permanent Address:
No.32, Ozalla Street, Acharaya Layout, Enugu State, Igbo, Nigeria National. …Petitioner (By Sri. Tejas N., Advocate) And:
State of Karnataka By Kothanur Police, Bengaluru -560 036. ... Respondent (By Sri. K.P. Yoganna, HCGP) This criminal petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.173/2018 registered by Kothanur Police Station, Bengaluru City for the offences p/u/s 8(c), 21(b) and 22(b) of N.D.P.S. Act.
In Crl.P.No.7908 OF 2018 BETWEEN Don K. Thomas, 24 years, S/o. K.C. Thomas, R/at No.32, 1st Floor, 2nd Cross, Post Office Road, Venkataraman Layout, Maruthi Sevanagar, Bengaluru -560 033. … Petitioner (By Sri.S.G. Muniswamy Gowda, Advocate) AND State of Karnataka By Kothanur Police Station, Kothanuru, Bengalur. …Respondent (By Sri. K.P. Yoganna, HCGP) This criminal petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.173/2018 registered by Kothanur Police Station, Bengaluru for the offences p/u/s 8(c), 21(b), 22(b) of N.D.P.S. Act.
These petitions coming on for orders this day, the Court made the following:
ORDER These petitions have been filed by the petitioners/accused Nos. 1 & 2 under Section 439 of Code of Criminal Procedure praying to release them on bail in Crime No. 173/2018 for the offence punishable under Sections 8(c), 21(b), 22(b) of N.D.P.S. Act, Section 14 of Foreigners Act, 1946, Section 5 of Registration of Foreigners Act, 1939 Section 12 of Passport Act, 1967 registered by Kothanur Police Station.
2. I have heard the learned counsel for the petitioners and learned High Court Government Pleader for the respondent/State.
3. The genesis of the case of the prosecution is that on 05.09.2018 at about 7.00 p.m., Police Inspector has deputed constables Eresh and Shekhappa Nayak to trace culprits in old pending cases. When they were on rounds they met an informant and he told that near K. Narayanapura Christ Jayanthi College, a person along with another selling M.D.M.A. and Charas drugs and distributing in small packets. Immediately, the informant and the two police constables went near the college and noticed the accused giving Narcotic Drugs in packets and collecting money from the customers. Thereafter, they returned to the police station and lodged a report and went and collected two Panchas and reached the place at about 7.25p.m. There they found accused Nos. 1 and 2 and were taken to custody. When the accused persons were asked that what they were doing, they said that they are selling M.D.M.A. and Charas. In the presence of Assistant Commissioner of Police the said accused persons were got searched and found one black color bag containing 25 gm. of Charas and 15 gm. of M.D.M.A. and out of accused-1 pant pocket found one white color Samsung Mobile phone, one Micromax Basic mobile phone and cash of Rs.2,500/- which were seized by drawing Mahazar. Subsequently, accused No.2 has also got searched and found 11 gm. of M.D.M.A. and 8 L.S.D paper piece, one touch screen mobile phone and cash of Rs.3,000/- and they were seized under the same Mahazar. A case was registered in Crime No.173/2018.
4. It is the submission of the learned counsel for the petitioners-accused Nos.1&2 that there is clear violation of Section 42 of NDPS Act. As per Section 42 it indicates that the search has to be made immediately after receiving the information. When the said information has got immediately they did not take any action and the case has not been filed. Further, the search has been made not before the Gazetted Officer. They further submitted that Investigating Officer asked the accused-1, whether he intend to be searched before the Gazetted Officer, he told that the search has to be made before the Gazetted Officer or the Magistrate. But, in spite of that the search has been made in the presence of Assistance Commissioner of Police. They further submitted that quantitative and qualitative reports have not been produced within 15 days and 30 days as contemplated in the law. They also submitted even there is a violation of provisions of Sections 52 and 56 of NDPS Act. The quantity which has been seized from each of the accused persons is less than the commercial quantity. They further submitted that the petitioner- accused-1 is suffering from HIV decease and he requires continuous treatment and if he is continued in the jail, it may spread to other accused persons. They further submitted that the petitioner- accused-1 in earlier two cases got acquitted and no other cases are pending. They submitted that by imposing stringent conditions, petitioners may be granted bail and they are ready to abide by any conditions and ready to offer sureties. On these grounds, the learned counsel for the petitioners prayed to allow the petition and to release the petitioners on bail.
5. Per contra, the learned High Court Government Pleader argued and submitted that petitioners-accused are habitual offenders and accused No.1 is involved in two more cases and he is also an accused in Crime No. 253/2012 at Ramamurthy Nagar Police Station, Crime No. 90/2014 at Hennur Police Station and 128/2017 at Yalahanka Police Station. He further submitted, since 2014 he is involved in so many cases including NDPS being a foreigner. If the accused are released on bail, they may abscond and they may not be available for the trial. No cause has been made out for the accused persons to be released on bail. On these grounds he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and also perused the records.
7. It is the contention of the learned counsel for the petitioners that the Investigating Officer has not followed the provision of Section 42 of NDPS Act and it is their further contention that the report has not been received within 15 days from the date of the receipt of the sample. He has also not taken the quantitative and qualitative tests as per the guidelines 1.18 of the Narcotic Control Bureau. The analysis of the drug has to be completed within 15 days from the date of receipt of the sample. For the purpose of brevity, I extract the said instruction which reads as under:-
1.18 Expeditious Test Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings of N.D.P.S. Act, 1985. In many cases the court may refuse to extend Police/Judicial remand beyond 15 days for absence of a chemical report. Accordingly, it is essential that the analysis is completed and the report dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis report dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis be longer time. The results of qualitative test should be dispatched to the officer from whom the samples to received within the aforesaid time limit on the original copy of the Test Memo so that court proceedings can be immediately. In the next 15 days the results of qualitative test (purity of the drug) should also be indicated the duplicate test memo and sent to the officer from who the samples were received.
This proposition of Law has also been interpreted in the case of CHANDRU KUNTHUR RAGHUVEGOWDA vs.
STATE BY INSPECTOR OF CUSTOMS in Criminal Petition No.303/2017 at Para No.19, which reads as under:-
“The report dated January 13, 2017 issued by the Custom House Laboratory, Chennai, shows that the six samples answered the test for presence of Psedoephedrine Hydrochloride. The foot note contained in the report is categorical to the effect that ‘quantitative analysis’ of the sample was not carried out. Thus, there has been infraction of Standing Instruction No.1/88. Compliance with the ‘ Standing Instruction’ is a requirement of law as held by the Hon’ble Supreme Court in the case of Union of India vs. Bal Mukund and others, supra.”
The said interpretation has also been made by this Court in the case of INSPECTOR OF CUSTOMS vs. MS. DAPHIRA WALLANG reported in ILR 2010 KAR 190 at para Nos. 5 and 6 which read as under:-
“5. The object of chemical examination and quantitative analysis is to find out as to whether the accused was in possession of commercial quantity or smaller or less than commercial quantity, so as to know as to what punishment he is liable. If the quantity is of smaller quantity, the punishment is only six months, if it is more than smaller quantity and less than commercial quantity, the punishment is extendable upto 10 years and fine and if it is more than commercial quantity, the punishment is upto 20 years and minimum is 10 years and in case of commercial quantity the investigation can be done upto 180 days.
6. From the provision of the Act it is clear that, the chemical and quantity analysis has to be done at the earliest. Purpose of chemical examination is to find out the contents of Narcotic drug, if the chemical examination is delayed, there is every possibility of substance losing its character and on account of default in doing chemical examination at the earliest, it will result in failure of investigation and to book the accused for the said crime. But it is unfortunate that these matters are not seriously viewed by the authority, and their lapse yield to the benefit of the accused.”
Even the Hon’ble Apex Court in the case of UNION OF INDIA vs. BAL MUKUND AND OTHERS reported in (2009) 12 SCC 161 at para Nos. 36 and 37 has observed as under:-
36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.
37. There is another infirmity in the prosecution case. Section 55 of the Act reads as under:-
“55. Police to take charge of articles seized and delivered.- An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station.”
PW 7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them.”
8. By going through the above proposition of law, by considering the application under Section 439 of Cr.P.C., the Court has to satisfy that there are reasonable grounds for considering that they are not guilty of alleged offences and likely to commit any offences while on bail. I am not having any difference of opinion with regard to said preposition of law laid down by the Hon’ble Apex Court. In the present case on hand, the contention of learned counsel for the petitioner that the instructions 1.18 has not been followed and the report of quantitative and qualitative tests have also not been produced. It is the submission of the learned HCGP that the said seized articles have been sent to FSL and reports have not been received. Under such circumstances, there is clear cut violation of NCB instruction under 1.18. It is the submission of the learned counsel for the petitioners that the proposition of law which also not been complied with Sections 50, 52 and 56 of NDPS Act.
9. As could be seen from the records, whether it is filed or not is the matter which has to be considered at the time of the trial and not at this premature stage, though it is alleged by the learned HCGP that petitioners-accused Nos.1 & 2 are habitual offenders and involved in many cases that aspect has to be considered at the time of conviction.
10. I have carefully and cautiously gone through the Section 37 of NDPS Act and also perused the records.
11. It is the submissions of the learned counsel for the petitioners that petitioner-Accused No.1 in two cases has already been acquitted. It is perused that the drug seized is less than the commercial quantity. Under such circumstances, by imposing stringent conditions, if the petitioners-accused are ordered to be released on bail then it is going to meet the ends of justice.
In the light of the discussions held by me above, petitions are allowed and the petitioners-accused Nos. 1 and 2 are ordered to be released on bail with following conditions:
1. Petitioners -accused Nos. 1 and 2 shall execute a personal bond for a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) each with each two local sureties for the likesum to the satisfaction of the jurisdictional Court.
2. Accused No.1 shall not leave the Country and he should surrender his passport, if it is not surrendered before the jurisdictional court. Accused No.2 shall not leave the jurisdiction of the Court.
3. They shall not tamper with the prosecution evidence either directly or indirectly.
4. They shall not indulge in similar type of activities of selling Narcotic Drugs. If the petitioners are found to be in such activities, the jurisdictional police is at liberty to move the Court for cancellation of bail.
5. They shall regularly attend the trial. If they fail to attend the trial, the prosecution is at liberty to move the Court for cancellation of the bail.
6. They shall mark their attendance once in a month on every first till the trial is concluded to the jurisdictional police.
As the main petition is disposed off, I.A. No. 1/2019 does not survive for consideration. Hence, I.A. No.1/2019 is rejected.
Sd/-
JUDGE BVK