IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.7374/2018 BETWEEN :
Mrs. Grace Rai @ Rose D/o Eric Rai W/o Robert Belho Aged about 35 years R/at Opposite Bus Stand Jyothi Nagar, Darjeeling West Bengal-734 005 Now R/at T.C.Palya, K.R.Puram Bengaluru-560 060.
… Petitioner (By Sri Hashmath Pasha, Senior Counsel for Sri Hashmath Pasha & Associates, Advocate) AND :
Intelligence Officer Narcotics Control Bureau Bengaluru Zonal Unit Office at Kattigenahalli Bagalur Main Road, Yelahanka, Bengaluru-560 064 … Respondent (By Sri K.N.Mohan, Special Public Prosecutor) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in case NCB.F.NO.48/1/14/2018/BZU on the file of respondent NCB, Bangalore Zonal Unit, Bangalore, which is pending on the file of the Hon’ble XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases (CCH-33), Bengaluru for offences under Sections 8(c) R/w. Sections 21, 22, 28 and 29 of NDPS Act.
This Criminal Petition having been heard and reserved on 05.03.2019 coming on for pronouncement of orders this day, the Court made the following:-
O R D E R The present petition has been filed by the accused under Section 439 of Cr.P.C. to release her on bail in NCB.F.No.48/1/14/2018/BZU on the file of NCB, Bengaluru, pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases (CCH-33), Bangalore, for the offences punishable under Sections 8(c) r/w. Sections 21, 22, 28 and 29 of NDPS Act.
2. I have heard Sri Hashmath Pasha, learned Senior Counsel appearing for the petitioner-accused and Sri K.N.Mohan, Special PP for the respondent-NCB.
3. Brief facts of the case are that on 1.8.2018 an information was received by the respondent-NCB to the effect that one lady by name Grace Rai @ Rose is travelling from Mumbai to Bengaluru in SRS Travels Bus bearing Regn.No.KA-01-AF-0551 and she is likely to be in possession of substantial quantity of cocaine and other drugs in her hand bag and she is likely to get down at Kalasipalya Bus Stop. Immediately the Investigating Officer recorded the information in the form NCB-1 information report and submitted the same to his Superior Officer and after securing his staff and panch witnesses he reached Tumakur and were waiting for the surveillance of the said bus near the tollgate. At about 3.45 p.m. they intercepted the said bus by showing their identity to the driver and conductor and came to know that one lady by one Grace Rai @ Rose was travelling in the said bus. They also kept surveillance on the said seat where she was sitting and travelling the said bus. Thereafter, the said bus reached the last stop at Kalasipalya at about 5.40 p.m. and the said suspecting lady was about to get down and at that time, they intercepted her in the presence of independent witnesses and after showing the identity when she was enquired, she told that she is not possessing any ID card. She was found in possession of brown colour handbag. She was informed that her bag is going to be searched in the presence of independent witnesses for which she agreed and in the said bag on search, they found three noodle packets and on examination of the said three noodle packets they found that two packets were containing cocaine and another packet containing Ketamine drug. Each one of them was weighing 100 grams. They were seized by drawing a mahazar after taking the sample. On the basis of the said complaint, a case has been registered.
4. It is the submission of the learned Senior Counsel that already the charge sheet has been filed. The quantity of cocaine and Ketamine found in the possession of the petitioner-accused is only to the extent of 100 grams each and it is not a commercial quantity and as such the provision of Section 37 of NDPS Act is not applicable. He further submitted that the quantitative and qualitative tests have not been conducted at the time of seizure of the said articles. He further submitted that though in the complaint, it has been mentioned that the information has been recorded in Form No.1, in the panchanama no crime number has been given, that itself shows that no such case has been recorded immediately after the information and as such it is hit by Sections 154 and 157 of Cr.P.C. He further submitted that the provisions of Sections 42 and 52 of NDPS Act have not been followed. On humanitarian consideration the power of the High Court under Section 439 of Cr.P.C. to grant bail is not eroded or affected by the provisions of the NDPS Act. If the Court is satisfied that there are reasonable grounds, the accused can be released on bail. In order to substantiate his said contention, he relied upon the decision in the case of Syed Abdul Ala Vs. Narcotic Control Bureau, reported in ILR 2003 KAR 474. He further submitted that as per the Standing Instructions No.1/88 of Narcotics Control Bureau, New Delhi, the qualitative test has to be done within 15 days and quantitative test has to be done within 15 days thereafter. If the said mandate is not followed, then under such circumstances, the accused is entitled to be released on bail. In order to substantiate his said contention, he relied upon the decision in the case of Chandru Kunthuru Raghuvegowda Vs. State by Inspector of Customs CIU, Bengaluru, reported in ILR 2017 KAR 4053 and in the case of Union of India Vs. Bal Mukund & others, reported in (2009)12 SCC 161. He further submitted that the compliance of Section 42 of the NDPS Act is mandatory and the said fact has to be taken into consideration while considering the bail application. In the case on hand, there is utter failure of following the provisions of Section 42 of the NDPS Act. He further submitted that the punishment is based on content of the offending drug. If there is a mixture, then under such circumstances, qualitative test is the determining factor and only after qualitative test, the accused can be convicted. In the case on hand, the petitioner-accused was not in possession of more than the commercial quantity. Under such circumstances, the petitioner- accused is entitled to be released on bail. He further submitted that the Investigating Officer is carrying out the search and seizure under Section 41(2) of the NDPS Act. He was doing so by exercising the power under Sections 100 and 165 of Cr.P.C. If there is no strict compliance with the said provisions, the search would per se be illegal and the benefit has to be given to the accused. In order to substantiate the said contention, he relied upon the decision in the case of State of Punjab Vs. Balbir Singh, reported in (1994)3 SCC 299. He further submitted that the officer on receiving information records the same in writing and sends a copy immediately to his superior before taking action in terms of Section 42 of the NDPS Act. But in the instant case, no such steps have been taken and as such the entire proceedings vitiate. In order to substantiate his
(2009)8 SCC 539. He further submitted that if Standing Instructions No.1/88 of Narcotics Control Bureau is not followed, it cannot be said that the seized sample is contraband and a commercial quantity. In order to fix the quantity the qualitative test must also be held as contemplated under law. Then only the rigorous of the provisions of Section 37 of the NDPS Act can be applied. In order to substantiate the said contention, he relied upon the decision in the case of Sami Ullaha Vs. Superintendent, Narcotic Central Bureau, reported in (2008)16 SCC 471. He further submitted that in the case of E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008) 5 SCC 161 it is held that the drug was dissuasive for determining quantum of sentence whether it is a small, intermediate or commercial quantity. The same has not been overruled and even the same has been subsequently followed for the interpretation of Section 21 of the NDPS Act and as such the decision in the case of E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau (cited supra) is binding on the Courts. In order to substantiate the said contention, he relied upon the decision in the case of Hira Singh & another Vs. Union of India & another, reported in (2017)8 SCC 162. He further submitted that the power under Section 439 of Cr.P.C. can be considered even on humanitarian ground. The accused-petitioner is having a small kid and she is ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned Special PP by substantiating his objections, submitted that there is a bar under Section 37 of the NDPS Act and bail cannot be granted to the accused-petitioner. He further submitted that the provisions of personal search and violation are not attracted. No personal search has been made and the contraband articles were seized from the handbag of the accused-petitioner. He further submitted that the provisions of Section 42 of the NDPS Act have been complied, Gazetted Officer was present and the said contraband articles were seized by drawing a mahazar. He further submitted that the seized articles are cocaine and Ketamine drug. The kit test has also been satisfied. The accused-petitioner is not having any permanent address and the one which has been furnished is a fake address. Under such circumstances, she is not entitled to be released on bail. If the petitioner is released on bail, she may abscond and she may not be available for trial. 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 perused the records.
7. On close reading of the contents of the complaint and other material, it would indicate that the petitioner- accused travelled in SRS travels bus and alighted at Kalasipalya Bus Stand. When search was done, the petitioner-accused was in possession of three noodles packets. Two packets were containing cocaine and another packet was containing ketamine drug. The ketamine substance which was seized is to the extent of 100 grams and even the cocaine which has been seized was also weighing 100 grams. The said quantity of contraband articles which have been seized from the possession of the petitioner is not a commercial quantity. Therefore, restrictive provisions of Section 37 of the NDPS Act will not come in the way of releasing the petitioner on that ground. Even as could be seen from Standing Instructions No.1/88 of Narcotics Control Bureau, it enumerates that the analysis of the contraband article has to be completed within 15 days from the date of receipt of the sample and the quantitative analysis has to be completed within 15 days thereafter. If the said mandatory provision is not followed, then under such circumstances, it is very difficult for the Court to come to the conclusion that the seized article is a contraband article and it cannot be analyzed as to what is the quantity and quality of the article. Thus, there has been infraction of Standing Instructions. When there is infraction of Standing Instructions, the provisions of Section 37 of the NDPS are not applicable and this petition can be considered within the parameters of Section 439 of Cr.P.C. Already the investigation has been completed and charge sheet has been filed. Under such circumstances, the petitioner- accused is entitled to be released on bail. The only apprehension expressed by the learned Special PP is that the petitioner-accused is not having any permanent avocation or residence and if she is released on bail, she may abscond and she may not be available for the trial. However, the said apprehension can be safeguarded by imposing reasonable restrictions on the petitioner- accused. Taking into consideration the above said facts and circumstances that too when the alleged offences are not punishable with death or imprisonment for life, the petitioner-accused deserves to be enlarged on bail.
Accordingly, the petition is allowed and accused- petitioner herein is enlarged on bail in NCB.F.No.48/1/14/2018/BZU on the file of NCB, Bengaluru, pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases (CCH-33), Bangalore for offences punishable under Sections 8(c) r/w. Sections 21, 22, 28 and 29 of NDPS Act, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.5,00,000/- (Rupees five Lakhs only) with two local solvent sureties for the like sum to the satisfaction of the trial Court.
ii) She shall surrender her passport before the jurisdictional trial Court.
iii) She shall be regular in attending the trial.
iv) She shall not tamper with the prosecution witnesses or evidence directly or indirectly.
v) She shall not involve herself in similar type of criminal activities.
vi) She shall not leave the jurisdiction of the trial Court without prior permission. If she wants to leave, she has to give her residential address before the jurisdictional Court.
vii) She shall mark her attendance on 1st of every month before the jurisdictional police between 10.00 a.m. and 5.00 p.m.
Sd/- JUDGE *ck/-