IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRL.P. NO.4579/2019 BETWEEN:
IRENEOMOIBE @ IRYAN D/O. LATE OMOIBE AGED ABOUT 25 YEARS R/AT. ROOM NO.305 SEC.34A, NIVAAN RESIDENCY KHARGHAR MUMBAI – 410 210.
(BY SRI. N.TEJAS, ADVOCATE FOR SRI. YATHATHESHAM, ADVOCATE) AND:
UNION OF INDIA NARCOTIC CONTROL BUREAU BANGALORE ZONAL UNIT BANGALORE – 560 001.
(BY SRI. K.N. MOHAN, SPP) … PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.NCB FILE NO.F/48/1/1/19/B2U ON THE FILE OF RESPONDENT UNION OF INDIA/NARCOTIC CONTROL BUREAU, BENGALURU ZONAL UNIT, BENGALURU, 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 THE OFFENCES UNDER SECTION 8 R/W 21 AND 29 OF NDPS ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.08.2019 COMING ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The respondent – Narcotic Control Bureau (hereinafter referred to as ‘NCB’ for short), have registered a case against the petitioner herein for the offence punishable under Section 8 read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS’ Act, for short) in NCB F No.48/1/1/2019.
2. I have heard the arguments of the learned counsel for the petitioner and the Special Public Prosecutor for respondent – State and carefully perused the entire records.
3. Before adverting to the grounds urged in this case by the petitioner’s counsel and as countered by the respondent’s counsel, it is just and necessary to have the brief facts of this case:
On 17.01.2019 at about 11.30 hours, the respondent NCB have received a credible information that one Nigerian National, a lady by name Omoibe @ Iryan (petitioner herein), aged around 25 years, was traveling from Mumbai to Bengaluru in SRS Travels Bus bearing Registration No.PY-01/CC-1357, is in possession of substantial quantity of Cocaine, a Narcotic drug and she is likely to get down at Kalasipalya, bus stand, Bengaluru. Immediately, the respondent NCB with sufficient staff, went near Nelamangala toll gate and intercepted the SRS bus around 14-15 hours and on surveillance over the said lady in the bus, they showed their identity cards to the driver and conductor of the said bus. The NCB Officers also requested the conductor of the said bus to be an independent witness. After checking the list of passengers in the bus, it is confirmed that one Nigerian lady (petitioner herein) was traveling in seat No.16L. The NCB have waited till the bus reached last stop around 17.30 hours and thereafter, when the said lady about to get down from the bus, at that time, she was intercepted by NCB team in the presence of the independent witnesses. On asking, she has introduced herself as “Irene Omoibe @ Iryan” and identified herself as a Nigerian. Upon asking for her Identity card or passport, she said that she does not possess any ID card and also she does not possess any valid passport with her. The NCB officials informed her about the information received by them. On inquiry, though initially she said that, she did not possess any Narcotic drugs, but when she was asked to open her black colour hand bag, she has admitted that there is Cocaine concealed in her bag but due to fear of getting caught she did not reveal it at the first instance and showed four ball shaped packets wrapped with brown colour adhesive tape containing Cocaine kept inside her bag. She has also told the NCB police that she has to deliver the said Cocaine to one Victor and his two associates named Kenneth Jideofol and Marwan Faisal Mohammad of Kammanahalli. As per the information, the NCB team also visited the said spot i.e., Kammanahalli as the said lady took them to that place and there, the police found two persons sitting inside the silver coloured car parked on the road near the signal next to their KFC Kammanahalli. Thereafter, the NCB team also intercepted the car and taken them into their custody. On the voluntary statement made by them that they were standing there for the purpose of receiving Cocaine – a Narcotic drug from that lady.
4. Thereafter, the said lady was brought back to the NCB BZU office and decided to carry out further proceedings. On asking the said lady i.e., the petitioner herein stating that they would like to search the bag, but she voluntarily accepted to open the bag and in fact, she opened her bag and produced four ball shaped packets wrapped with brown colour adhesive tape containing Cocaine and handed over the same to NCB team in the presence of two independent witnesses. The NCB Police, who have with them the Field Drug Detection Kit, opened the ball shaped packets and found white colour powder substance which was in the said balls and they tested the white colour powder to which each of them gave positive result as Cocaine. Thereafter, they removed five (5) grams from each of the packet and weighed the total Cocaine excluding the weight of the polythene bag and found out to be 400 grams (commercial quantity). However, two samples of five (5) grams each were drawn from the pouch for the purpose of sending them to the qualitative analysis and thereafter, they have seized the said items from the petitioner. The qualitative analysis is available before the court to show that the said four balls contained Cocaine.
5. The learned counsel for the petitioner strenuously contends that the procedure followed by the NCB is not proper and correct. There is no proper search and seizure of the article as contemplated u/s.50 of the NDPS Act. As per Section 52 of the Act, a lady has to be arrested and searched by another female Police Officer, but the said mandate of law has not been followed. He has further contended that only qualitative analysis has been made, but no quantitative analysis has been made and thereby violated the circular issued by the competent authorities in No.1/88.
6. It is also contended by the learned counsel for the petitioner that in view of the decision of the Hon’ble Apex Court reported in (2017) 8 SCC 162 between Hira Singh and another and Union of India & another and also in E.Micheal Raj’s case (2008) 5 SCC 161, if the qualitative and quantitative analysis of the substance seized is not produced, it would be fatal to the prosecution case. The quantitative and qualitative analysis has not been obtained as per the standing instructions issued by the NCB, New Delhi vide Standing Instruction No.1/88 within 30 days. Therefore, the entire proceedings are vitiated. Hence, the petitioner on that technical ground itself, entitled to be enlarged on bail.
7. Per contra, the learned counsel appearing for the respondent – NCB submitted in respect of Standing Instruction No.1/88 that though there are guidelines, but the respondent is still had an opportunity to prove the quantity of the seized articles at the time of trial. Therefore, an opportunity requires to be granted to the respondent. He has further contended that as there was no actual search, as the petitioner herself opened her bag and produced the said contra band articles, and thereafter, seizure was effected. Therefore, there was no violation of any provision particularly Sections 50 and 52 of the NDPS Act. Therefore, he contends that there is no reason to release the accused on bail because Section 37 of the NDPS Act comes into play and there is sufficient prima facie material to show the involvement of the petitioner into the crime. Hence, he pleaded for dismissal of the Petition.
8. Before adverting to the above said grounds urged, it is just and necessary to have the brief look at the decisions cited by the learned counsel for the petitioner and the respondent. In a decision reported in (1998) 8 SCC 534 between Namdi Francis Nwazor and Union of India and another, the Hon’ble Apex Court has made an observation at paragraph 30 that: – “3. On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub- section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. …..
It is further observed that we must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found there from, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case.”
9. Relying upon the above said decision, the learned counsel submitted that in this case also, the petitioner’s bag was searched and thereafter, Cocaine a contraband article alleged to have been seized and she was not actually searched by any female police. Therefore, the procedure has not been followed, on that ground also, the accused is entitled for grant of bail.
10. Of course, Section 37 of the NDPS Act says that twin- conditions have to be adhered to by the court while dealing with the parameters of Section 439 of Cr.PC. The NDPS Act is an Act enacted with an object to make stringent provision for control, regulation and operation relating to NDPS Act. It is a special enactment, Section 37 of the Act, states that a non-abstante clause and is in negative terms limiting the scope and applicability of the provision of criminal procedure for bail. The non abstante clause with which Section 439 of Cr.PC., should be given with true manner and clearly it is intended to restrict the power to grant bail. The power to grant bail under any of the provisions of Cr.p.c. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.
11. Section 37 of the NDPS Act, postulates the following conditions:
“37. Offences to be cognizable and non- bailable – (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences u/s.19 or Section 24 or Section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless – (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”
12. Therefore, it is clear that Section 37(b)(i) & (ii) of the Act are the specific limitation prescribed under the provision i.e., the Public Prosecutor has to be given an opportunity to oppose the application and secondly, the court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.
13. In this case, the Public Prosecutor has been notified and opportunity was given. The Court has to examine whether there are reasonable grounds for believing that the accused is not guilty of such offence at this particular time. If the court is of the opinion that there are sufficient materials prima facie establish the case against the accused, in such an eventuality, the petitioner is not entitled to be enlarged on bail.
14. However, the non compliance of mandatory provisions are also to be taken into consideration by the courts while dealing with the bail matters particularly u/s.37 of the Act. If the mandatory provisions are not strictly followed, if it would otherwise prejudice the accused, in such an eventuality, the rigor of Section 37 of the NDPS Act will be diluted in such an eventuality, the accused may be entitled to be released on bail. Bearing in mind, the court has to examine the above said grounds raised by the learned counsel.
15. The first ground as noted above with reference to search and seizure, according to the learned counsel has not been done, according to the mandatory provisions.
16. As I have already narrated, the factual matrix of the case, the NCB Police though they have taken the accused to their physical custody, have not searched her at any point of time in the SRS Bus or immediately, after she got down at Kalasipalya bus stand. It is very much clear in the panchanama drawn in the presence of panch witnesses that they only asked whether she could be searched by any officer in the presence of any Gazetted Officer and she refused for the same but she voluntarily opened her bag and produced the contra band articles i.e., four balls type packets containing Cocaine. There are two different connotations with reference to search and seizure. If there was a search as such and if there was any reasonable opportunity to produce by the accused or if the accused should be searched in the presence of a Gazetted Officer, then only Section 50 and 52 of the Act will come into play. If on request by the police without there being any force, coersion or search, the accused voluntarily produces the contra band articles, in such an eventuality, in my opinion there need not be any further search of the accused.
17. In this particular case, the accused-petitioner herself has opened the bag, took out four ball shaped packets wrapped in brown colour cover and thereafter, those were seized. Virtually, there was no search of the bag by the NCB officials. It was a seizure in the presence of the panch witnesses. Therefore, it cannot be said at this stage, that there was any violation of mandatory provisions under NDPS Act, so as to dilute the rigor of Section 37 of the Act.
18. Another important aspect arose before this court is with reference to non following of the guidelines of Circular No.1/88. Of course, Circular No.1/88 prescribes that within 15 days, the qualitative analysis has to be made and within 30 days, the quantitative analysis has to be made for the purpose of ascertaining whether the accused had the contra band Narcotic drug article which crossed the commercial quantity. According to the NDPS Act itself, the commercial quantity should exceed 100 grams so far as the Cocaine is concerned. Therefore, there is no dispute so far as this aspect is concerned. But out of four ball shaped packets, two samples of 5 grams each of Cocaine has been removed for the qualitative analysis but quantitative analysis report has not been produced before the court.
19. In this background, the learned counsel relied upon a ruling of the Hon’ble Apex Court reported in 2009(12) SCC 161 between Union of India Vs. Bal Mukund & Others wherein at Head Note D. that – “S.55 and Standing Instruction 1/88 – Procedure for taking samples – Compliance with – Instructions providing procedure for taking adequate quantity as samples – Held, it being requirement of law, to be complied with scrupulously – Nothing shown whether adequate quantity from each bag was taken – No evidence as to which of the seized bags sent for analysis and whether contraband was found in them – Held, these are infirmities in prosecution case.”
20. The learned counsel submitted that taking sample for qualitative and quantitative analysis is a legal requirement which has not been done in this case also. Of course, there is some infraction in taking the sample, but the court has examined in this context that, the articles were actually seized in the presence of panch witnesses after detecting the contra band article contained Cocaine to the extent of 400 grams by testing the same with the help of Field Drug Detection Kit. Of course, the panch witnesses and the NCB Officers who have signed the Mahazar have categorically noted in the Mahazar that the said four balls contained 400 grams of Cocaine and out of those four balls by using the Field Drug Detection Kit, they have ascertained that those contained Cocaine. The said powder answered positive result to Cocaine. Therefore, at this stage, though there is some infraction with regard to sending of the sample for the quantitative analysis, but still the mahazar discloses that there was 400 grams of Cocaine in possession of the accused was detected, through the Field Drug Detection Kit, which prima facie establishes at this stage the commercial quantity of a narcotic drug in possession of the accused petitioner. Therefore, in my opinion, an opportunity has to be given to the prosecution to establish that the accused possessed the contra band article exceeding the commercial quantity. More over the above said decision was rendered on merits of the case after detail trial had been conducted by the trial court. More over, the above said decision was rendered on merits of the case after detail trial had been conducted by the trial court.
21. In the above context it is worth to refer to a decision of Hon’ble Apex Court reported in (2000) 9 Supreme court Cases 549, between SUPDT, NARCOTICS CONTROLS BUREAU CHENNAI V/S R. PAULSAMY. Where in the Apex court has observed thus:-
“Non compliance with certain provisions of the act-Bail application- Factors to be born in mind- Respondent and his wife prosecuted under section 8 C, 21, 27A, 28 and 29 of the NDPS Act, and under section 193 and 1120B of Penal Code. High court granting bail on the ground of non-compliance with section 52 and 57 of the Act:- Having regard to the provisions of section 37 of the Act: Held, it would be too early to take into account and judge, the matter regarding non-compliance with the formalities during the bail stage. Since recording of findings under section 37 of the act was a sine-qua non for granting bail under the Act. The minimum facts the court should have taken into account was the factual presumption in law that the official acts by the officers have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the court.”
22. In this case also the factual proof in the Mahazars showing commercial quantity has been recovered from the accused by the officers while discharging their duties has to be rebutted during the trial.
23. Under section 37 of the Act, as noted above, the court has to tentatively make an evaluation to find out that, the accused was not guilty for the purpose of granting bail. If any doubt arises, in such an eventuality, an opportunity should be given to the prosecution to establish the same. In this particular case also, the quantitative analysis is also detected i.e., the entire 400 grams contained Cocaine and out of that, 5 grams was taken out in the presence of the panch witnesses. When such prima facie material is available, it cannot be said that merely because quantitative analysis report has not been received, in any manner takes away the test conducted by the NCB officials by using the Field Drug Detection Kit tentatively and that the pouches contained 400 grams of Cocaine and out of that 5 grams of each were taken for the purpose of qualitative analysis.
24. Looking to the above said facts and circumstances of the case, I do not find any strong reasons at this stage to come to a conclusion that accused is not guilty of the offence alleged against her. Therefore, she is not entitled to be enlarged on bail. Hence, the Petition deserves to be dismissed.
Accordingly, the Petition is dismissed.
PL* Sd/- JUDGE