IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.5329/2018 BETWEEN :
Moureen Nisha Namara D/o Rugasira Johnage Aged about 29 years Passport No.B1317544 R/o Kasubi Nabulagala Kampala, Uganda.
(By Sri K.S. Vishwanath & Sri Gangadharappa C.C., Advocates) AND :
… Petitioner Union of India Narcotics Control Bureau Bangalore Zonal Unit, Bangalore-560 063, Represented by learned Special Public Prosecutor High Court Building, Bangalore-560 001.
… 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 NCB.F.NO.48/1/7/2018/BZU, Narcotics Control Bureau, Bangalore, for the offence punishable under Section 8(c) r/w Sections 21, 23 and 28 of NDPS Act.
This Criminal Petition coming on for orders this day, the Court made the following:-
O R D E R This petition is filed by the accused under Section 439 of Cr.P.C. praying to release her on bail in NCB.F.No.48/1/7/2018/BZU of Narcotics Control Bureau Bangalore, for the offences punishable under Sections 8(c) r/w. Sections 21, 23 and 28 of NDPS Act.
2. I have heard the learned counsel for the petitioner Sri Viswanath K.S. for Sri Gangadharappa C.C. and the learned Special P.P. Sri K.N.Mohan for the respondent.
3. The gist of the complaint is that on 29.4.2018 at about 9.30 p.m. complainant received a credible information that a lady national of Uganda is carrying huge quantity of Cocaine in her checked in bag by flight from Abu Dhabi Airport to Kempegowda International Airport, Bangalore. The flight is to arrive at Kempegowda International Airport, Bangalore on 1.5.2018 at about 3.15 a.m. Immediately, he visited NCB, Bangalore Office along with the informer and recorded the information in the form of NCB-1 and forwarded the scanned copy to the Superintendent of Hyderabad and with permission he went to the Airport at about 1.45 am. There they secured two panch witnesses and when they were searching along with their team, a lady from Immigration Arrival area in the Airport came at 3.30 a.m. On interruption, the lady was taken to the said place and checked her checked in luggage in the customs area intelligence unit. During search of the said luggage, they found six packets labeled as LUX soap inside it they found light brown coloured powder weighing 900 grams inside plastic pouch inside each of 6 soap wrappers and on testing it, it is confirmed that the substance is cocaine weighting 490 grams and another plastic bottle labeled as Fair Lady extra whitening moisturizing body milk, they found 400 grams light brown coloured powder. On testing the same with test kit, it was confirmed that the substance is cocaine. On search of hand bag of the said lady they found Uganda currency worth Rs.70,000 US Dollar and she was also taking passport, ID card and the same were seized and petitioner was taken to custody. After investigation, the charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner that the investigation has been completed and the charge sheet material has been produced. He further submitted that when the Intelligence Officer received information on 29.4.2.108 he was not in the office and immediately after receipt of information he has not reduced the same into writing as contemplated under law and as such he has not complied with the provisions of Section 42 of the Act. He further submitted that the test kit found, it contained cocaine but subsequent FSL report shows that it is not containing the cocaine. He further submitted that only the quantitative test has been done but the qualitative test has not been done as to what is quantity which was seized. The said fact is very much essential in order to ascertain whether it was small quantity or medium quantity or commercial quantity. If it is not the commercial quantity, then under such circumstances, the petitioner-accused is entitled to be released on bail. In order to substantiate the said contention, he relied upon the decisions in the case of E.Micheal Raj Vs. Intelligence Officer, NCB, reported in (2008)5 SCC 161;in the case of Sami Ullaha Vs. Superintendent, NCB, reported in (2008)16 SCC 471. He further submitted that the entire mixture has not to be considered for the purpose of analysis, but the quantitative test has to be done. By referring to the Notification of the Ministry of Finance, Department of Revenue, he submitted that Sl.No.239 has been issued by virtue of the Notification without their being any enactment or law and the same has been challenged before the Hon’ble Apex Court and in view of the decision in the case of E.Micheal Raj Vs. Intelligence Officer, NCB (cited supra) and other aspects, the Hon’ble Apex Court has referred the said matter to the Full Bench in the case of Hira Singh & another Vs. Union of India & another, reported in (2017)8SCC 162. He further submitted that the petitioner is having valid passport, visa and other material and by imposing some stringent conditions she may be released on bail. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the Special P.P. for the respondent vehemently argued and submitted that immediately after apprehending the accused, kit test has been conducted and at that time it was found that the said articles which have been seized are contraband articles and thereafter the FSL report has also been produced which clearly goes to show that though it does not contain cocaine, the said substance is containing heroin which is a contraband article under the NDPS Act. He further submitted that though quantitative test has not been conducted as per law, heroin which has been found is 250 grams and it will be more than commercial quantity and as such the provisions of Section 37 of NDPS Act would come into picture and the petitioner is not entitled to be released on bail. He further submitted that the petitioner is a foreign national of Uganda and if she is enlarged on bail, she may fly away and she may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have heard the learned counsel for the parties and perused the records.
7. As could be seen from the records, when the checked in luggage of the petitioner has been checked by the Intelligence Officer along with panch witnesses and his staff, they seized three articles weighing 900 grams, 490 grams and 400 grams. Kit test has also been conducted as contemplated under law. Exs.S1, S3 and S5 confirm the presence of diacetylmorphine (heroin), monoacetylmorphine, acetylcodein and caffeine.
8. It is the submission of the learned Special PP that in view of the Notification issued by the Central Ministry, the amendment has been carried to the NDPS Act and the aspects with regard to Sl.No.239 have to be taken into consideration. Whereas it is the submission of the learned counsel for the petitioner that the said matter has been referred to by the Hon’ble Apex Court to the Full Bench and it is not yet decided whether the said notification is valid or not that is the matter which has to be dealt with only after the decision of the Hon’ble Apex Court.
9. On going through the records, the material which has been seized appears to be more than the commercial quantity and accused petitioner is involved in a serious offence of transportation of illegal contraband article under the NDPS Act and if she is released on bail she may abscond and may not be available for trial. In view of Section 37 of the NDPS Act the general principles of bail are not applicable. Power of Court is limited. The Court can release the accused on bail if it is satisfied that these are reasonable grounds to believe that he is not guilty of such offence. With that background if the entire material is taken into consideration, there is material as against the petitioner to hold her guilty and again she may involve in similar offences, as contended by the learned Special P.P. This limitation is from the limitation contained in Cr.P.C. The material seized is also more than the commercial quantity. I have carefully gone through the decisions quoted by the learned counsel for the petitioner. They are not applicable to present fact and circumstances of this case on hand. In the light of the discussion held above, I am of the opinion that this is not a fit case to release the petitioner on bail.
Hence, the petition stands dismissed.
Sd/- JUDGE *ck/-