R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.4448/2019 BETWEEN :
SHIVARAJ URS S/O RAMACHANDRAN URS AGED 37 YEARS R/AT VILLA NO.24 AWHO, P-6, ARMY LAYOUT BILLAMARANAHALLI BANGALORE-560 057 (NOW IN JUDICIAL CUSTODY CENTRAL PRISON BANGALORE) ... PETITIONER (BY SHRI. HASHMATH PASHA SENIOR ADVOCATE FOR SHRI. KALEEM SABIR, ADVOCATE) AND :
UNION OF INDIA NARCOTIC CONTROL BUREAU BANGALORE ZONAL UNIT BANGALORE-01 (REPRESENTED BY LEARNED SPECIAL PUBLIC PROSECUTOR) HIGH COURT BUILDING BANGALORE-01 ... RESPONDENT (BY SHRI. K.N. MOHAN, SPL.P.P;
SHRI. MADHUKAR M. DESHPANDE, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB FILE NO.48/1/6/19/BZU OF NCB, BANGALORE ZONAL UNIT, BANGALORE FOR THE OFFENCE P/U/S 8 R/W 22,28,29 AND 32b(a) OF N.D.P.S. ACT.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.09.2019 COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:-
ORDER This petition under Section 439 of Cr.P.C. seeking bail, is filed by accused No.2, alleged of offences punishable under Sections 8, 22, 23, 27A, 28, 29 and 32B(a) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), in NCB File No.48/1/6/19/BZU of Narcotic Control Bureau, Bengaluru Zonal Unit, Bengaluru.
2. Shri.Hasmath Pasha, learned Senior Advocate for petitioner, urged following grounds in support of this petition:
(a) that petitioner was kept in illegal detention from 1st May 2019 till he was produced before the learned Special Judge;
(b) the garage premises from where contraband was allegedly recovered was not in petitioner’s possession;
(c) no FIR has been registered and no case diary is maintained by the NCB;
(d) Panchanama dated 1st May 2019 conducted at 22.00 hours is contrary to law;
(e) ‘Ketamine Hydrochloride’ is not a drug under the NDPS Act but finds it’s place in Drugs and Cosmetics Act 1940;
3. Amplifying the grounds he made following submissions:
prosecution’s case is, NCB received a source information at 15.00 hours on 30th April, 2019 that petitioner would cross ‘golden arrow fitness club’ near ‘Coffey Mane’, Rajarajeshwari Nagar in his black colour ‘Toyota Corolla’ Car bearing registration No.KA-03 MD-7250. He would carry and deliver huge quantity of ‘Ketamine’ to one or two receivers near Maurya Hotel, Ananda Rao Circle, Bengaluru. At around 19.15 hours the car crossed the point of surveillance near ‘Golden Arrow Fitness Club’. The NCB team followed the car. The car stopped near Movie Land Theatre. Petitioner opened the boot of the car and handed over a red- coloured trolley luggage bag to the person waiting and immediately got into the car. The NCB officials stopped the car and asked petitioner to come out and co-operate. Instead, petitioner accelerated his car and sped away. The person who received the bag was apprehended and he identified himself as J.Kannan;
on the following day, the Toyota car was seen near BBMP Office, 5th Main Road, Yelahanka Satellite Town. NCB team reached the said place at around 11.00 hours. After about an hour petitioner came near the car. NCB officials issued a notice under Section 50 of NDPS Act, conducted a search and drew a panchanama at 13.30 hours.
NCB officials seized all material available with him including a key. NCB officers searched petitioner’s house at 22.00 hours. It is stated in the panchanama that petitioner opened the garage by using a ‘key’. Since petitioner was in NCB’s custody right from the time he was intercepted on 1st May 2019, he could not have had any key with him. Therefore, entire search and seizure operation with regard to recovery of alleged contraband is vitiated.
According to prosecution, petitioner was arrested on 3rd May 2019 and after his arrest ‘Jama Talashi’ was conducted. It is recorded that nothing was found on petitioner’s person during ‘Jama Talashi’. If nothing was found on petitioner’s person, the logical conclusion must be that the arrest memo was not served upon him, as otherwise the same would have been recorded in ‘Jama Talashi’. Thus, petitioner was detained and continued to remain in illegal custody of NCB from 1st May 2019 till he was produced before Court.
4. Shri.Hasmath Pasha relied upon following authorities:
Manoj Vs. State of M.P. (1999)3 SCC 715 (paragraphs No.9 to 13) and submitted that since petitioner was not produced before the Court within 24 hours from the time of his detention, prosecution cannot press for further detention.
K.A. Abbas Vs. Satyanarayana Rao ILR 1992 KAR 3456 (paragraph No.11) and submitted that High Court has jurisdiction to grant bail even under writ jurisdiction while considering a Corpus writ petition.
Nirmal Singh Pahlwan Vs. Inspector, Customs House, Punjab (2011)12 SCC 298 (paragraph No.8) and submitted that Customs Officers exercise police powers and therefore, alleged confession by petitioner is hit by Section 25 of Evidence Act, 1872.
Noor Aga Vs. State of Punjab and another (2008)16 SCC 417 (paragraphs No.75 and 76) and submitted that Section 53 of NDPS Act empowers Customs Officer with powers of a Station House Officer and therefore, he shall be deemed as a Police Officer for the purposes of Section 25 of the Evidence Act.
Lalita Kumari Vs. Government of Uttar Pradesh and others (2014)2 SCC 1 (paragraphs No.93 to 95) and submitted that registration of FIR is necessary.
5. Thus in substance, Shri. Hasmath Pasha contended that there is serious infraction of procedure and the same must enure to detenue’s benefit.
6. Petition was opposed by Shri.Madhukar Deshpande for NCB. He made available copies of authorization issued under Section 41(2) of the NDPS Act to search the premises, voluntary statements of petitioner and accused No.1, notice issued under Section 50 of the NDPS Act, driving licence in the name of ‘Mahesh Uthappa’ used by the petitioner and copy of arrest Memo dated 3rd May 2019 for perusal of this Court.
7. Shri. Deshpande submitted that information was received on 30th April 2019. Authorization was given by the competent authority on 1st May 2019. Panchanama was drawn on the same day. Petitioner’s voluntary statement under Section 67 of NDPS Act was recorded on the following day namely 2nd May 2019. Petitioner was arrested on 3rd May 2019 and produced before the Special Court on 4th May 2019.
8. I have carefully considered rival contentions and perused the records.
9. Admittedly, petitioner is alleged of offences punishable under Sections 8, 22, 23, 27A, 28, 29 and 32B(a) of the Act. An application seeking bail by a dentenu alleged of offence punishable under Section 27A of the Act is required to be examined within the parameters prescribed in Section 37 of the Act, which reads as follows:
“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 under section 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.”
10. Therefore, in order to grant bail, Court must record satisfaction on two aspects. Firstly that there are reasonable grounds to believe that petitioner is not guilty of alleged offence and secondly that he is not likely to commit any offence while on bail.
11. The first ground urged by Shri. Hasmath Pasha is that petitioner was detained on 1st May 2019 but he was produced on 4th May 2019. Prosecution claims to have arrested petitioner only on 3rd May 2019. Admittedly, petitioner was produced before the Trial Court on 4th May 2019. The application seeking bail was moved on 7th June 2019. The learned Trial Judge has recorded that the contention with regard to re-tracing the statement was brought up after nearly one and half months. He has also recorded that, petitioner did not complain about any ill-treatment when produced on 4th May 2019. Therefore, this ground is untenable.
12. The second ground is with regard to the place of recovery of contraband. Prosecution’s case is that it was recovered from a garage situated in the building in petitioner’s occupation. Petitioner alleges that the garage is not part of the building. The lease agreement prima facie shows that petitioner was in occupation of entire building. Therefore, this ground is also not tenable.
13. The third ground is that no FIR has been registered as on date. Shri.Deshpande, placing reliance on paragraphs No. 51 to 54 of Directorate of Enforcement Vs Deepak Mahajan and another1 urged that production of arrestee before a competent Magistrate by an authorized Officer empowered to arrest, is sufficient for Magistrate to take such person into custody. It is held in Deepak Mahajan that learned Magistrate must be satisfied of three preliminary conditions. Firstly, the arresting officer is legally competent to arrest. Secondly, particulars of offence do exist and thirdly that provisions of special Act in regard to arrest of a person serve the purpose of Section 167(1) of the Code of Criminal Procedure.
1 (1994) 3 SCC 440 14. In the case on hand, arrest memo has been served upon the petitioner. He has been produced before the learned Trial Judge. A remand application containing violation of various provisions of the Act has been filed. Suffice to note that, this Court is not examining the requirement of maintaining ‘FIR Register’ by the NCB in this petition. Therefore, this ground is also not tenable.
15. The fourth ground is that the Panchanama dated 1st May 2019 conducted at 22.00 hours is contrary to law. Respondent has placed on record the authorization under Section 41(2) of the Act dated 1st May 2019 issued by the Superintendent of NCB to Virender Singh, Intelligence Officer to search petitioner’s building. Therefore, this ground is also untenable.
16. The fifth ground is that Ketamine Hydrochloride is not a psychotropic drug defined under the Act. The issue with regard to inclusion of ‘Ketamine’ was considered by a Division Bench of Delhi High Court Vishal Puri Vs. Union of India [ W.P.(C) 11416/2015 decided on April 11, 2017] relied upon by Shri.Deshpande. The Delhi High Court was considering a prayer to declare Notification S.O. 311, dated 10th February 2011 as ultra vires the Narcotic Drugs and Psychotropic Substances Act, 1985 and to set-aside the said Notification and entry No. 238E in the Notification S.O. 1430(E) dated 21st June, 2011. In the said case, 1195.2kg of ‘Ketamine Hydrochloride’ was seized. By recording that Section 3(a) of the NDPS Act has been satisfied and that the Respondent therein could not be held as having exceeded the power in issuing the Notification, the Delhi High Court dismissed the petition.
17. Shri.Hasmath Pasha urged that Ketamine has been included in Schedule ‘X’ of Drugs and Cosmetics (sixth amendment) Rules, 2013. He placed reliance on paragraph No.13 of Sridhar Punachithaya. K Vs. The Intelligence Officer (Criminal Petition No.3468/2016 decided on 28th June 2016) and contended that this Court has held that “There is no dispute that Ketamine is covered under Schedule to the Act, but there is no specific substance for Ketamine Hydrochloride which is covered under the Act or under the Rules anywhere.” Shri. Pasha submitted that what is recovered is Ketamine Hydrocholride and therefore, petitioner is entitled for bail as the facts of this case are similar to the case of Sridhar Punachithaya.
18. Section 2(xxiii) reads as follows:
“Psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.”
Admittedly, ‘Ketamine’ finds its place at Sl. No.110A of the Schedule. Salts and preparations find place at Sl. No.111. Hence, ‘Ketamine Hydrochloride’ will have to be treated as a preparation of Ketamine.
19. In State of Punjab Vs. Rakesh Kumar2, Hon'ble Supreme Court of India was considering a case in 2 (2019) 2 SCC 466 which Trial Court had convicted the accused for offence under NDPS Act. The High Court of Punjab, while considering an application for suspension of sentence, observed that manufactured drugs, be it containing narcotic drugs or psychotropic substances, if manufactured by a manufacturer, must be tried, if violation is there under the Drugs and Cosmetics Act and not under the NDPS Act, except those in loose form by way of powder, liquid, etc., and accordingly, granted suspension of sentence. Reversing High Court’s order the Hon'ble Supreme Court of India has held as follows:
“7. At the outset it is essential to note the objectives of the two legislations before us i.e. the Drugs and Cosmetics Act, 1940 and the NDPS Act. The Drugs and Cosmetics Act, 1940 was enacted to specifically prevent substandard drugs and to maintain high standards of medical treatment (Chimanlal Jagjivan Das Sheth V. State of Maharashtra). The Drugs and Cosmetics Act, 1940 was mainly intended to curtail the menace of adulteration of drugs and also of production, manufacture, distribution and sale of spurious and substandard drugs. On the other hand, the NDPS Act is a special law enacted by Parliament with an object to control and regulate the operations relating to narcotic drugs and psychotropic substances. After analysing the objectives of both the Acts, we can safely conclude that while the Drugs and Cosmetics Act deals with drugs which are intended to be used for therapeutic or medicinal usage, on the other hand, the NDPS Act intends to curb and penalise the usage of drugs which are used for intoxication or for getting a stimulant effect.”
20. After adverting to Union of India and Another Vs. Sanjeev V.Deshpande3, it is further held as follows:
“13. Section 22 prescribes the punishments for the violation of various activities prohibited under Section 8(c). Depending upon the quantity of the psychotropic substance involved in the case, the punishment prescribed also varies. If the quantity is small, the punishment extends upto 6 months. The expression “small quantity” is defined under Section 2(xxiiia). If the quantity is less than “commercial quantity” as defined under Section 2(viia), but greater than the small quantity, the punishment may extend upto 10 years of rigorous imprisonment apart from fine. When the quantity exceeds the commercial quantity, the punishment extends upto 20 years and carries a fine upto 2 lakhs and for special reasons even more. Section 23 prescribes the punishment for illegal import to India of export out of India of narcotic drugs and psychotropic substance. Once again, the punishment varies depending upon the quantity of the contraband involved in the offence. Examination of the scope of Section 24 is not necessary in the context of the factual setting of the cases at hand.
14. Section 35 stipulates that in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the court trying the offence is mandated to assume the existence of such mental state, though it is open for the accused to prove that he had no such mental state.
15. The ambit and scope of section 37 was considered by this court in two earlier decisions in Union 3 (2014) 13 SCC 1 of India v. Thamisharasi, (1995) 4 SCC 190 and Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549. The latter of the two judgments after taking note of the earlier decision explained the context of section 37 as follows: (Ahmadalieva Nodira case, SCC p.552, paras 6-7) “6. As observed by this Court in Union of India v. Thamisharasi clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence”
21. Therefore, the contention urged by Shri. Hasmath Pasha that petitioner is required to be tried only for violation of Drugs and Cosmetics Act, is also untenable.
22. So far as satisfaction of this Court under Section 37 is concerned, it is relevant to note that in his statement recorded under Section 67 of NDPS Act, petitioner has stated that Ketamine drug manufacturing work was introduced to him by his friend Shahul Hameed. He was trained in manufacturing Ketamine by P. Venkateshwarulu (accused No.3). He has delivered ten batches of Ketamine drug in two years to customers as instructed by Shahul and Mahil.
23. Petitioner has also given detailed description as to how the drug in question is manufactured. In Annexures ‘A’ to ‘C’ appended to the Panchanama drawn at petitioner’s house, apparatus used to manufacture the drug and various documents have been seized which include a photocopy of the driving licence in the name of ‘Mahesh Uthappa’.
24. The voluntary statement also reveals that petitioner had obtained driving licence in the name of Mahesh Uthappa. The inventory of seized items annexed to the Panchanama includes the driving licence in the name of Mahesh Uthappa bearing No.KA50 291600002423, a driving licence in the name of Shivraj Urs bearing No.KA50 20090005724, a Visa Card issued by Axis Bank in the name of Mahesh Uthappa bearing No. 4514 5700 2747 1807.
25. The statement further reveals that petitioner started his career as a front office assistant in a Hotel on a salary of Rs.2,500/- and resigned his job as the General Manager of a different Hotel. It also reveals that petitioner created a fake driving licence in the name of ‘Mahesh Uthappa’ and by using the said licence, he obtained a voter’s ID and a Pancard through different agents. He opened an account in Axis Bank in the name of ‘Mahesh Uthappa’.
26. Statement further reveals that petitioner acted upon the instructions of Shashul Hameed and Mahim to deliver contraband to their customers in Chennai. Petitioner and accused No.1 – Kannan, used to carry Ketamine and meet the customer in pre-decided place in Chennai. It is stated that petitioner has delivered in all 10 batches of contraband in over two years in Chennai and earned about Rs.45 to 50 lakhs.
27. Statement further reveals that petitioner had handed over a bag containing 26.750 Ketamine manufactured in his house to J.Kannan on 30th April 2019. As the NCB team had caught Kannan, he got panicked and escaped.
28. Under panchanama dated 1st May 2019, in all 50 items have been seized. Inventory includes the car, 6 mobile phones, a driving licence in the name of ‘Mahesh Uthappa’ and driving licence in the name of Shivraj Urs, several credit cards, voter’s ID, passport etc.
29. Shri.Hasmath Pasha, placing reliance on paragraphs No.75 and 76 of Noor Aga, vehemently contended that an NCB Officer invested with the power of a Police Officer by reason of a special statute is deemed to be a Police Officer and therefore, any statement recorded before such Officer is hit by Section 25 of Indian Evidence Act.
30. Mr. Hasmath Pasha’s argument with regard to retracing of petitioner’s statement on the ground that it was recorded under duress, cannot be countenanced because large number of documents which include a driving licence in the name of Mahesh Uthappa have been seized. Further, apparatus and other materials have also been seized from petitioner’s house. It cannot be construed that the NCB officials had any knowledge about petitioner’s driving licence, Bank Account details etc., 31. A careful analysis of dates and events discernable from petitioner’s statement, seized documents and contraband do not instil confidence to record satisfaction that there exist grounds to believe that petitioner is not prima facie guilty of the alleged offence and that he is not likely to commit any offence, if released on bail.
32. In view of the above, this petition must fail and it is accordingly dismissed.
Sd/- JUDGE SPS