IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO.4022/2019 AND CRL.P. NO.4227/2019 IN CRL.P. NO.4022/2019 BETWEEN SIDDIQ AHAMED S/O NISAR AHMED AGED ABOUT 21 YEARS NO.1144, 5TH CROSS 7TH MAIN, RAJENDRANAGAR KORAMANAGALA BENGALURU – 560 047 (BY SRI. IQBAL AHMED KHAN, ADVOCATE) AND THE STATE SUDDAGUNTEPALYA POLICE REP. BY ITS PUBLIC PROSECUTOR HIGH COURT BUILDING ... PETITIONER BENGALURU – 560 001 ... RESPONDENT (BY SRI. K. P. YOGANNA, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.94/2019 OF SUDDAGUNTEPALYA POLICE STATION, BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION 8(c), 20(B)(ii)(c) AND 21(c) OF N.D.P.S. ACT.
IN CRL.P.NO. 4227/2019 BETWEEN ANIRBHAN GHOSH S/O ASHWAKUMAR GHOSH AGED ABOUT 31 YEARS R/A. NEW NO.501, OLD NO.6/1 POST OFFICE ROAD, THAVAREKERE BENGALURU – 560 029 (NOW IN JUDICIAL CUSTODY) ... PETITIONER (BY SRI. K. S. VISHWANATHA, ADVOCATE) AND STATE OF KARNATAKA SUDDAGUNTEPALYA POLICE STATION BENGALURU – 560 029 REP. BY SPP HIGH COURT OF KARNATAKA BENGALURU – 560 001 ... RESPONDENT (BY SRI. K. P. YOGANNA, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO. 94/2019 OF SUDDAGUNTEPALYA POLICE STATION , BENGALURU FOR THE OFFENCES PUNISHABLE UNDER SECTION 8(c), 20(B) (ii) (c) AND 21(c) OF N.D.P.S. ACT.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners, who are arraigned as Accused Nos.1 and 2 respectively in Crime No.94/2018 for the offences punishable under Sections 8(c),21(c) & 20(B)(ii)(C) of Norcotic Drugs and Psychotropic Substances Act, 1988, have filed the above said petitions for grant of bail under Section 439 of Cr.PC seeking for bail.
2. The brief facts of the case are that, the Respondent-Siddaguntepalya Police, on receipt of a credible information that, the accused persons are transporting some Narcotic Drugs for the purpose of selling the same, on 20.50.2019 at about 10.15 am., they went near Tavarekere Bus Stop within the jurisdiction of Siddaguntepalya Police Station and where they found two persons at the spot and in fact, they raided that spot and caught hold those two persons (the petitioners herein). On enquiry and search of them, the police found 11 gms..of MDMA Narcotic Drug and 2.100 gms. of Ganja. On the basis of which, they conducted mahazar on the spot and recovered the said articles and arrested the petitioners on the same day, and since then the petitioners are in judicial custody. After interrogation of the accused persons, it appears they were produced before the jurisdictional court and they were remanded to judicial custody and now, they are no more required for any further investigation.
3. Learned counsel for the petitioners mainly relying upon the legal lapses on the part of the Investigating agency, sought for bail in respect of petitioners. It is contended by the learned counsel for the petitioners that, according to the standing instructions of the Central Government in Standing Instructions No.1/2018 which lays down the law that the Investigating agency has to obtain qualitative and quantitative report within prescribed time from the Forensic Science Laboratory in order to establish that the seized articles were Narcotic Drug. In the absence of securing of such Forensic Science Laboratory report within the prescribed period, the accused are entitled to be enlarged on bail. As the Section 37 of the Act, has no application when statutory or legal requirement is not complied strictly by the Investigating Agency.
4. This Court in a decision reported in LAWS KAR 2018 (1) 134 between Ben Okaro Vs. State of Karnataka, this court has enlarged the petitioners therein on bail on the same ground, though the Court found that the seized article exceeding commercial quantity. At this stage, it is worth to refer Paragraph-13 of the said decision rendered by this Court, which reads as under:-
“13. Coming to the materials said to have been seized, no doubt there is mention as per the contents of mahazar and complaint that the petitioner herein was involved in selling narcotic drugs in small packets. When the house was searched, they found 500 gms of white powder, which is cocaine. Looking into the materials, quantity mentioned is 500 gms, which is more than commercial quantity. In this connection, the central government framed standing instructions and as per Standing Instruction No.1/88, it lays down time limit for obtaining qualitative and quantitative report from the FSL and looking to the materials produced by the prosecution in this case, they have not produced the qualitative report within 15 days from the date of sending the narcotic drug to the FSL. They have also not produced the quantitative test reports within 30 days. Therefore, there is no compliance of requirements of standing instructions. The learned counsel for the petitioner relied upon the decision of the Hon’ble Apex Court that fulfillment of requirements of the standing instructions is also requirement of law. In this regard, he relied upon a decision of the Hon’ble Apex Court in the case of Union of India v. Bal Mukund and others, 2009 12 SCC 161 and he draws the attention of this Court to paragraph 36 which reads 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 grams 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.”
5. Relying upon the said decision, this court has made an observation in Ben Okaro’s case that, when the legal requirement of Standing Instructions of the Central Government is not complied with, which is mandate of law, the State cannot embark upon Section 37 of the NDPS Act. Therefore, the Court has to apply the principles under Section 439 of Cr.P.C to ascertain whether the petitioners are entitled to be enlarged on bail or not. The embargo under Section 37 of the NDPS Act cannot be pressed into service.
6. The learned HCGP has not brought to the notice of this Court that any Forensic Science Laboratory report is available as on today and whether it has been obtained within 15 days from the date of seizure of articles in order to establish that the articles seized were actually falls within the category of Narcotic Drugs. Apart from the above, sofar as Ganja is concerned, only 2.100 Gms. of Ganja is seized, which is below the commercial quantity. Somfar as 11 gms. MDMS is concerned, though it is alleged to have been seized, but within 15 days no Forensic Science Laboratory report has secured in that regard and produced to establish that the said seized articles fall within the category of Narcotic Drug.
7. In the above circumstances, on the above said legal lapses on the part of the Investigating agency, in my opinion, the petitioners are entitled to be enlarged on bail. Further added to the above, the learned HCGP did not bring to the notice of this court that, these petitioners are habitual offenders and whether they are involved in any other cases like this. In the absence of any such material to show the legal requirement was strictly complied with, the petitioners are entitled to be enlarged on bail on that ground alone.
8. In the above facts and circumstances, I pass the following-
ORDER The petitions are allowed. The petitioners are directed to be released on bail in connection with Crime No.94/2013 on the file of the 33rd Additional City Civil and Sessions Judge (Special Court for NDPS Act, for the offences punishable under Sections 8(c), 21(c), 20(B)(ii)(c) on following conditions that,-
i) Each of the petitioners shall execute their personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.
ii) The petitioners shall not indulge in any similar activities and they shall not hamper the investigation and tamper the prosecution witnesses.
iii) The petitioners shall readily available to the concerned Investigating agency as and when required for the purpose of further investigation, interrogation etc.
iv) The petitioners shall mark their attendance before the concerned Investigating Officer once in a week ie., on every Sunday between 10.00 am and 5.00 pm., for a period of four months or till completion of investigation, whichever is earlier.
v) The petitioners shall not leave the jurisdiction of the trial Court without prior permission of the Court, till the case registered against them is disposed of.
Sd/-
JUDGE KGR*