Karnataka High Court
Shri Soman Ananthan vs The Superintendent Of Customs on 17 January, 2013
Equivalent citations: 2013 (3) AKR 375
1 R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO:6528/2012
BETWEEN:
SHRI. SOMAN ANANTHAN
PASSPORT NO.G9930689
NORTH STREET, PUDUR VILLAGE
ORATHANADU(TK), THANJAVUR DISTRICT
TAMIL NADU-614 624
... PETITIONER
(BY SRI HARISH A CHARVAKA, ADV.,)
AND:
THE SUPERINTENDENT OF CUSTOMS
AIR INTELLIGENCE UNIT
BANGALORE INTERNATIONAL AIRPORT
BANGALORE-560 300
...RESPONDENT
(BY SRI. URVAL N RAMANAND, SR. ADV.,)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 READ WITH SECTION 167(2) OF THE CR.P.C. PRAYING
TO ENLARGE THE PETITIONER ON BAIL IN
O.R.NO.07/2012 PENDING BEFORE THE XXXIII ACC & SJ
& SPL. JUDGE (N.D.P.S.), BANGALORE FOR THE OFFENCE
PUNISHABLE UNDER NDPS ACT.
2
THIS CRIMINAL PETITION COMING FOR ORDERS ON
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has been arraigned as accused in the case registered by the Superintendent of Customs, Air Intelligence Unit, Bangalore International Airport (B.I.A.), Bangalore in O.R.No.7/2012 for several offences punishable under N.D.P.S. Act.
2. According to the case of the prosecution, at about 23.30 hours on 17.07.2012, the Immigration Officer at B.I.A. handed over this petitioner who was bound for Kuala Lumpur through Malaysian Airlines Flight No.MH193 scheduled to leave at 00.45 hours on 18.07.2012, to the Custom Officer of the Air Intelligence Unit at BIA suspecting that he may be carrying some contraband articles in his baggage. Thereafter, the petitioner was brought along with his baggage to the office of the Air Intelligence Unit situated in B.I.A. and his personal search was conducted in the presence of the Gazetted Officer. The baggage was verified and the 3 said bag found containing a bottom portion wherein a Rexin Pouch was found. Rexin Pouch was cut opened and it was found containing white crystalline powder concealed in 3 Plastic Covers which were wrapped in carbon paper and black plastic paper with cello tape. The foot mats found in the baggage, on verification found containing white crystalline powder concealed. Thereafter, the said crystalline powder was tested in the "GE ITEMISER" Testing Machine and it revealed that the Crystalline Powder was Ketamine Hydrochloride. The total quantity of the substance was found weighing 4.500 Kgs. Therefore, the contraband substance was seized, after drawings samples under a mahazar. Voluntary statement of this petitioner recorded, revealed that the petitioner was smuggling the aforesaid contraband substance out of the country without declaring the same to customs authorities. Therefore, the petitioner was arrested and produced before the jurisdictional Magistrate, Devanahalli, who remanded 4 him to judicial custody on the same day i.e., on 18.07.2012.
3. On the expiry of sixty days from the date of his first remand, the petitioner filed application under Section 167(2) of Cr.P.C. on 18.09.2012 seeking an order of bail interalia on the ground that since the final report has not been filed within 60 days from the date of first remand, he has acquired an indefeasible right to be enlarged on bail in terms of the proviso to Section 167(2) of Cr.P.C. This contention was urged on the premise that, the Investigating Officer was required to file final report within 60 days since the offence alleged against this petitioner was not punishable with death or imprisonment for life or imprisonment for a term not less than 10 years, as per the proviso to Section 167(2) of Cr.P.C. It was also contended that, for the purpose of finding out as to whether the alleged contraband substance seized falls within the commercial quantity, even at the stage of consideration of the prayer for bail, the Investigating Officer ought to have produce F.S.L. 5 report as to the pure drug content to ascertain the quantity of the actual contraband article found in the total quantity of the substance seized since the period of punishment prescribed under the N.D.P.S. Act is based on the quantity of the contraband substance. It was further urged that, if only the contraband substance seized falls within the category of commercial quantity, the provisions of Section 36-A(4) of the N.D.P.S Act can be applied, in so far as it relates to the extension of time up to 180 days for the purpose of remanding the accused to judicial custody pending investigation.
4. The application was opposed by the prosecution mainly on the ground that, in the light of the amendment brought into force as per the notification dated 18.11.2009 to the Table specifying the small quantity and commercial quantity under the Act, for the purpose of finding out as to whether or not seized contraband article falls within the category of commercial quantity, the whole quantity of the article seized should be taken into consideration and since in 6 the case on hand, the total weight of the contraband article seized weighed 4.500 Kgs, it fell within the category of commercial quantity, therefore, the provision of Section 36-A(4) of N.D.P.S. Act is attracted, as such the application under Section 167(2) of Cr.P.C. was not maintainable.
5. The Special Court, on consideration of the contentions urged on both side, rejected the application holding that the application is premature in the light of the amendment to the Table and that, in view of the provision of Section 36-A(4) of the Act, the person accused of offence punishable under the N.D.P.S. Act in relation to commercial quantity can be remanded to judicial custody up to a period of 180 days. Therefore, the petitioner is before this Court.
6. The petition is opposed by the prosecution.
7. I have heard Sri. Harish A Charvaka, learned counsel appearing for the petitioner and Sri.Urval N. 7 Ramanand, learned Senior counsel appearing on behalf of the respondent.
8. During the course of the argument the only contention urged before this Court by the learned Counsel for petitioner was that in the light of the judgment of the Apex Court in E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5 SCC 161, to find out as to whether the provision of Section 36-A(4) of the Act which extends period of 90 days provided under Section 167(2) of Cr.P.C. to 180 days, is applicable or not, even at the stage of consideration of application for bail it is necessary for prosecution to show as to what is the percentage of pure drug content in the seized substance. He contended that, the amendment brought to the Table by a notification to the effect that the total quantity of the substance seized should be taken into consideration to find out as to whether it would fall within the category of commercial quantity or not cannot be taken into consideration at the stage of 8 consideration of the bail application and the said amendment is not valid as such no reliance can be placed on the said amendment.
9. In this behalf, he relied on the reported judgments of the Kerala High Court in the case of Ashraf vs. State of Kerala reported in 2010(1) Crimes 524, judgment of Jammu and Kashmir High Court in the case of Mushtaq Ahmed Malik vs. State of Jammu and Kashmir reported in 2012(3) Crimes 190 and the judgment of the Bombay High Court in the case of Rajesh Jaswantlal Solanki vs The State of Maharashtra in Crl.Appln.No.176-11 and connected cases decided on 15.02.2011.
10. Per contra, the leaned Senior counsel appearing on behalf of the respondent contended that, the amendment brought to the table has been notified in the Official Gazette and it has been brought into force on 18.11.2009 and in the absence of any decision declaring the said amendment as ultra vires the 9 constitution or as contrary to any law, it is binding on all, therefore, in the light of the said amendment, since the quantity seized from the possession of this petitioner falls within the category of commercial quantity, the provision of Section 36-A(4) of the Act would get attracted. Therefore, the jurisdictional Court is empowered to extend remand of the accused persons up to 180 days pending investigation.
11. I have bestowed my anxious considerations to the submissions made by both side.
12. As noticed supra, according to the case of the prosecution, the petitioner was handed over to the Customs Authority, Air Intelligence Unit in B.I.A. on the suspicion that he may be in possession of certain contraband articles. The materials on record, prima facie indicates that, on verification of the baggage of this petitioner it was found containing white crystalline powder concealed in the said baggage and its total weight was 4.500 Kgs. The initial test made at the place 10 of search revealed that the white crystalline powder was Ketamine Hydrochloride. It is, on that basis, the petitioner was apprehended and later subjected to judicial custody. If the total quantity seized as indicated above is taken into consideration, there is no dispute that it falls within the category of commercial quantity, since as per the entry No.238E of the table attached to the Act, 500 grams and above of Ketamin would fall within the category of commercial quantity.
13. Section 167(2) of Cr.P.C., empowers the Magistrate to authorise the detention of an accused person, otherwise than in the custody of the police, upto 90 days, when the investigation relates to the offence punishable with death, imprisonment of life or imprisonment for a term of not less than 10 years and 60 days, where the investigation relates to any other offence. However, Section 36-A(4) of N.D.P.S. Act which is a Special Act provides a different period for this purpose. According to Section 36-A(4) of N.D.P.S. Act in respect of persons accused of an offence punishable 11 under Section 19 or Section 24 or Section 27(A) or for offences involving commercial quantity the references in Sub-Section (2) of Section 167 of Cr.P.C. to 90 days should be construed as reference to 180 days. Thus, by virtue of Section 36-A(4) of the Act, the period of 90 days mentioned in proviso to Section 167(2) of Cr.P.C. has been extended to 180 days in respect of persons accused of the offences noted above. Thus, if the offence alleged involves commercial quantity, then the period during which an accused person could be remanded to custody pending investigation is statutorily extended up to 180 days as against 90 days as per the proviso to Section 167(2) of Cr.P.C. Therefore, the Special Court, while remanding the person accused of any offence under the Act is required to consider as to whether there are materials to prima facie indicate accused having committed any offence enumerated in Section 36-A(4) of the Act or whether the offence involves the commercial quantity. If the person is accused of having committed any of the offence 12 enumerated in Section 36-A(4) of the Act or if the offence involves the commercial quantity, there is no difficulty in holding that such person could be remanded to judicial custody up to a period of 180 days pending investigation.
14. Of course, proviso to Section 36-A(4) of the Act further extends the said period to one year, provided, by means of a report of the public prosecutor, if it is shown to Court that it is not possible to complete the investigation within the period of 180 days and that, such report should also indicate the progress of the investigation and the specific reasons for the detention of the accused beyond the period of 180 days. In the case on hand, there is no dispute that, as on the date of application the period of 180 days had not expired. In other words, the application came to be filed before the expiry of 180 days. The only question required to be consider is whether the quantity of the substance said to have been seized from the possession of this petitioner falls within the category of commercial 13 quantity or not. No doubt, in E.Micheal Raj case referred to supra, the Apex Court has held that the purity of the contraband substance in the total quantity of the article seized is relevant to find out as to whether the accused were in possession of small or commercial quantity or intermediary quantity. However, subsequently by an amendment to the table which was duly published in the Official Gazette dated 18.11.2009, note 4 has been introduced which reads as under:-
"The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall be applied to the entire mixture or not solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."
15. The effect of this amendment is that, for the purpose of finding out as to whether the seized quantity 14 of the contraband drug or substance falls within the small or commercial quantity, the whole of the quantity of the drug or substance seized should be taken into consideration and not its pure drug content. Therefore, in the light of the aforesaid amendment brought to the table, the total quantity of the substance should be taken into consideration to find out whether the quantity falls within the category of small quantity or commercial quantity or intermediary quantity.
16. Learned counsel for the petitioner sought to contend that the amendment brought to the table is not valid and it is not notified in the Gazette and that, it is contrary to the judicial decision of the Courts. In the absence of challenge to the validity of the amendment, in my opinion, it is not proper for this Court to consider the validity of the amendment brought to the said table. However, it is found that the amendment brought to the table has been duly notified in the Official Gazette of the Government of India dated 18.11.2009. The reliance placed by the learned counsel on the various decisions 15 referred to supra has no force. The two judgments, one by Kerala High Court and other by Bombay High Court relate to the case involving the offence committed prior to 18.11.2009. Therefore, the Courts have not taken into consideration the effect of the amendment. In the decision of Jammu and Kashmir High Court, though the offence alleged said to have been committed subsequent to the amendment to the table, the High Court found that the petitioners therein were sent up for trial before the Court on the basis of the FSL opinion which contained the quantity of the pure drug contained in the material so recovered and not on the basis of the whole quantity seized. Therefore, the High Court held that the pure drug quantity was less than the commercial quantity and since there was a conflict in the opinion of the FSL and also that of CRCL, the view which favoured accused was adopted in the light of the judgment of the Apex Court in Samiullah v. SP Narcotic, reported in AIR 2009 SC 1357. Therefore, no sustenance can be drawn from any of the decision relied upon. 16
17. Another decision of this Court in the case of Mohammed Irfan vs. State of Karnataka by the Coastal Security Police reported in 2012(4) KCCR 2642 rendered by me was pressed into service. As could be seen from the said decision, this Court of course, in the light of the judgment of the Apex Court in E.Micheal Raj, and Samiullah referred to supra held that even at the stage of consideration of the application for bail under Section 167(2) Cr.P.C. to find out as to whether the substance seized falls within the commercial quantity or not, the pure drug content is required to be taken into consideration and for that purpose, the prosecution is required to produce FSL report before the expiry of 90 days. However, while rendering the said decision, the amendment brought to the table referred to supra was not brought to my notice. Therefore, the effect of the said amendment was not considered in the said case though the offence alleged in the said case was alleged to have been committed on 04.11.2011. In addition to this, the F.S.L. 17 report in respect of the samples drawn in that case revealed that the seized article does not contain any Narcotic Drug or Psychotropic substance. This weighed very much in the mind of this court to grant bail to the applicant therein. Therefore, this decision is distinguishable on facts and for non consideration of the amendment brought to the table. Therefore, no sustenance can be drawn from this decision also.
18. In the case of Harjit Singh vs. State of Punjab reported in (2011) 4 SCC 441, the Apex Court has noticed the amendment brought to the table by notification dated 18.11.2009. After extracting note 4 to the table brought by the amendment, the Apex Court has held that under the said notification the whole of quantity of material recovered in the form of mixture is to be considered for the purpose of imposition of the punishment. However, the Apex Court did not apply the effect of the said amendment to the said case since the offence alleged in that case had been committed much prior to 18.11.2009, the date on which the 18 amendment was brought into force holding that such amendment cannot be applied retrospectively.
19. In the light of the discussion made above and since total quantity of the substance seized in this case falls within the category of commercial quantity, the application filed under Section 167(2) of Cr.P.C. before the expiry of 180 days has been rightly held as premature. Therefore, I find no merit in this petition. The petitioner is not entitled for the relief of the bail under Section 167(2) of Cr.P.C.
Accordingly, this petition is rejected.
SD/-
JUDGE PMR*