Karnataka High Court
Nousheer Mohammed vs Union Of India on 28 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 544
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.7690 OF 2019
BETWEEN:
Nousheer Mohammed
S/o Mohammed Shereef,
Aged about 28 years,
R/a V Moydu, Virajpet,
Kallubane Post,
Arji Village, Arji,
Kodagu-571 218.
...Petitioner
(By Sri. Tomy Sebastian, Senior Advocate)
AND:
Union of India,
Narcotics Control Bureau,
Bangalore Zonal Unit,
Through Intelligence Officer,
Office at No.7/1-2, Priyanka villas,
Begur Main Road, Kattigenahalli,
Yelahanka (PO),
Bengaluru-560 063.
...Respondent
(By Sri. Venkat Narayan., Advocate)
***
This Criminal Petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in
NCB F.No.48/1/3/2019/BZU in Spl.C.C.No.1106/2019 of
State NCB, Bengaluru, for the offences punishable under
Sections 8(c) R/w 20(b), 21, 22, 28 and 29 of NDPS Act,
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pending on the file of the Hon'ble XXXIII Additional City
Civil and Sessions Judge and Special Judge for NDPS Act at
Bangalore in Crl.Misc.No.9533/2019, in the interest of
justice and equity.
This Criminal Petition coming on for Orders, this day,
the Court made the following:
ORDER
The petitioner before this Court is prosecuted for possessing Amphetamine and Cocaine drugs and is charged for the offences under Sections 8(c) read with 20(b)(ii)(C), 21(b), 22(c) punishable under Sections 20(b)(ii)(C), 21(b), 22(c), 27A, 27B, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short referred to as "N.D.P.S. Act").
2. The application filed by the petitioner for his release on bail has been rejected by the learned XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, (CCH-33) (for short "Special Court") .
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3. The grounds raised by the learned Senior Counsel appearing for the petitioner are two-fold.
Firstly, the total quantity of Amphetamine drug alleged to have been seized from the possession of petitioner was initially described as 965 grams of Amphetamine and 30 grams of cocaine. However, after securing the chemical analysis report, it has been ascertained that in the sample containing Amphetamine drug, Methamphetamine has been detected as per Ex.S-1 and in the sample containing cocaine, cocaine has been detected as per Ex.S-3.
Based on this report, it is argued by the learned Senior Counsel appearing for petitioner that Amphetamine drug seized from the possession of accused petitioner contained mixture of drugs. Under the said circumstance, without determining the actual quantity of the contraband substance and without conducting any quantitative tests, there is no basis for 4 the prosecution to hold that the drugs in the possession of the petitioner were of commercial quantity.
The second ground urged by the learned Senior Counsel is that the material on record indicates that, petitioner was not in conscious possession of the alleged drugs. The statement of the petitioner recorded under Section 67 of the N.D.P.S. Act indicate that one Pallulabid Ahamad Airimutta who is shown as accused No.3, handed over a bag to him after reaching Airport. The circumstance narrated in the said statement clearly indicate that the petitioner was not in conscious possession of the alleged drugs. Under the said circumstance, petitioner is entitled for his release on bail.
In support of his submission, learned Senior Counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of E. MICHEAL RAJ 5 VS. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU reported in A.I.R. 2008 SUPREME COURT 1720 and referring to paragraph 15 thereof, emphasized that, in the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.
On the same point, learned Senior Counsel has also placed reliance on the decision of learned Single Judge of this Court in Criminal Petition No.7314/2016 dated 27-03-2017, wherein, it has been held that if the narcotic drug or psychotropic substance is found 6 to be adulterated, the question arises as to what is the quantity of the drug that was allegedly seized, and when there is no quantitative report on record, it would be a lacuna that would go to the root of the matter.
Further, the learned Senior Counsel appearing for the petitioner pointed out that even though subsequently, a Notification of 2009 was issued by the Central Government, the question with regard to the applicability of the said Notification is pending consideration before a larger bench of the Supreme Court. In support of this submission, learned counsel referred to the observations of this Court in Criminal Petition No.3172/2019 dated 11-09-2019 wherein it is observed that the Notification issued by the Central Government dated 18-11-2009 has been challenged in the case of HIRASINGH & ANOTHER VS. UNION OF INDIA AND ANOTHER reported in (2017) 8 Supreme 7 Court Cases 162 and the issue has been referred to a larger bench and the matter is still sub judice.
4. Repelling the submissions, learned counsel for the respondent, at the outset, pointed out that, the very statement relied upon by the learned Senior Counsel makes it evident that the petitioner was made aware by accused No.3 that the bag given to him contained drugs. In this regard, learned counsel has referred to the following portion of the statement of the petitioner which reads as under:-
"Falalulla told me that, the bag which he handed over to me after reaching airport contains drugs. He told me to carry the bag to Qatar carefully. Falalulla also told me to call him and Majeed after I clear Immigration."
Further, the learned counsel for the respondent referred to the concluding part of the statement of petitioner which reads as under:-
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"On being asked, I state that, I know drug trafficking is an offence and punishable. I engaged myself in drug trafficking for quick money. I was well aware of the concealment of drugs in my bag. On being asked, I state that, I have been to Middle East earlier and have indulged in smuggling of Gold. This time, I had accepted the task as I was promised of a payment of Rs.60,000/- after I deliver the drug at Qatar. Also, my friend has promised me that he will help me in getting a job at Qatar."
In so far as the submission of the learned counsel for the petitioner relating to non- determination of the quantity of the contraband substance is concerned, learned counsel for respondent placed reliance on the decision of the Division Bench of this Court in the case of THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA Vs. A. SHAHID AND OTHERS reported in ILR 2015 KAR.5411 and emphasized that subsequent to the decision of the Hon'ble Apex Court in E. Micheal Raj's 9 case (supra), a Notification dated 18-11-2009 was issued by the Central Government which replaced part of the Notification dated 19-10-2001. considering the applicability of the said Notification, in paragraph 10 of the above judgment, the Division Bench of this Court has held that "the law prior to issuance of Notification dated 18.11.2009 had been settled by the Apex Court in the case of E. MICHEAL RAJ cited supra holding that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment, it is the only content of narcotic drug or psychotropic substance which has to be taken into consideration. This position is altered by virtue of the Notification dated 18.11.2009 inasmuch as the entire mixture and not just its pure drug content has to be considered by virtue of the said Notification." 10
Further, he placed reliance on the recent decision of the Hon'ble Supreme court in the case of State OF KERALA Vs. RAJESH ETC. reported in 2020 SUPREME COURT CASES ONLINE SC 81 and pointed out that the material on record clearly indicates that the petitioner was in conscious possession of psychotropic substance and the quantity thereof was clearly a commercial quantity, and there being sufficient material to show the involvement of the petitioner in the alleged offences, in view of the limitation placed by Section 37 of the Act, the petitioner is not entitled for grant of bail.
5. I have given my anxious consideration to the submissions made at the bar and have carefully scrutinized the material on record. In so far as the first contention urged by the learned Senior Counsel for the petitioner touching conscious possession is concerned, suffice it to say that, portion of the 11 statement of the petitioner extracted above clearly discloses that the petitioner was put on notice by accused No.3 himself that the bag contained drugs. Even though the learned Senior Counsel for the petitioner would contend that "drug" referred therein, does not mean a "prohibited drug" under the Act, but the subsequent statements made by the petitioner indicate that he was asked to carefully take the bag and to keep accused No.3 informed about the same and his further statement that he agreed to carry the bag for `60,000/- leaves no manner of doubt that he was in conscious possession of the contraband and that he took possession of the said bag with intent to traffick the same. In the wake of this material, the first contention urged by the learned Senior Counsel is liable to be rejected and is accordingly rejected.
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6. Coming to the quantity of the contraband substance seized from the possession of the petitioner is concerned, even though there is some dispute with regard to the actual quantity of the un-adulterated substance in relation to Amphetamine, yet as observed by the Division Bench of this Court, when the drugs are mixed with psychotropic substance and neutral substance, at the stage of consideration of the bail application, it is not proper to pre-judge the issue. Even otherwise, as per the Schedule, 50 grams of Amphetamine and 50 grams of Methamphetamine fall within commercial quantity. Having regard to the total quantity of the contraband seized from the possession of the petitioner, until the quantitative test is completed, petitioner cannot be admitted to bail.
7. In that view of the matter, as the material on record prima facie gives rise to a reasonable ground for believing that the petitioner is guilty of the 13 offences alleged against him, I do not find any justifiable ground to admit the petitioner to bail.
Consequently, the petition is liable to be rejected. Accordingly, it is rejected.
Sd/-
JUDGE BMV*