Karnataka High Court
Miss Agnes Naggayi vs Union Of India on 19 July, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:7444
CRL.P No. 100945 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100945 OF 2023
BETWEEN:
MISS. AGNES NAGGAYI D/O. KASUJJA STEVEN,
AGED ABOUT 30 YEARS,
R/O: MEERA ROAD, MUMBAI-400068
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, DHARWAD)
...PETITIONER
(BY SRI.VINOD S. SHINGADE, ADVOCATE)
AND:
UNION OF INDIA,
NARCOTIC CONTROL BUREAU,
CHANDRASHEKAR BANGALORE ZONAL UNIT,
LAXMAN
KATTIMANI BANGALORE- 560001.
REPRESENTED BY LEARNED CONTROL GOVT,
Digitally signed by STANDING COUNSEL.
CHANDRASHEKAR
LAXMAN ...RESPONDENT
KATTIMANI
Date: 2023.07.28
(BY SRI.AVINASH ANGADI, ADVOCATE)
11:03:33 -0700
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.PC., SEEKING TO ENLARGE HER ON BAIL IN CRIME NO.
NCB FILE NO. 48/1/1/22/BZU FOR OFFENCES IS PUNISHABLE
UNDER SECTION 8(c), R/W 22(c),23(c),27,28 AND 29 OF THE
NDPS ACT ON THE FILE OF RESPONDENT NARCOTIC CONTROL
BUREAU, BANGALORE CITY, WHICH IS PENDING BEFORE
HON'BLE COURT OF PRL. DISTRICT AND SESSIONS JUDGE, AT
DHARWAD DISTRICT, DHARWAD IN SPL. NDPS CC NO.
09/2022.
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CRL.P No. 100945 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Vinod S. Shingade, learned counsel for the petitioner and Sri.Avinash Angadi, Central Government standing counsel for respondent.
2. Petition under Section 439 of Cr.P.C. with the following prayer:
"Wherefore, the Petitioner (accused No.1) most humbly prays that this Hon'ble Court be pleased to enlarge her on bail in Crime No.NCB File No.48/1/1/22/BZU for offences is punishable under Section 8(c) r/w 22(c), 23(c), 27, 28 and 29 of the NDPS Act on the file of Respondent Narcotic Control Bureau, Bangalore City, which is pending before the Court of Hon'ble Prl. District and Sessions Judge, at Dharwad District, Dharwad in Spl. NDPS CC No.9/2022 in the ends of justice."
3. Brief facts of the case are as under:
Petitioner is a African lady who traveled in Sampark Kranti Express Train No.12630 from Delhi to Bangalore in coach No.S1 and seat No.66. The officials of Narcotic Control Bureau on credible information that the petitioner -3- NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 is carrying Narcotic Drugs and Psychotropic Substances (herein after for short 'NDPS'). They formed a raid team and they were waiting for the train to arrive at Hubballi station.
4. Said train on 06.01.2022 arrived on platform No.3 instead of platform No.1. Immediately, the NCB officials on hearing the announcement proceeded to platform No.3 and were waiting for the petitioner to de-board the train. As soon as she de-boarded the train along with the boxes, they apprehended her and asked her to open the boxes. Initially there was a resistance and later on in the presence of panch witnesses boxes were opened. Boxes said to contain Nestle Cerelac Baby Cereal with Milk Ragi Apple Baby food. On examining the substance inside the box, the raid party entertained a genuine doubt by examining the texture of the powder that the contents of the box was not nestle cerelac and something else. By their experience the NCB officials taught that the powder may be Methamphetamine which is banned under the -4- NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 NDPS Act. The entire quantity was weighed. After weighing the entire quantity, the weight of the polythin covers was deducted and total weight of the NDPS was to the tune of 995 grams which is a commercial quantity.
5. Admittedly, petitioner did not posses any license or permit to possess and transport the NDPS and therefore, the raid party considered it as illegal NDPS and took her into their custody and seized the NDPS and drew a mahazar. They registered the case and produced the petitioner before the Special Court with an application to remand her to judicial custody. Petitioner was remanded to judicial custody on the same day.
6. The attempt made by the petitioner to obtain an order of bail was rejected by the learned Special Judge. Thereafter, petitioner is before this Court.
7. Before this Court, following grounds have been raised by the petitioner to enlarge her on bail:
"14. The allegation that the petitioner was apprehended accused No. 1 at Hubballi Railway Station on -5- NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 06-01-2022. They NCB officer at the spot did not use the DD kit for testing the said seized substance to say that the said substance is methamphetamine without using the test its very difficult to say that only on the basis of TEXTURE of the said substance is exactly methamphetamine and believed to be the contraband. The NCB OFFICER did not even mentioned the colour of the said substance they seized at the spot. On 06-01- 2022 but factually she was taken to custody on 08-01- 2022 while she was at Hubballi Railway Station, Hubballi and since then 06-01-2022 to 08-01-2022 she was in illegal custody of Narcotic Control Bureau officers.
15. She was not carrying any said substance which is covered under NDPS Act 1985. The said Nestle cerelac baby carton box was not belongs to the petitioner accused no. 1. The Indian railway train is premises of public transport INFINITY no. of people get in and out from every station at the said train.
16. Hence she was not carrying any Nestle cerelac baby carton box bag containing Methamphetamine drug.
17. The very fact that no Panchanama was drawn at platform no.3 for in conveyance of search and seizer at the railway station. In fact that she was not found at the platform no.3.
18. The allegation of seizure of Methamphetamine, Nestle cerelac baby carton box and other covers are hereby denied as false.
19. The information said to have been received by NCB Intelligence Officer on 06-01-2022 about the petitioner indulging in supply of Methamphetamine drug to Delhi to be carried to Bangalore are all false. The information report is subsequently concocted on 07-01-2022.
20. From the person of petitioner nothing incriminating article is seized.-6-
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21. But still as per the case of prosecution the personal search of petitioner is carried out but nothing is found.
22. Before conducting personal search of petitioner, the mandatory provision of section 50 of the NDPS Act is not complied.
23. Similarly, there is nothing to suggest that on 06- 01-2022 itself information was received and recorded the same. Thereby the mandatory provisions of section 42 of the NDPS Act is not complied. The contents of information as per ANNEXURE-A clearly suggests that it is subsequently concocted.
24. The most serious infirmity in this case is, though the petitioner is taken to custody on 08-01-2022. By now it is more than 17 months. But so far no Quantity Test Report from Central Forensic Laboratory is produced to show that the seized substance, really contain alleged seized drug by name Methamphetamine.
25. But in respect of alleged seizure of Methamphetamine, there is no basis to hold that the seized substance is such as drug.
26. Because, so far no Quantity Test Report is produced to show that the entire seized substance contain really a drug punishable under the NDPS Act.
27. As per regulation 1.18 of Standing Instruction No.1/88 issued by Department under the NDPS Act, mandates for production of Qualitative Analysis Report within 15 days and in the next 15 days Quantitative Analysis Report is required to be produced otherwise, this Hon'ble Court can refuse to remand the accused to Judicial Custody.
28. By now it is consistently held by the Hon'ble Supreme Court and our Hon'ble High Court that compliance of regulation 1.18 of Standing Instruction No.1/88 is the requirement of law and it is mandatory. If within 30 days both Qualitative and Quantitative Report is not produced, then the arrested person is to -7- NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 be released on bail. This is one of the important factor for releasing the petitioner on bail.
29. Even to know the exact quantity of drug, test report of both Qualitative and Quantitative Analysis Report is required otherwise no conclusion can be reached as to the nature of drug and its quantity. Unless, the prosecution demonstrates that the seized substance is a commercial quantity the petitioner cannot be denied bail. Therefore, the petitioner is entitled for bail.
30. The petitioner submits that she had not involved in any case and therefore if the petitioner is released on bail there is no likelihood of committing or repeating the offence.
31. Therefore, there are reasonable grounds to believe that the petitioner is not involved in the commission of alleged offence and she is not likely to commit offence if she is released on bail.
32. The petitioner has been arrested as per prosecution on 06-01-2022 and by now it is about 17 months and by now major part of investigation will be completed and final report of the charge sheet is filed. In fact, the petitioner was taken to police/Narcotic Control Bureau custody for investigation for 31 days from 08-01-2022 to 10-01-2022 and thereafter since her presence of petitioner is no more required for investigation she has been got remanded to judicial custody. Hence, the petitioner cannot be detained any further. Hence, she entitled for bail.
33. The petitioner is foreigner she is ready to abide any condition for her release on bail. She will keep herself present if she required in the further investigation agencies or NCB officers. She will co-operate with her presence in the investigation if she released on the bail. She is traveller and her mother and one elder sister are in Uganda. Who are old aged.
34. The petitioner is ready to furnish solvent surety to release her on bail and she will undertake to abide any conditions to be imposed."-8-
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8. Reiterating the grounds urged in the petition, Sri.Vinod S. Shingade, learned counsel for the petitioner has contended that very fact of the petitioner being brought from platform No.3 to platform No.1 shows that alleged NDPS is implanted by the raid party and there was no compliance of Section 50 of the NDPS act and the decision of the raid party only by examining the texture of the seized material and term it as an NDPS viz., methamphetamine is incorrect and sought for grant of bail.
9. He also pointed out that the seized samples was sent to the Forensic Science Laboratory and with regard to the quality of NDPS there is no report by the Forensic Science Laboratory and therefore, the seized NDPS cannot be termed as a commercial quantity and therefore, the petitioner is entitled for grant of bail.
10. He also pointed out mentioning of the crime number in the panchanama exposes the hollowness in the case of the prosecution and somehow the petitioner was tricked -9- NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 into the alleged crime with malafide intention and therefore, petitioner is to be enlarged on bail.
11. He also pointed out that the there is violation of standing order in drawing the sample which vitiates the very seizure and therefore, petitioner is entitled for grant of bail. In the standing order No.1/1988 dated 15.03.1988, at clause No.1.5, it has been mentioned as under:
"1.5 Place and time of drawal of sample.- Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch)witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot."
Therefore, bail is to be granted.
12. He placed reliance on the following judgments, in support of his case:
1. Syed Abdul Ala Vs. Narcotic Control Bureau, reported in ILR 2003 KAR 474.
2. Chandru Kunthuru Raghuvegowda Vs. State by Inspector of Customs CTU, Bengaluru reported in ILR 2017 KAR 4053.
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3. Union of India Vs. Bal Mukund & others reported in (2209) 12 SCC 161.
4. State of Punjab Vs. Balbir Singh reported in (1994) 3 SCC 299.
5. Karnail Singh Vs. State of Haryana reported in (2009)8 SCC 539
6. Sami Ullaha Vs. Superintendent, Narcotic Central Bureau reported in (2008) 16 SCC 471.
7. E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008) 5 SCC 161
8. Hira Singh & another Vs. Union of India & another reported in (2017) 8 SCC 162.
13. Per contra, Sri.Avinash Angadi, learned central government standing counsel representing the NCB vehemently contended that since seized NDPS is of commercial quantity, powers of this Court in entertaining the bail petition Section 439 is subject to the conditions available under Section 37 of the NDPS act and the grounds urged in the petition are hardly sufficient to establish that there is a reasonable case made out by the petitioner that she is not guilty of the offence alleged against her. He further contends that the absence of such grounds being made out by the petitioner to grant bail
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 under Section 439 of Cr.P.C. would not be permissible and sought for dismissal of the bail petition.
14. He also contended that the seized NDPS was concealed to appear that it is a Nestle cerelac and by the experience of the officials, they entertained the genuine doubt that the contents of the boxes labeled as Nestle cerelac by examining the texture of the powder decided that it is a NDPS.
15. He also argued that FSL report which is part of the charge sheet material would confirm that the seized material is methamphetamine. Therefore, he contended that the alleged procedure lapses if any would only urged during the trial and purpose of bail petition, the same are not relevant and sought for dismissal.
16. In support of his case, he relied on the judgment of the Hon'ble Apex court in the case of Union of India through Narcotics Control Bureau, Lucknow Vs.
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 Mohammed Navaz Khan reported in (2021) 10 SCC 100, wherein it is held as under:
17. Section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the NDPS Act. Section 37 reads as follows:
"(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.
(emphasis supplied)
18. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are :
(i) The Prosecutor must be given an opportunity to oppose the application for bail; and
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(ii) There must exist 'reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.
19. The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that:
"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
"7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532] [...]
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10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]
11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."
(emphasis supplied)
17. In the light of the rival contentions of the parties, this court has perused the material on record meticulously.
18. In the case on hand, admittedly, the petitioner traveled in train bearing No.12630 from Delhi to Hubballi. The officials of NCB had definite and credible information that the petitioner is traveling in Coach No.S1 in seat No.66 along with NDPS. Accordingly, the officials of NCB had formed a raid team as per the procedure and they were waiting in platform No.1 on 06.01.2022, said train arrived at Hubballi in platform No.3 instead of platform
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 No.1. On hearing the announcement, the raid team shifted themselves to platform No.3 and apprehended the petitioner as soon she boarded from the train. She was carrying a box labeled Nestle cerelac. When she was asked to open the box in the presence of the panch witnesses, the box contained zip lock polythene covers with powder. On opening the covers, they noticed by their experience that the texture of the powder was not cerelac powder and they suspected it as NDPS.
19. Later on, samples were drawn and the entire seized NDPS was weighed after deducting the weight of plastic covers. The total weightage of the seized NDPS weight was 995 grams. Admittedly, the said quantity is commercial quantity as per the schedule to the NDPS Act. Admittedly, the petitioner did not possess any pass or permit to possess or transport the same. Therefore, it was termed as illegal NDPS and seized the NDPS and apprehended the petitioner after following requisite Rules and procedure,
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 which is depicted from the contents of the panchanama drawn on the spot.
20. The petitioner has questioned that there is violation of standing order No.1/88 dated 15.03.1988 especially Clause 1.5 as referred supra.
21. In the case on hand, even though this Court is not required to hold a mini trial to appreciate the merits or demerits of the case, since the petitioner has urged the ground of violation of standing order bearing No.1/88 especially Clause 1.5 as referred to supra.
22. The contents of the panchanama itself would show that there was no facility for the seizure at platform No.3 and therefore the petitioner was taken from platform No.3 to platform No.1 and actual recovery has taken place at platform No.1 and therefore prima facie this Court is of the opinion that there is no violation of standing order. Anyway, it is for the trial Court to decide whether there
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 was violation which vitiated the very seizure or not after full fledged trial.
23. Suffice to say that officials of NCB did not possess any previous enmity or animosity as against the petitioner herein so as to falsely implicate her in the case. Moreover, 995 grams of methamphetamine would cost approximately 2 crores as per the NCB and why would the officials of NCB would implant such a huge quantity of NDPS only with an intention to hookin the petitioner in the case.
24. Moreover, the seized NDPS is not easily available in the market as well. Under such circumstances, this Court is of the considered opinion that prima facie seizure of NDPS from the petitioner stands established to proceed against her with the case before the trial Court in accordance with law.
25. Since the petitioner is an African lady, who has been staying in India even after the expiry of her student visa in the year 2019 till up to the date of seizure which is on
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 06.01.2022, this Court is of the considered opinion that if the petitioner is enlarged on bail, there is every possibility of she fleeing away from justice and not return to this country at all. Therefore, the apprehensions expressed on behalf of the respondent - NCB is well founded given the attendant circumstances of the case.
26. Lastly, with regard to the ground urged that there is no quality report given by the FSL and charge sheet came to be filed cannot also be countenanced in law at this stage.
27. Further, the role that has to be played by the Court while entertaining application for grant of bail when the NDPS is of commercial quantity is no longer res integra. In this regard, this Court gainfully places reliance on the following judgments of the Hon'ble Apex Court, wherein, it is held as under:
"Babua vs. State of Orissa, (2001) 2 SCC 566
3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.
State of Kerala v. Rajesh, (2020) 12 SCC 122
17. The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that the accused is not
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NC: 2023:KHC-D:7444 CRL.P No. 100945 of 2023 guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:
"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 27-A 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."
(emphasis supplied)
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28. Applying the principles of law enunciated in the aforesaid decisions to the facts of the case, this Court is of the considered opinion that the grounds urged in the petition are hardly sufficient to entertain the bail request of the petitioner having regard to the fact that the seized NDPS is of commercial quantity.
29. Accordingly, the following order is passed:
ORDER Criminal petition is meritless and is hereby rejected.
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JUDGE HMB- Up to para 13 SH- Para 14 to end List No.: 1 Sl No.: 3