Karnataka High Court
Noble vs State Of Karnataka on 21 February, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.1186/2018
BETWEEN:
Noble
S/o Ihesiulo
Aged 33 years
R/at No.15, Near Christian College
MVR Layout, Honi Main Road
Horamavu Agara
Bangalore-560 049.
Native of Nigeria. .. PETITIONER
(By Sri K S Vishwanatha, Adv.)
AND:
State of Karnataka
Hennur Police Station
Bangalore-560 043.
Represented by the
State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001. .. RESPONDENT
(By Sri K Nageshwarappa, HCGP)
This criminal petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in
Cr.No.8/2018 of Hennur P.S., Bengaluru City for the
2
offence punishable under Section 22(B) of Narcotic Drugs
and Psychotropic Substances Act.
This petition coming on for Orders this day, the
Court made the following :
ORDER
This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Section 22(b) of Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') registered in respondent Police Station Crime No.8/2018.
2. The prosecution case in brief On 10.01.2018 at 10.00 am. the information alleged to have been received by Inspector of Police, CCB, about the selling of drugs by one black complexion African person, who used to come in white colour two wheeler bearing KA-03 HN-4110 near BBMP office, Honi main road, Horamavu Agara Post, Bangalore. Upon this information the Inspector of police arranged a team and collected panchas, took permission from official superior and went to the above said place at 3 12.20 p.m. and the Inspector of Police noticed one person standing with two wheeler and on observation and after confirmation, they surrounded and apprehended him on the spot and on enquiry, he admitted about dealing of drugs. After confirming this, secured the presence of ACP of CCB police by name B.S. Mohan Kumar and after his arrival, said to have given option of search. Then he opted for search before gazetted officer and therefore, since, ACP was the gazetted officer conducted search. On conducting search of the petitioner, they said to have found 18 gms of MDMA, mobile phones, laptops, Rs.4000/- cash, back pack bag and one two wheeler, all the items were seized under mahazar and submitted report. On the basis of the said complaint, the case was registered by the respondent police.
3. I have heard the learned Counsel appearing for the petitioner-accused and the learned High Court Government Pleader appearing for the respondent-State. 4
4. I have perused the averments made in the bail petition, FIR, complaint and the other materials on record.
5. Looking to the complaint averments, there is no specific mention that after receipt of the credible information by the complainant, reduced the same into dairy, which is maintained for registration of such information. Therefore, this itself goes to show that there was no compliance of mandatory requirements of Section 42(1) of NDPS Act. Even there is no specific averments with regard to Section 42(2) of the NDPS Act wherein it says that within 72 hours of the said entry of the said information, a copies thereof shall be furnished to his immediate superior officer. Therefore, there is no compliance of Section 42(2) of the NDPS Act.
6. Apart from that, the materials go to show that 18 gms. of MDMA was seized from the person of petitioner herein. When there was a personal search, section 50 of the NDPS Act comes into play. For compliance of 5 requirements of section 50 of the NDPS Act, there is duty of the police that they have to explain to the petitioner that he is having the legal right about exercising option for conducting search whether it is to be before the gazetted officer or before the Magistrate. Looking to the prosecution material, there is no averment that the police have explained that the petitioner is having legal right of exercising option.
7. Though it is the contention of the prosecution that they have seized 18 gms. of MDMA, but the prosecution has not produced the qualitative as well as quantitative test. Therefore, there is no compliance of requirements of standing instructions.
8. Instruction No.1.18 of Annexure-I in the standing instruction is with regard to expeditious test. It reads as under:
"Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings under N.D.P.S. Act, 1985. In many cases the Court may refuse to extend 6 police/judicial remand beyond 15 days to be dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis requires longer time, the results of the qualitative test should be dispatched to the officer from whom the samples were received within the aforesaid time limit on the original copy of the Test Memo so that Court proceedings can start immediately. In the next 15 days the results of quantitative test (purity of the drug) should also be indicated on the duplicate test memo and sent to the officer from who the samples were received."
9. Therefore, filing the qualitative test report within 15 days from the date when the article was sent to the FSL for examination is must and mandatory. But here admittedly, according to the prosecution, no such qualitative test is produced before the Court or concerned police officer. Unless and until such report is produced, the contention of the prosecution that it was a pure drug confronted article weighing 18 gms. cannot be accepted, unless it is ascertained by the concerned FSL. 7
10. The petitioner has denied the entire allegations made in the complaint and he has contended that there is false implication of his name in the case. Apart from that as per the case of prosecution, they said to have conducted seizure mahazar and seized the drug i.e., 18 gm MDMA. Therefore, at present nothing is to be seized from the possession of the petitioner. From the date of arrest, he is in custody. He has undertaken that he is ready to abide by any condition that may be imposed by this Court. The alleged offences are not exclusively punishable with death or imprisonment for life.
11. The compliance of mandatory requirements of Section 42(1) and 50 of the NDPS Act are relevant material to take into consideration even while deciding the bail petition which is dictum of the Apex Court in many decisions. Hence, looking to all these aspects of the matter, I am of the opinion that it is the fit case to exercise discretion in favour of the petitioner. 8
12. Accordingly, petition is allowed. Petitioner- accused is ordered to be released on bail for the offences punishable under Section 22(b) of Narcotic Drugs and Psychotropic Substances Act registered in respondent Police Station Crime No.8/2018, subject to the following conditions:
i. Petitioner shall execute a personal bond for the sum of Rs.1,00,000/- and furnish one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner shall appear before the concerned Court regularly.
iv. The original passport of the petitioner shall be handed over to the concerned Court, if it is not already surrendered before the Court.
Sd/-
JUDGE Cs/-
Ct-SG/-