Karnataka High Court
Sandeep C Kanth vs Union Of India on 3 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1281
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3rd DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.5262/2018
BETWEEN:
Sandeep C Kanth
S/o Chandrakanth
R/o No.27, 1st Floor, 8th 'A' Main,
Srirama layout, Kammagondanahalli,
Bangalore-560 015.
... Petitioner
(By Sri K.S. Vishwanath, Advocate)
AND:
Union of India
Narcotics Control Bureau
Bangalore Zonal Unit-560 063
through Intelligence Officer
Represented by SPP, Bangalore-01
... Respondent
(By Sri K.N. Mohan, Special Public Prosecutor)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in NCB F
No.48/1/10/2018/BZU of Narcotics Control Bureau,
Bangalore Zonal Unit, Bangalore, for the offences under
Section 8(c) r/w 20(b), 22, 27, 27A and 28 of NDPS Act,
which is pending on the file of Hon'ble Special Court for
NDPS, Bangalore.
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This Criminal Petition coming on for Orders, this day
the Court made the following:-
ORDER
The learned Special Public Prosecutor Sri. Mohan K.N. has filed detailed statement of objections. Same is taken on record.
The present petition has been filed by the petitioner/ accused No.2 under Section 439 of Cr.P.C. to release him on bail for the offences punishable under Section 80(c) r/w 20(b), 22, 27, 27A and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter called as 'NDPS' Act, for short) in Crime No.NCB F No.48/1/10/2018/BZU of the Narcotics Control Bureau, Bengaluru Zone Unit, Bengaluru.
2. I have heard the learned counsel appearing for the petitioner and the learned Special Public Prosecutor.
3. The case of the prosecution in brief is that; on 24.05.2018 at about 2.30 p.m., the Intelligence Officer of -3- the Narcotics Central Bureau, Bengaluru Zonal Unit, Bengaluru had received the information that drug trafficker by name Sandeep, who is aged about 30 years was going in a silver coloured CBZ motorbike to meet another drug trafficker by name Abhishek, who is also aged about 30 years at his residence at Nanjappa Layout, Vidyaranyapura, Bengaluru, for the purpose of drug business at about 5.00 p.m.
4. When the Intelligence Officer along with panchas were waiting from 4.30 p.m. it was found that one person carrying a bag came in a silver coloured CBZ motorbike and went inside the aforesaid house. They went inside the house, conducted search and found silver coloured Dell laptop and one wallet. After searching the wallet they found plastic pouch containing 20 LSD blotter papers weighing 0.48 gms., cash of Rs.14,000/-, State Bank Card, two passport size photos, voter card, Aadhaar card and driving license. When the Intelligence Officer asked about possession of the drugs, the petitioner went inside the -4- room, opened the cupboard and took out polythene pouch containing 29 LSD blotter papers weighing 0.57 gms., 13 Ecstasy pills weighing 5.26 gms., 85 gms of Hashish, 0.55 gms. of MDMA Crystals, 850 gms. of Ganja, Bank pass books, 6 live and 3 used 65 mm 12 bore cartridges, one black coloured Sony Vaio laptop, one Silver Black Coloured Dell laptop and a cash of Rs.65,460/-. All the articles were seized by drawing mahazar and a case was registered in this regard against the accused.
5. Learned counsel for the petitioner submitted that when petitioner/accused No.2 was produced before the Court he has been questioned as to when he was arrested, at that time he gave an answer that he had been arrested at 3.00 p.m. Actually, all proceedings have taken place at about 5.00 p.m. That itself clearly goes to show that the raid has not taken place at that time and the records have been created and prepared for the purpose of this case. He further submitted that as contemplated under the guidelines issued by the Narcotics Control Bureau, Delhi, -5- preliminary test has not been conducted so as to ascertain whether the seized substances are drugs or not. He further submitted that except the LSD blotter paper, the other articles which have been seized are less than the commercial quantity and as such, there is no violation of any of the provisions of the NDPS Act. He further submitted that seized LSD blotter papers have been sent for chemical analysis to Hyderabad, Kolkata, Delhi, but they have not been tested and returned to the Investigating Agency without any chemical analysis. The actual guidelines issued in this regard by the Narcotics Control Bureau, Delhi, that they have to get analysis of the seized material within 15 days or within 30 days maximum, but in the case on hand, already five months have been lapsed and no such analysis or FSL report has been obtained. This itself shows that the seized articles are not the drug within NDPS Act.
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6. He further submitted by relying upon the decision in the case of Hira Singh and Another Vs. Union of India and Another reported in (2017) 8 Supreme Court Cases 162 that the guidelines issued by the Narcotic Control Bureau is binding on the Investigating Agency. He further submitted that the petitioner/accused has not committed any offence and he is innocent and he is ready to abide by any of the terms and conditions to be imposed by this Court. He further submitted that if the petitioner/accused is detained in custody, his liberty is going to be curtailed. On these grounds, he prays to release the petitioner/accused No.2 on bail.
7. Per contra, Sri K.N. Mohan, learned Special Public Prosecutor, in support of his case, submitted that immediately after search and seizure, the drug detection kit has been used. The said drug detection kit has given a positive result and it has been confirmed with seized articles, i.e., hashish and other material, i.e., MDMA and Ganja. He further submitted that the petitioner/accused -7- No.2 is involved in a social offence, which is having an effect on the entire society. He further submitted that the quantity of the drug seized during the course of the raid itself clearly goes to show that the petitioner/accused No.2 is a habitual offender. If he is released on bail, he may not be available for the trial and he may involve in similar kind of activities. On these grounds, he prays to dismiss the petition.
8. I have carefully and cautiously gone through the contents of the complaint and other material, which have been produced along with the petition and also the decision which has been referred to by the learned counsel for the petitioner.
9. I am not having any difference of opinion with regard to the proposition of law laid down in the aforesaid decision. Abovesaid proposition of law which has been laid down is applicable only when the case has been tried and decision has been given on considering the material on -8- merits. But, in the instant case on hand, I have to consider whether the petitioner/accused No.2 is entitled to be released on bail.
10. During the course of argument, the learned Special Public Prosecutor brought to my notice that already chemical analysis report has been received in this behalf. As could be seen from the Examination Report, analysis has been made in respect of MDMA, Charas and Ganja. Though the said analysis result is positive, the said quantity is less than the commercial quantity or inter mediate quantity. But, in so far as seizure of LSD articles are concerned, same have been sent to the Central Forensic Science Laboratory, Hyderabad, Kolkata and Delhi and the letters issued by the Director clearly indicates the fact that the said articles have been returned citing the reason of non-availability of standard reference material of LSD samples.
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11. In that light, if the entire case is looked into, the other seized articles are less than commercial quantity, but in respect of the LSD is concerned, there is no material to hold that the said seized substance is a drug within the meaning of the NDPS Act. The drug detection kit result is not being the only analysis which has to be taken into consideration by the Court, but it is the F.S.L. report that has to be considered in this regard. Even a perusal of standing instruction No.1.18 of the Narcotics Control Bureau, New Delhi, indicates that the commercial report has to be obtained within fifteen days from the date of receipt of the sample and in the absence of the report, it cannot be inferred that the seized article is not covered within the provisions of the NDPS Act. But, the said observation will not come in the way of deciding the case on merits during trial.
12. Taking into consideration the above facts and circumstances and accused No.1 has already been released on bail in Criminal Petition No.5259 of 2018, by order
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dated 19-9-2018, even on the ground of parity, the petitioner is entitled to be released on bail. Hence, I am of the considered opinion that the material placed on record, prima-facie, does not make out a case as against the petitioner. Under the peculiar facts and circumstances of the case, if the petitioner is released on bail by imposing stringent conditions, it would meet the ends of justice.
13. Accordingly, the petition is allowed.
i) Petitioner/accused No.2 is ordered to be released on bail in NCB F. No.48/1/10/2018/BZU for the offences punishable under Section 8(c) read with Sections 20(b), 22, 27, 27A and 28 of the NDPS Act on executing a personal bond for a sum of Rs.2,00,000/- (Rupees two lakh only) with two sureties for the likesum to the satisfaction of the jurisdictional Court,
ii) He shall not tamper with the prosecution evidence in any manner,
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iii) He shall not leave the jurisdiction of the Court without prior permission,
iv) He shall appear before the Court below regularly till the trial is concluded, and
v) His original passport shall be handed over to the concerned Court, if it is not already surrendered before the Court.
Sd/-
JUDGE *ap/kvk