Karnataka High Court
Nonso Joachin Udedike vs State Of Karnataka on 9 June, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.1298/2020
BETWEEN:
NONSO JOACHIN UDEDIKE
S/O. MATIAS,
AGED ABOUT 36 YEARS,
R/AT 35, 1ST FLOOR, 2ND CROSS,
KNSS LAYOUT, BRINDHAVAN-3
JAYANTHI, HORAMAVU
BANGALORE-460 043. ...PETITIONER
(BY SRI. SWAROOP ANAND R., ADVOCATE)
AND:
STATE OF KARNATAKA
BY RAMAMURTHY NAGAR POLICE STATION
BANGALORE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560 001. ...RESPONDENT
(BY SRI. R.D. RENUKARADHYA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.493/2019 OF RAMAMURTHY NAGAR P.S., BENGALURU
CITY FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 8(c),
21(b), 21(c) OF THE NDPS ACT AND SECTION 14 OF THE
FOREIGNERS ACT.
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THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.493/2019 of Ramamurthy Nagar Police Station, Bengaluru registered for the offences punishable under Sections 8(c), 21(b) and 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and Section 14 of the Foreigners Act.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State/Respondent.
3. The factual matrix of the case is that on receipt of credible information on 24.11.2019, the Police Inspector suo- motu registered the case against the petitioner after coming to know that the petitioner was residing in the address bearing No.35, 1st Floor, 2nd Cross, KNSS Layout, Brindhavan-3, Jayanthi Nagar, Horamavu, Bengaluru, that he was in possession of the narcotic intoxicating material. Immediately, he went to the 3 residence of the petitioner and confirmed the information. Thereafter, he was taken to the Gazetted Officer i.e., the Assistant Commissioner of Police and he was subjected to personal search. On personal search, 28 grams of cocaine and 0.15 grams of LSD strips were found and he also seized mobile phone, Toyota Corolla car and cash of Rs.10,000/- from the petitioner and mahazar was conducted from 11.30 a.m. to 3.30 p.m. It is the allegation that the petitioner came to India for business purpose and violating the Visa conditions, is doing the business of selling the narcotic intoxicating material, which is a menace to the Society. Hence, a case was registered against the petitioner for the offence punishable under Sections 8(c), 21(b) and 21(c) of the NDPS Act and Section 14 of the Foreigners Act.
4. The main contention of the petitioner before this Court is that Section 42 of the NDPS Act has not been complied with and so also not made any entry in the Station House Diary regarding the credible information received by the complainant. No test was conducted to come to the conclusion that the seized articles were cocaine and LSD strips. In the absence of any such 4 report, keeping a person in the custody violates the liberty of the person as envisaged under Article 21 of the Constitution of India.
5. The learned counsel would also contend that clause 1.18 of the Standing Instruction No.1/88 issued by the Narcotics Control Bureau requires that the analysis of the drug is completed within 15 days from the date of receipt of the sample. It further requires that the results of quantitative test should be sent to the officer from whom the samples were received within the next 15 days. The same is missing in the case.
6. The learned counsel in support of his contentions would rely upon the order of this Court in Criminal Petition Nos.5659 and 5519 of 2019 decided on 11.11.2019 and brought to the notice of this Court paragraph Nos.3 and 4 of the said order with regard to the non-compliance of the Standing Instructions and also the non-compliance of mandatory provisions of the Special Enactment-NDPS Act.
7. The learned counsel further referring to the order of this Court in Criminal Petition Nos.8110 and 7908 of 2018 5 decided on 25.02.2019 brought to the notice of this Court paragraph No.7 of the order with regard to expeditious analysis and the object of chemical examination and quantitative analysis is to find out as to whether the accused was in possession of commercial quantity or smaller or less than commercial quantity, so as to know as to what punishment he is liable.
8. The learned counsel referring to these two judgments would contend that there is no material before the Court that the seized articles are contraband. Hence, he is entitled for bail and he would abide by the conditions that may be imposed by this Court.
9. Per contra, the learned High Court Government Pleader appearing for the State would contend that this Court has to take note of Section 37 of the Special Enactment-NDPS Act. Under the said provision, the petitioner has to make out the case to exercise the discretion to enlarge him on bail. The offences are menace to the Society and the offence is against the Society at large and not against an individual. When such being the case, the Court has to analyze the material available on record. 6 In support of his contentions, he relies upon the judgment of the Apex Court in the case of SUPERINTENDENT, NARCOTICS CONTROLS BUREAU, CHENNAI v. R.PAULSAMY, reported in (2000) 9 SCC 549 and would contend that having regard to the provisions of Section 37 of the NDPS Act; it is held that it would be too early to take into account and judge the matter regarding non-compliance with the formalities during the bail stage. Since recording of findings under Section 37 of the Act was a sine-qua non for granting bail under the Act. The Apex Court referring Section 37 and also Sections 52 and 57 of the NDPS Act set aside the bail granted in the said case and made an observation that non-compliance of Section is not a ground to enlarge him on bail and the same has to be tested during the course of trial.
10. The learned High Court Government Pleader also brought to the notice of this Court paragraph No.7 of the recent judgment of this Court passed in Criminal Petition No.162/2020 dated 29th May 2020 with regard to expeditious analysis. This court referring to the judgment of the Apex Court in the case of UNION OF INDIA v. BAL MUKUND AND OTHERS reported in 7 (2009) 12 SCC 161, discussed with regard to Section 37 of the NDPS Act and also referring to the judgment in the case of Paulsamy (supra), has come to the conclusion that the material would indicate that there is a material as against the petitioner and hence, does not find any reasons to enlarge him on bail and this Court has to consider the recent judgment.
11. Having heard the arguments of the learned counsel for the petitioner and also the learned High Court Government Pleader appearing for the respondent-State, this Court has to examine as to whether it is a fit case to admit the petitioner for bail invoking Section 439 of the Cr.P.C.
12. Having looked into the contents of the complaint, it is clear that it is a specific case of the complainant that he had received the credible information that this petitioner is engaged in trafficking the narcotic contraband and at present he is staying in a house. Immediately the complainant on receipt of information, went to the residence of the petitioner and apprehended him and brought before the Gazetted Officer. The petitioner was subjected to personal search and 28 grams of 8 cocaine and 0.15 grams of LSD strips were seized and mahazar was drawn. The very contention of the petitioner is that they have not complied with Sections 42, 50 and 52 of NDPS Act and having taken note of the averments of the complaint, it is clear that he was subjected to personal search and while conducting the personal search, Section 50 has to be complied.
13. In the case on hand, the very complaint discloses that he was subjected to personal search before the Gazetted Officer i.e., Assistant Commissioner of Police. Hence, the contention of the learned counsel for the petitioner that he was not subjected to personal search in the presence of the Gazetted Officer, cannot be accepted. However, counsel for the petitioner contended that the Gazetted Officer belongs to the same department, who is an Assistant Commissioner of Police. There is no any law that he has to be subjected to personal search other than Gazetted Officer who belongs to a different department, but only the proviso says that he should be subjected to personal search in the presence of Gazetted Officer and that has been done.
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14. The other contention of the petitioner's counsel is that there is no any material before the Court to show that the contraband seized at the instance of the petitioner is narcotic contraband and also there is no report in support of the same. The Apex Court in the judgment in the case of Paulsamy (supra), has made it clear that having regard to the provisions of Section 37 of the Act, it would be too early to take into account and judge the matter regarding non-compliance with the formalities during the bail stage. The provisions of Section 37 of the Act is also very clear that the petitioner has to make out a case before the Court to exercise the discretion in favour of the petitioner/accused.
15. In the case on hand, the contraband was seized in the presence of Gazetted Officer and no doubt, the State has also not placed any report with regard to the quality and also quantity and with regard to the analysis report as to whether it is contraband or not and mere delay in getting the expeditious analysis report, as contended by the learned counsel appearing for the petitioner, is not a ground to exercise the discretion in 10 favour of the petitioner. The Court has also taken note of the wisdom of the legislature in bringing the special enactment and the very object of bringing this enactment is to combat the menace in the Society. In the case on hand, the contraband was seized at the instance of the petitioner. The principles laid down by the Apex Court in the judgment in the case Paulsamy (supra), is clear that while exercising the discretion, that too during the bail stage, it would be too early to take into account and judge the matter regarding non-compliance with the formalities.
16. Having taken note of the principles laid down in the judgment referred supra and the judgment which the learned counsel for the petitioner has quoted, which is of the year 2019 and the recent judgment of this Court dated 29th May 2020 wherein this Court has discussed with regard to the principles laid down in the judgment of the Apex Court and rejected the bail petition, this Court also has to take note of the recent judgment of this Court while exercising the powers. 11
17. Having taken note of the material available on record and also in view of the discussions made above, it is not a fit case to exercise discretion in favour of the petitioner by invoking Section 439 of Cr.P.C. to grant the bail. While granting the bail, the Court has to take note of the gravity of the offence and whether the offence alleged against the petitioner affects the Society at large and not individual. In the case on hand, it is nothing but an offence against the Society at large. Hence, it is not a fit case to admit him to bail under Section 439 of Cr.P.C.
18. In view of the discussions made above, I proceed to pass the following:-
ORDER The petition is rejected.
Sd/-
JUDGE PYR