Karnataka High Court
Mr. Kalam Narendra @ Pandu vs Union Of India on 11 June, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.3700/2024
BETWEEN:
MR. KALAM NARENDRA @ PANDU
S/O ANJANEYULU
AGED 28 YEARS
R/AT FLAT NO 308
ROYAL HERITAGE APARTMENT
OLD MADRAS ROAD
DOORAVANINAGAR
BANGALORE - 560 016
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE)
... PETITIONER
(BY SRI: HASMATH PASHA, SR. ADV. FOR
SRI: KARIAPPA .N.A., ADVOCATE)
AND:
UNION OF INDIA
NARCOTICS CONTROL BUREAU
BANGALORE ZONAL UNIT
THROUGH ITS JUNIOR
INTELLIGENCE OFFICER
BANGALORE - 560 063
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR
FOR NCB, HIGH COURT OF
KARNATAKA, BANGALORE - 560 001)
... RESPONDENT
(BY SRI: RAJASHEKAR .S., Sr. CENTRAL GOVERNMENT COUNSEL)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB
CRIME NO.48/1/02/2024/BZU ON THE FILE OF THE RESPONDENT
NCB, BENGALURU ZONAL UNIT, BENGALURU FOR THE OFFENCE
2
PUNISHABLE UNDER SECTION 8(C), 20(B)(II)(B), 22(C), 27 AND
28 OF NDPS ACT WHICH IS PENDING ON THE FILE OF THE XXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE FOR NDPS CASES, BENGALURU CITY.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 06.06.2024 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioner-accused is before this Court seeking grant of bail under Section 439 of Cr.P.C. in NCB Crime No.48/1/02/2024/BZU of NCB Police, pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru, registered for the offences punishable under Sections 8(c), 20(b)(ii)(B), 22(c), 27 and 28 of the Narcotic Drugs Psychotropic Substances Act, (for short 'NDPS Act').
2. Heard Sri Hasmath Pasha, learned senior advocate for Sri N A Kariappa, learned counsel for the petitioner and Sri S Rajashekar, learned Senior Central Government Counsel for the respondent - Union of India. Perused the materials on record.
3. Learned senior advocate for the petitioner submitted that the petitioner is the sole accused. In fact, he 3 is the victim as he was addicted to drugs. The petitioner was apprehended on 05.01.2024 and since then, he is in judicial custody. The investigation is in progress even after 150 days. He further submitted that two voluntary statements of the accused were recorded by the Investigating Officer. The one before apprehending and another after taking him to custody. In both the statements, the victim has admitted that he procured the consignment and it is his categorical statement that it was procured for self consumption. Therefore, at the most Section 27 of NDPS Act could be attracted and not Section 22(c) of NDPS Act, as invoked by the prosecution.
4. Learned senior advocate further submitted that as per Section 2(xxviiia) the word 'use' is defined in relation to narcotic drugs and psychotropic substances, means any kind of use except personal consumption. Under such circumstances, the contraband that was seized cannot be termed as it was procured for peddling and therefore, Section 22 of NDPS Act cannot be invoked. The petitioner is a M-Tech graduate and an employee in Bengaluru. He has no criminal antecedents.
4
5. Learned senior advocate has placed reliance on the decision of the Hon'ble Apex Court in Ragini Dwivedi alias Gini alias Rags Vs State of Karnataka1, to contend that the Hon'ble Apex Court has categorically held that when Section 27 of NDPS Act is invoked, Sections 21, 21(c), 27-A, 27-B and 29 of NDPS Act could not be made out. It is only Section 27 of NDPS Act being the offence of consuming the drug by the accused could be made out. Therefore, it was held that other Sections were wrongly invoked by the prosecution.
6. Learned senior advocate also placed reliance on the decision of the co-ordinate Bench of this Court in Mr.Vaibhav Gupta Vs Union of India2 to contend that even in similar case, where the drug was procured by the accused, criminal proceedings was quashed by finding that the offence is only under Section 27 of NDPS Act, but not under other provisions.
7 Relying on these decisions, learned senior advocate would submit that in the present case also, the 1 (2021) 16 SCC 719 2 WP No.11193/2021 DD 24.01.2022 5 Investigating Officer has not collected any materials to invoke the provisions of Section 22(c) of NDPS Act. If at all, only Section 27 of NDPS Act could have been invoked the same is bailable offence which is punishable with one year imprisonment.
8. Learned senior advocate further submitted that according to the case made out by the prosecution, the LSD procured by the petitioner was weighing 0.11 grams and therefore, it is of commercial quantity. Only 0.01 gram is extra to term it as commercial quantity. The statement of the accused discloses that minimum saleable quantity of LSD is 10 strips and therefore, the petitioner has procured only 10 strips for the purpose of self consumption. A margin is to be given while considering the weight of contraband as to whether the petitioner had intention to procure the commercial quantity of contraband. In his case, such intention is conspicuously missing. Therefore, Section 22(c) of NDPS Act cannot be attracted.
9. Learned senior advocate further submitted that it is obligatory on the part of the Investigating Officer to inform 6 the accused about the grounds of his arrest in writing. It is not a mere formality, but an obligation on the part of Investigating Officer. Unless this requirement of law is fulfilled, the arrest and remand will be illegal. In the present case, the grounds of arrest was not given to the petitioner in writing. The grounds were not communicated to the petitioner. Even though copy of arrest memo is produced by the prosecution, the personal search of the accused discloses that no arrest memo was found in his possession immediately after such arrest. Therefore, the contention of the prosecution that arrest memo was served on the accused cannot be accepted.
10. Learned senior advocate further submitted that even the remand order of the Special Court discloses that there is total non application of mind while remanding the accused to custody. There is no reference to arrest memo in writing served on the accused or his advocate. Under such circumstances, the arrest and remand is bad under law and the petitioner is entitled for his release forthwith. In this regard, learned senior advocate placed reliance on the decisions of the Hon'ble Apex Court in Prabir Purkayastha 7 Vs State (NCT of Delhi)3 and Pankaj Bansal Vs Union of India and Others4 to contend that in similar circumstances in both these cases the Hon'ble Apex Court ordered for release of the accused forthwith on the ground that the grounds of arrest was not communicated to the accused in writing at the time of arrest. He further referred to Sections 51 and 52 of NDPS Act read with Section 50 of Cr.P.C to get support to his contention.
11. Learned senior advocate further submitted that Section 37 of NDPS Act is not a complete bar for releasing the accused on bail. The requirement of law is satisfaction of the Court regarding the conditions mentioned therein. When the quantum of contraband is just 0.01 gram higher than the intermediate quantity, the rigor of Section 37 of NDPS Act cannot be strictly applied. In this regard, he placed reliance on the decisions in Lakhwinder Kaur Vs State of Punjab5, Balwinder Singh Vs State of Punjab6 and Jagjit Singh @ Jagga Gill Vs State of Punjab7.
3 2024 SCC Online SC 934 4 2023 SCC Online SC 1244 5 2020 Supreme (P & H) 1203 6 2022 Supreme (P & H) 1105 7 2020 Supreme (P & H) 775 8
12. Learned senior advocate submitted that even though FSL report is obtained, no quantitative analysis was undertaken. Moreover, each of the strips were not subjected to qualitative analysis. Under such circumstances, the petitioner is entitled for grant of bail. He referred to Rule 14 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules 2022 (for short 'the NDPS Rules') to contend that subjecting the contraband for both qualitative and quantitative analysis is a must. The rules is brought into force after the decision in Hira Singh Vs Union of India8. Even after lapse of 150 days the prosecution is not able to place the quantitative analysis report. On that ground also, the petitioner is entitled for grant of bail.
13. Learned senior advocate placed reliance on the decision in Bharat Chaudhary Vs Union of India9 and also decision in Shekappa and another Vs Directorate of Revenue Intelligence10, to contend that the Hon'ble Apex Court has categorically held that the quantitative analysis of 8 AIR 2020 SC 3255 9 2021 (20) SC 50 10 Crl.P.No.12347/2023 DD 17.01.2024 9 the samples is a must within a reasonable time. Placing reliance on Bharat Chaudhary (supra), the co-ordinate Bench of this Court in Shekappa (supra) enlarged the accused on bail after finding that there was no quantitative analysis of the contraband seized in the matter.
14. Learned senior advocate submitted that since there is serious lapse in the case made out by the prosecution and when 0.01 gram of contraband is added to bring it within the ambit of commercial quantity, the same is to be taken note of by this Court to enlarge the accused on bail. The petitioner is an IIT graduate from Delhi and Madras working as an Engineer. He has no antecedents to deny the bail. Therefore, he prays for allowing the petition.
15. Per contra, learned Senior Central Government Counsel opposing the petition submitted that the parcel which was received in Foreign Post Office suspected to be containing the contraband. It was opened and found that it was containing 34.38 grams of ganja and 0.11 grams of LSD which is of commercial quantity. When controlled delivery of the parcel was tendered, it was the petitioner who accepted it 10 and paid the charges through UPI. He categorically admitted procurement of contraband through dark web by paying through crypto currency.
16. Learned Senior Central Government Counsel further submitted that the petitioner had filed a petition under Articles 226 and 227 of the Constitution of India and under Section 482 of Cr.P.C. seeing quashing of criminal proceedings. The said petition was already dismissed by the co-ordinate Bench of this Court, rejecting all the contentions now urged before this Court including the claim that Section 22(c) of NDPS Act could not have been invoked by the prosecution. The petitioner himself admitted that he procured the contraband through dark web by using crypto currency. The investigation is being conducted in detail.
17. Learned Senior Central Government Counsel further submitted that all the grounds urged by the learned senior advocate regarding non service of grounds of arrest in writing to the accused, non application of mind by the learned Special Judge while remanding the accused to the custody, the contraband seized is not of commercial quantity and that 11 if at all the accused is an addict and procured the contraband for his personal consumption, were raised before the co- ordinate Bench of this Court in the writ petition filed by the petitioner in Writ Petition No.8449 of 2024 seeking to quash the entire proceedings registered against him by the respondent; to quash invocation of provisions of Section 22(c) and 28 of NDPS Act; consequently to quash the arrest memo and also to declare that the arrest of the petitioner on 05.01.2024 as per the arrest memo was illegal; consequently, the order of remand dated 06.01.2024 and 08.01.2024 and detention of the petitioner in custody is illegal and it is in abuse of process of law. Learned Senior Central Government Counsel submitted that the co-ordinate Bench rejected all such contentions by passing a detailed order and dismissed the writ petition vide order dated 27.05.2024. A categorical findings are recorded by the co-ordinate Bench of this Court regarding the prima facie materials that are placed before it.
18. Learned Senior Central Government Counsel further submitted that now even the FSL report is received, according to which, all the 10 strips of LSD seized were subjected to examination and its net weight was found to be 12 111.0 mg, i.e., excluding the weight of polythene pouch containing the same. The result of the examination clearly discloses that LSD has been detected in those 10 strips and cannabinoids of cannabis plant have been detected in 32.30 grams of substance. Therefore, now the contention of the prosecution is further strengthened by the FSL report. The very same contention cannot be once again entertained by this Court in this petition.
19. Learned Senior Central Government Counsel referred to Section 22 of NDPS Act, where there is reference to purchase of psychotropic substance which is punishable under the provision. He also referred to Section 23 to contend that the import of the narcotic drugs and psychotropic substance as in the present case is also an offence punishable under this Section. Learned Senior Central Government Counsel by referring to Section 27 of NDPS Act contended that the section refers to the person who consumes the narcotic drugs of psychotropic substance and it does not refer to either purchase or import of the substance. He also drawn the attention of the Court to Section 28 of Act where the punishment is prescribed for attempting to commit any of the 13 offences punishable under chapter IV of NDPS Act as provided for the offence.
20. Learned Senior Central Government Counsel submitted that the petitioner has categorically admitted that he imported the substance through dark web by paying through crypto currency. He also admitted that it is not for the first time he is importing the drug. Learned Senior Central Government Counsel produced the copy of the account statement pertaining to the petitioner issued by HDFC bank, wherein, there is an entry dated 05.01.2024 for having paid the sum of Rs.2023/- to one Naganna N K, who is the postmaster through UPI - phonepay for having received the controlled delivery of the parcel. The petitioner admitted that there was controlled delivery of the parcel as provided under Section 50-A of NDPS Act. He also admits that 34.38 grams of ganja and 10 strips of LSD were imported by him. It was the conscious act of the petitioner in importing/purchasing the substance which squarely attracts the penal provisions invoked by the respondent.
14
21. Learned Senior Central Government Counsel further submitted that the copy of arrest memo dated 05.01.2024 produced in this case disclose that the offence committed by the accused is clearly narrated, with reference to the quantity of contraband, voluntary statement given by the petitioner. The arresting officer has also recorded his satisfaction regarding commission of offence by the petitioner under the specific provisions of NDPS Act and the same was intimated to the petitioner in writing, the grounds of arrest was also explained to him. It is to be noticed that the accused has acknowledged in the very same arrest memo that he understood the grounds of his arrest and also intimation of the same to his brother over mobile phone. The mobile phone number of the brother of the accused is also referred in the acknowledgement and the petitioner has signed the same. Under such circumstances, the contention now raised by the learned senior advocate cannot be accepted.
22. Learned Senior Central Government Counsel also referred to Section 42(1)(d) of NDPS Act to contend that this special enactment authorizes the Investigating Officer to detain and search the person and if he thinks proper to arrest 15 him, if he has reason to believe that he has committed any of the offences under the Act. Therefore, the NDPS Act gives special powers to the Investigating Officer to detain the person and to search before his arrest and under such circumstances, the contention of the learned senior advocate that on personal search of the petitioner the copy of arrest memo referred to by the prosecution was not found with him and therefore, the arrest was bad under law, is to be rejected.
23. Learned Senior Central Government Counsel submitted that even though learned senior advocate referred to number of decisions of this Court and the Hon'ble Apex Court, none of them are applicable to the facts of the present case. He further submitted that the investigation is almost at the concluding stage and the final report will be submitted before completion of the statutory period. Strong prima facie materials are placed against the petitioner even at this stage. Section 37(1)(b)(ii) of NDPS Act makes it mandatory to the Court to satisfy itself that the petitioner is not guilty of the offence and that he is not likely to commit any offence before considering to enlarge the petitioner on bail. Looking to the materials that are placed before the Court, the Court cannot 16 record such finding and therefore, the petition is liable to be dismissed. There are strong prima facie materials against the petitioner. Looking to the bar under Section 37(1)(b)(ii) of NDPS Act, the petitioner is not entitled for grant of bail. Accordingly, he prays for dismissal of the petition.
24. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?"
My answer to the above point is in 'Negative' for the following:
REASONS
25. The case made out by the prosecution is that on 02.01.2024, a credible information was received regarding a parcel received in the foreign post office in the name of one Pandu. It is suspected that the parcel is containing narcotic drugs and psychotropic substance. Therefore, the parcel was opened in the presence of witnesses and a mahazar was drawn. It was containing one plastic pouch with 10 strips/blot 17 papers suspected to be LSD and another pouch containing some jelly candy, which was tested with the help of drug testing kit, which gave the positive report for ganja. 10 LSD strips/blot papers were weighing 0.11 grams, whereas the ganja was weighing 34.38 grams. The address of the consignee mentioned on the shipment was that of one Pandu, No.308, Royal Heritage Apartment, Old Madras Road, Bengaluru. Therefore, the controlled delivery of the parcel as provided under Section 50-A of NDPS Act was executed. It was received by the petitioner by paying the requisite custom duty. The petitioner was enquired who admitted that he booked the drugs through dark web by paying the consideration through crypto currency. After following the procedures as contemplated under law, the voluntary statement of the petitioner was recorded. The copy of voluntary statement of the petitioner is produced along with the petition, wherein, he admitted receiving of the parcel by paying an amount of Rs.2,023/- as custom duty. He also admitted that he had ordered the ganja and LSD for his consumption. He also states that he is consuming drugs like 18 ganja and LSD since long time and used to purchase it through dark web by paying bit coins.
26. Learned senior advocate for the petitioner admits all these facts. But contends that procurement of the drugs was for his own consumption and therefore, at the most only Section 27 of NDPS Act could have been invoked and not any other provisions of law. In this regard, he places reliance on the decision in Ragini Dwivedi (supra). The facts and circumstances of the said case are entirely different, as the accused in the said case was found in a party and was under
the influence of drugs. It was held that even though the appellant was charged for the offence under Section 21(c), 27-A and 27-B and 29 of NDPS Act, prima facie, it could be only under Section 27 being the offence of consuming drugs at parties. But in the present case, the facts narrated above disclose that the petitioner consciously placed an order for procuring the drugs and imported the same. Moreover, admittedly even earlier he procured the drugs in a similar manner. It is also admitted that the petitioner has not voluntarily subjected himself for treatment in any de-addiction centre.19
27. Learned senior advocate also placed reliance on the decision of the co-ordinate Bench of this Court in Mr.Vaibhav Gupta (supra) in support of the above contention. The said petition was filed under Articles 226 and 227 of the Constitution of India seeking quashing of criminal proceedings. Even though serious allegations were made against the accused in the said case, during investigation nothing was unearthed to allege commission of offence punishable under Sections 21 and 27A of NDPS Act. It was found that the accused was addicted to drugs and he was found to have taken treatment voluntarily in the de-addiction centre. Considering these facts and circumstances, the Court held that invocation of Sections 21 and 27-A of NDPS Act to prosecute the petitioner is not just and proper and that he is entitled to claim immunity in accordance with Section 64-A of NDPS Act. Accordingly, the criminal proceedings against the accused therein was quashed.
28. In the present case, even though it is the contention of the petitioner that he is addicted to drugs, it is not his contention that he ever voluntarily sought to undergo medical treatment for de-addiction from the hospital or 20 institution maintained or recognized by the Government or a local authority and undergone such treatment. Moreover, as discussed above, the offence made out against the petitioner squarely falls within the ambit of Section 8(c) read with Sections 20(b)(ii)(A), 22(c) and 28 of NDPS Act. Under such circumstances, the contention of the petitioner that it is only Section 27 of NDPS Act that could have been invoked or that he is entitled for immunity from prosecution as provided under Section 64-A of NDPS Act cannot be accepted and no such immunity could be extended to him.
29. Learned senior advocate contended that the LSD strips was weighing only 0.11 grams even according to the prosecution. It is only 0.01 gram extra to term it as commercial quantity. The petitioner has stated in his voluntary statement that minimum saleable quantity is 10 strips. Moreover, admittedly it was in a pouch. Therefore, this extra 0.01 gram could be given as a margin and therefore, it cannot be said that the contraband seized falls within the category of commercial quantity. 21
30. The copy of examination report issued by the Central Forensic Science Laboratory, Hyderabad, is produced by the learned Senior Central Government Counsel for the respondent. The Scientific Officer weighed 10 strips that were received for examination excluding the polythene pouch and its net weight is again mentioned as 111.0 mg. Whether the petitioner is entitled for any relaxation or not in that regard could be considered only at the time of trial but not at this stage. The said report further states that LSD has been detected in Ex.PS-1 i.e., 10 paper strips and Ex.PS-2 i.e., 32.30 grams of multi colour jelly candy is the cannabis plant. Therefore, it is clear that the contraband seized is the LSD and the ganja as contended by the prosecution and the entire substance were subjected to qualitative analysis to find the result as above.
31. Learned senior advocate relied on the decision in Lakhwinder Kaur (supra), where the High Court of Punjab and Haryana granted bail to an accused taking into consideration the long pendency of the proceedings. In Jagjit Singh (supra), the very same Court granted bail to the accused on the ground that the contraband was marginally 22 higher than the commercial quantity and finding that the final report has already been submitted and charge was already framed, but there was discrepancy in the statements of witnesses. In Balwinder Singh (supra), the Court has considered the bail for the accused again on similar grounds that the contraband seized was marginally higher than the commercial quantity. The final report is already submitted and therefore, held that the bar under Section 37 of NSPS Act is not a absolute bar to deny bail.
32. But in the present case, even though the quantity of LSD was marginally higher than the commercial quantity, the fact remains that admittedly the petitioner is in the habit of procuring the contraband through dark web by paying bit coins. Even as per the FSL report, the drugs were found to be ganja and LSD as contended by the prosecution and the investigation is still in progress.
33. The next contention raised by the learned senior advocate is that, the quantitative analysis of the contraband is not yet received, rather, the contraband was not subjected to quantitative analysis. He placed reliance on Rule 14 of NDPS 23 Rules to contend that the chemical laboratory is required to submit its report within 15 days and that if the quantitative analysis require longer time, such report should be submitted to the Court within next 15 days and therefore, according to the learned senior advocate invariably in each and every case the qualitative and quantitative analysis is a must. In this regard, he placed reliance on the decision in Bharat Chaudhary (supra), whereunder, according to the prosecution 1,37,665 tablets of different types, collectively weighing 90 kgs described as psychotropic substance, from 4 different locations belonging to co-accused were seized. Small samples were drawn and sent for chemical examination. The examiner has reported that the quantitative analysis of the sample could not be carried out for want of facilities. Under such circumstances, the Hon'ble Apex Court held that in the absence of any clarity so far as quantitative analysis of the samples, the prosecution cannot be heard at this preliminary stage to contend that the accused were found in commercial quantity of psychotropic substance. It is observed that when large number of tablets have been seized which admittedly contained herbs and medicines meant to 24 enhance male potency, it is held that they do not attract the provisions of NDPS Act. It was also observed that none of the tablets were seized in the said case by the prosecution during the course of search conducted either at the office or residence of the accused. In view of these fact and circumstances, it was held that the accused are entitled for grant of bail.
34. Learned senior advocate also placed reliance on the decision in Shekappa (supra), wherein, the co-ordinate Bench of this Court considered the facts of the case that consignments in Kempegowda International Airport, Bengaluru were intercepted which were containing various types of medicinal tablets which were seized under two different mahazars. However, when the samples were sent for examination only qualitative test report was received, but not the quantitative test report. The Court placing reliance on Bharat Chaudhary (supra), held that considering the huge quantity of tablets that were being exported by the accused who is one of the qualified doctor and a registered medical practitioner and the export was based on prescription issued by him, held that Rule 14 of NDPS Rules should have been 25 followed. But the facts in the present case is entirely different. As stated supra 34.48 grams of ganja and 10 strips of LSD weighing 0.11 grams was seized under the mahazar and the same were sent for chemical examination. No samples were drawn from these seized articles for forwarding for scientific examination. The entire contraband was subjected to examination by the Scientific Officer and he reported that 32.30 grams of jelly candy tested positive for cannabinoids of cannabis plant and LSD has been detected in 10 strips sent for examination. Under these circumstances, I am of the opinion that there is no need for getting quantitative analysis report and the contention raised in that regard is liable to be rejected.
35. Even though, learned senior advocate contended that the NDPS Rules were framed during 2022 which takes away the effect of decision of the Hon'ble Apex Court in Hira Singh (supra), I do not find any support for the same. On the other hand, NDPS Rules were framed and as per Rule 29, the Standing Order No.1/88 dated 15.03.1988, the other Standing Orders and the Gazette Notification referred to therein were repealed in view of these Rules. Therefore, it 26 can safely be concluded that the Rules were framed only to repeal various Standing Orders and the Notifications issued from time to time and to bring the same in the form of Rules to have authenticity. In Hira Singh (supra), the Hon'ble Apex Court considered the seizure of mixture of narcotic drugs and psychotropic substances with one or more neutral substances and held that the quantity of such neutral substances is not be excluded, but on the other hand, the same is to be taken into consideration along with the actual content by weighing of offending drugs while determining the small or commercial quantity of narcotic drugs and psychotropic substances. In view of the facts and circumstances of the present case, the decision in Hira Singh (supra), may not be applicable and the contention raised by the learned senior advocate in that regard is liable to be rejected.
36. The other contention raised by the learned senior advocate is with regard to not informing the grounds of arrest to the accused as required under law. He placed reliance on Prabir Purkayastha (supra) and Pankaj Bansal (supra) to contend that when the mandatory requirement of intimating 27 the accused regarding the ground of arrest in writing is not complied with, the accused is in fact entitled for bail without reference to any other facts and circumstances of the case. Learned senior advocate would contend that it is a serious lapse on the part of the prosecution in not informing the ground of arrest to the accused in writing which is not a curable defect and hence, the petitioner is entitled to be released forthwith.
37. I have gone through the decisions referred to above. In Prabir Purkayastha (supra), the Hon'ble Apex Court considered the facts of the case registered under Unlawful Activities (Prevention) Act 1967, where the copy of FIR was never brought in the public domain as it was not uploaded on the website by the Investigating agency. Admittedly, copy of FIR was not provided to the accused despite an application having been made in that regard till after the order of police custody. Copy of FIR was furnished for the first time to the advocate representing the accused on 05.10.2023 even though it was registered on 17.08.2023. Admittedly, the grounds of arrest was never communicated to the accused. Therefore, it was observed that apparently the 28 entire exercise was done in a clandestine manner which was nothing buy a blatant attempt to circumvent the process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of legal practitioner of his choice so as to oppose his prayer for police custody and to seek bail and was misled even in the Court. The Hon'ble Apex Court observed that even when an advocate was appointed to defend the accused, there was no rhyme or reason as to why the information about the proposed remand application was not sent to the advocate. Taking into consideration all these serious facts, the Hon'ble Apex Court held that the appellant before it is entitled for direction for release from the custody.
38. In Pankaj Bansal (supra), the Hon'ble Apex Court again considered the facts of the case that was registered under the provisions of Prevention of Money Laundering Act 2002 in the light of Article 22(1) of Constitution of India to observe that the person arrested shall not be detained in custody without informing about the grounds of his arrest as it violates his fundamental right 29 guaranteed under the Constitution. It also observed that mode of conveying the information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. The Court has referred to Section 19 of PMLA Act and held that the authorized officer has to record in writing the reason for forming the belief that the person proposed to be arrested is guilty of the offence punishable under PMLA Act. Section 19(2) requires forwarding of a copy of the arrest order alongwith the materials in his possession to the adjudicating authority. It is held that it is the constitutional right of the accused to be informed of the grounds of his arrest. The Court also noticed that mode of informing the grounds of arrest to the accused is different at different parts of the Country and evolved a prescribed format of the arrest order as extracted therein, with a direction to forward the format to all the authorities who exercise the power under Section 19(1) of PMLA Act. The Court further noticed that there is no valid reason assigned as to why copy of such written grounds of arrest was not furnished to the accused in the said case. The contention taken that grounds of arrest was read out and explained in Hindi was not accepted by the 30 Court. It is stated that such furnishing of copy of grounds of arrest is to be under the acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer. Under such circumstances, the Court held that the accused is entitled to be released forthwith.
39. In the present case, it is pertinent to note that the petitioner himself has produced the copy of arrest memo dated 05.01.2024 which reads as under:.
ARREST MEMO "Consequent upon the seizure of 0.11 Grams (10 Numbers of Blotter Papers) of LSD and 34.38 Grams of Ganja Gummies (Ganja) on 02.01.2024 at Foreign Post Office, 5th Main, 4th Cross, Chamrajpet, Bangalore - 560 018 and on the basis of corroborative evidence and voluntary statement of KALAM NARENDRA ALIS PANDU S/O ANJANEYULU, AGED 28 YEARS dated 05.01.2024 recorded u/s 67 of the NDPS Act, 1985 having reason to believe that Kalam Narendra Alis Pandu S/O Anjaneyulu, Aged 28 Years R/O-308, Royal Heritage Apartments, Old Madras Road, Doorvani Nagar, Bangalore - 560 016 (Rented House) And Permanent Address: No-1- 26, Denduluru, Mandalam, Dosapadu, West Godavani, Dosapadu, Andhra Pradesh - 534 442 has 31 committed an offence punishable u/s 8 (c) r/w 20b (ii) (A), 22 (c), 27 and 28 of the NDPS Act. Accordingly, I place KALAM NARENDRA ALIS PANDU S/O ANJANEYULU AGED 28 YEARS under arrest on 05.01.2024 at 22:30 Hrs. The grounds of the arrest have been explained to the arrestee".
40. The arrest memo is signed by the Arresting Officer/Intelligence Officer and it bears the endorsement of the accused in his handwriting and signed by him, which reads as under:
"I understood the ground of my arrest, and I intimated to my brother on his mobile number 8885334466 about my arrest".
41. When admittedly such arrest memo with grounds of arrest with the satisfaction of Arresting Officer to believe that the accused has committed the offence as stated above was served on the accused under his acknowledgement for having understood the grounds of his arrest and the fact of arrest was also intimated to his brother on his mobile number, I do not find any merit in the contention raised in that regard. 32
42. It is also pertinent to note that learned senior advocate referred to the order sheet of the Special Court produced as per Annexure-J to contend that the services of an advocate was not provided to the accused when he was remanded to custody and that the learned Magistrate has not applied his mind as to whether the grounds of arrest was communicated to the accused in writing or not. But the order sheet discloses that the arrest memo with medical certificate of the accused was produced along with the accused and the accused was enquired and it is stated that his arrest was intimated to his cousin brother and the accused is aware of the charges made against him. He was informed about legal aid provided to him. One Mr. NRM advocate even filed the vakalath on behalf of the accused. Thereafter, learned Magistrate after being satisfied himself that the Investigating Officer has followed the arrest formalities, remanded the accused to custody. Therefore, the contention that the petitioner was not informed about the grounds of his arrest in writing or that there was non application of mind by the learned Magistrate is also liable to be rejected. 33
43. It is pertinent to note that the learned Senior Central Government Counsel for the respondent has drawn the attention of this Court to the order passed by the co- ordinate Bench of this Court in Writ Petition No.8449 of 2024 dated 27.05.2024, wherein, the petitioner herein had sought for quashing of the criminal proceedings registered against him by the respondent - police by filing the petition under Articles 226 and 227 of the Constitution of India. As rightly contended by the Senior Central Government Counsel almost all the grounds now urged before this Court were raised before the co-ordinate Bench of this Court and the Court has rejected all those grounds and the writ petition came to be dismissed. A categorical finding was recorded by the Court that un-controverted allegations found against the petitioner makes out a prima facie case for the offence punishable under the provision of NDPS Act, which are cognizable and non- bailable and therefore, investigation in the case is necessary. Ofcourse at the time of passing this order, the FSL report was not made available to the Court. But even then it is held that there is clear contravention of Section 8(c) of NDPS Act. The Court has recorded a categorical finding that blotter paper is a 34 carrier material for psychotropic substance - LSD. These blotter papers are ingested with LSD and therefore, it forms an integral part of the ingestion by the user of the same. It is also a medium of consumption of the drug. It is held that if the weight of the offending drug along with blotter papers is considered, the same totally weighs 0.11 gram, which is of commercial quantity. Therefore, similar argument addressed by the petitioner that the contraband seized was of small quantity or less than commercial quantity, was rejected. When once the co-ordinate Bench of this Court has already formed an opinion on the basis of the materials that are placed before the Court and admittedly when the order was not challenged by the accused, it will not lay in the mouth of the petitioner to re-iterate the same grounds once again for the purpose of seeking bail.
44. After considering the rival contentions raised in light of the prima facie materials that are placed before the Court, I am of the opinion that there are strong prima facie materials against the accused for having committed the offence under the provisions of NDPS Act as invoked by the prosecution. Section 37(1)(b)(ii) of NDPS Act creates a bar for 35 enlarging the accused on bail. Under such circumstances, unless the twin conditions mentioned therein are satisfied by the Court, I do not find any support to form such opinion as required under law and on that count also, the petitioner is not entitled for grant of bail.
45. In view of the above, I answer the above point in the 'Negative' and proceed to pass the following:
ORDER Criminal Petition is dismissed.
Sd/-
JUDGE *bgn/-