Karnataka High Court
Shri Mohamed Kasim Abdul Salam vs The Senior Intelligence Officer on 3 April, 2012
HIGH COURT OF KARNATAKA HIGKHi COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH | t1: IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 03" DAY OF APRIL 2012 oe, BEFORE | Shri Mohamed Kagir:i See | S/o. Mohamed Kasim, Door No.37, Chinna Chetty Kulam Street, - Thuvarankurichi, Maxaparai, | Trichy Rura!, Tarai Nadu-- 621 314. . Petitioner (By Shri Haren A Chacwaka, » Advocate The Senior Intelligence Officer, Directorate cf Revernie intelligence, Bargalore Zona! Umt, Bangalore ~ 560043. ... Respondent (By Shri Urvel N. Ramanand, Sertor Counsel & " Sentral Government Standing Counsel) . This Criminal Petition is filed under 439 Section of the Cede of Criminal Procedure praying that this Hon'ble Court may be pleased to release the petitioner . on-badl in DRI File No.S/IV/64/2011 of the Senior - Intelligence Officer, Directorate of Revenue Intelligence, Bangalore Zonal Unit, Bangalore - 560043, for the _- offences punishable under Sections 21, 27A and 29 of N.D.P.S. Act. This Criminal Petition coming on for orders on this ie day, the Court made the following: - IIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO: 12: The petitioner has been arrayed as accused Ne. in Special C.C.(N.D.P.S.) No. 09/2012 uit. 'the: file of Special Court for N.D.P.S. Cass, "Bangalore. 'The petitioner along with accused No: 1 ib aileged to. have committed violation of Section oA which is punishable under Section 25{A} of. tne HDPS. Act. 2. According to the case of the prosecution, the Officers af the: Directorate of 'Revenue Intelligence, Bangalore Zz onal Unit, received a credible information that tro persons by name Musakkar Nawas and Mohamed Kasi "Abdul Salam (petitioner herein) _-- tavelling to Kuala 'Lumpur by Air Asia Airlines flight No. 1212 ot 41.12. 2011, are attempting to smuggle Narcotic drug covered under N.D.P.S. Act by concealing "the same in their baggage. Thereafter, the Officer ; . secured the presence of the Panchas, appraised them about the information received and thereafter they went to International Airport, while they were waiting near the International Departure Hall, in the 1*t floor, beyond HIGH COURT OF KARNATAKA HIGHi COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH .3: the security hold area of Bangalore International Airport, they identified the petitioner and accused No.1, as the two persons stated to have ben smgging : narcotic drugs. Immediately, both of then were intercepted. On interrogation, 'they: disclosed 'their names and identity. 'They _ alzo produced their travel documents. On verifying the travelling documents, they found that this petitioner had a cheoked-in baggage and also a cabin bagange, while accused No.1 had only one cabin hageage. On veritication. of the cabin baggages found. im the 'poscessicn of two accused, no incriminating ¢ articles were found. Thereafter, check in beguage of this Petitioner was off loaded from the air mn orsft with ¢ the help of the air liners and on search of the | 'checked: "Mm baggage, it was found containing 15 plastic -- covers ° 'each containing one pair of black coloured | - * rexene foot wear bearing brand name 'Walker' with very -- 7 'thick rubber sole. On further verification of all those foot wears, it was found that inside the sole of the foot wear, there was plastic covers which contained white b- 1iGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO 4: coloured crystalline powder which responded positive for Ephedrine, a controlled substance covered under the | N.D.P.S. Act. The said objectionable articles were seized ; - ; along with the footwears and other. articles. The petitioner as well as accused No. 1, "were apprehended _ and they were subjected - to judioiat custody. After completing the investigation, the 'Investigating Officer filed the charge sheet Yor the violation of Section 9-A of NDPS Act, which | 3 punishable under Sections 25-A of the Act. The app 'lication Bled by the petitioner for grant of bail before the learned Special Judge came to be rejected. 'Therefore, he is before thie Court principally on a the ground that accused No.1 has already been granted MO bail by this Court in Criminal Petition No.732/2012, | 'therefore, on the principles of parity, he is entitled to be enlarged on bail. It is also contended that even on 7 * 'merits, he iz entitled to be enlarged on bail, since there oo ; "are no reasonable grounds to believe that he is guilty of the offence punishable under Sections 25-A of the Act. (ee HIGH COURT OF KARNATAKA HIGki COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH | :3; 3. The petition is opposed by the reapondenit, A detailed statement of objections has been filed inte : Yi 7 contending that the substance seized is a controlled ; substance, which in turn is a narcotic drug and regucd to the fact that the total weight of the substance seized | was 05.98 kgs., it would fall under commercial quantity, as euch the petitioner is not entitled ior bail, in view of the provisions. of the Section 7 of the Act. According to respondent the principlon of parity i ig not applicable to the patitioners since. the baggage in which the contraband articles were "found, belonged to this petitioner, therefore, the possession of the contraband oa articles : 8 attributable to the petitioner herein, as such ° 7 there are "reasonable grounds to believe that the " pottione: is . guilty of the aforesaid offences and in the light of the gravity and seriousness of the offence as well vs, ~ as the punishment prescribed for the same, the a - 'petitioner is not entitled to be enlarged on bail. 4. I have heard both sides. Rerused the records --
made available.
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5. As could be seen from the order dated 28.02.2012 passed by this Court in Criminal Petition, No.732/ 2012, this Court has granted bedl io accused 7 No.1 under Section 439 of the Code of "Criminal
6. According to the case of the prosecution, the baggage in which the contraband articles were found belonged to. this petitioner. "Therefore, principles of parity cannot he preaved into service in reepect of this petitioner. Nevertheless, on 1 perusal of the materials availatle on record at & the 'stage, I am of the considered opinion thet it. doce not prima facie indicate that the Os petitioner is 1 guilty of the offence punishable under i. Section 25-A of the Act.
- ? | - noticed supra, ever: according to the case of the prosecution, the baggage in which the contraband "articles were found, had already been checked-in into the air craft. Judicial notice of the fact may be taken that before the baggage gets checked-in it would pass through X-Ray scanning and if any objectionable fh HIGH COURT OF KARNATAKA HIGKi COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ( 7:
articles were found, the traveler would be asked to open the baggage before it is handed over to the air Ener.
Even as per the contents of the serzure mahazar, the ;
baggage had already been handed ever to the airlines and it was off lbaded from: the aircraft 'Thus, § it ie clear that the baggage had left the hands of. this petitioner and it was in the custody of the air liner from where it was brought hack - for the. purpore 'of verification. However, contents of the muhazar does not prima facie indicate. as. to 'whether or not 'the baggage off loaded from the aircraft and brought to the place where the mahazar waa drawn, was locked. The mahazar also does wn not. indicate aw to whether the baggage was opened by o, the petitioner with the key. Therefore, at this stage, the | 'coutents of the mahazar do not prima facie indicate that oo the baggage was in the custody of the petitioner. No
- * doubt, Section 37 of the N.D.P.S. Act imposes certain _ 7 'restrictions for grant of bail in relation to the offence punishable under the Act. According to Section 37(1) notwithstanding anything contained in the Code of bs 1iGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO
-8.
Criminal Procedure, no person accused of offences punishable for offences under Section 19 or Section 24 or Section 27-A and also for offexices involving | = commercial quantity shall be released on bail or on Rie own bond uniees the conditions. emumeratsd in the clauses (i} and {ii) therein are 1 tie. 'Thus, the offence purushable under Section 75-A i ig: not one of the offence enumerated in clause ol of Section, a7 of the Act. Of course, the offerice involving commercial quantity is also one of the offenses enumerated in clause (b). However, even according to the case of the prosecution, the substance seized was a controlled substance. Therefore, on on its own it is not a narcotic drug or psychotropic a . guketanoe. " In respect of controlled substance,
-independentiy, there is no notification issued by the Government specifying as to how much quantity would
- * fall. within the category of commercial quantity.
oN 'Therefore, to the facts of the present case restrictions imposed under Section 37 of the Act are not applicable. Section 2(viiXd) of the Act, defines "controlled & HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH :9: substance" to mean any substance which the. Central Goverrmnent may having regard to the" aveilable:
information as to its possible use in the prochuction or' | = manufacture of narcotic drugs | - payohotropie substance, by notification in the Official Gazeite 'declare to be a controlled substance: 'As per the notification bearing No.S.O. 1296(8} dated 28.12. 1999, a copy of which is made: availaiic by the learned Senior Counsel appearing . for the . respondent, Ephedrine and pseudoephedrine: and their" salts are declared as 'controlled substances" for the purpose of Section 2{vii}(d) of the hot. 'Thus, Ephedrine which is stated to have teen ecized in this case is a "controlled
- . substance", 'ae defined under Section 2(vii)(d) of the Act.
| Section 25-8 deals with the punishment for contravention of orders made under Section 9-A. As per S ; | S Section 25-A, if any person contravenes an order made _ 7 "under Section 9-A, he shall be punished with rigorous imprisonment for 10 years and also fine of Rs.1,00,000/-. Section HA deals with power to control a lIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO 710;
and regulate controlled substance. As per Section 9 A(1), if the Central Government is of the opinion that having regard to the use of ary controled substance i in' 1 the production or manufacture. of any narootio arg s ar psychotropic substance, it is. + neceusary or "exprdient 'Se to do in the public interest, it may by order provide for regulating or prohibiting the production, marnuifacture, supply and "distribution thereof "and trade and commerce. therein. In exerciee of power under Section 9- A of the 'Act, Central Government has made "The Narcotic Drag ard Peychotropic Substances (Regulation of Controlled Substances) Order 1993, regulating, oe macufacture, transportation, selling, export and import to. of Controlled Substances. Regulation 6 sets out the | requirements to be followed while exporting or importing a Controiled Substances. A copy of public notice 7 * No. 21(RE-2000) 1997 to 2002 dated 17.07.2000 titled oe - 'as Export of Ephedrine and its salts pseudoephedrine and its salts conditions thereof, produced by the learned Senior Counsel for respondent, stipulates that Export of Ao HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH fll:
Ephedrine and its salts is subject to production of No Objection Certificate from the Narcotics Commissioner of India, Gwalior. However, in the case on hand, a noticed supra, even according to the prosecution, the baggage had been checked in and fir the purpose of verification, it was off loaded fom the Airoraft, but the contents of the mahnar prima facie does not indicate ae to the condition or the baggage. "Therefore, having regard to the facte and circumsiance of the case and the materials o on n recon, at this stage Tam of the considered opinion that there: are ; reasonable grounds to believe that the petitioner is. rot guilty of offence punishable
-- ursler Sections 25A of the Act. All the decisions cited by ie earned Senior Counsel for respondent deals with See imposed under Sectimm37 of the Act. As, I a have held that the prima facie, the provisinos of Section 7 S 37 are rot attracted to the facts of the case, none of the | "decisions apply to the facts of the case. Hence, they are not referred to in detail. Therefore, the petitioner is entitled to be enlarged on bail. Of course, the fs 1IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO 212:
apprehension of the respondent -prosecution could, be allayed by imposing strict conditions. 7 |
8. Accordingly, the potition is "plowed. the" | petitioner is ordered to be enlarged on baal | da Special C.C.No.09/2012 on the file of the Special Court for NDPS Bangalore City on his | executing a personal bond for a sum of Rs. 100,007. with one loca! solvent surety for the like suit to the satisfaction of the trial Court and subject to the further conditions that, Bi} The 'petitioner 'shall not tamper or ; S terrorixe the 'Frosecution witnesses in ~ any manner.
, ii) : The petitioner shall not indulge m any | "ects similar to the one alleged in the = ii) The petitioner shall appear on all
- hearing dates before the trial Court without fail.
ivy) The petitioner shall not leave the juriadiction of the Special Court without express permission thereof. Jn HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH 13:
v) Pass port of the petitioner which | ja stated to have been seized by: the Directorate of Revenue Inteligence, shall continue to. temain in their | It is made clear that the observations aly :
the course of this order are only for the purpose of disposal of this bail petition end the special Court ghall not be influenced by any of these - observations while dis posing. of the matter on merits.
ay, ~ JUDGE Rsh