Karnataka High Court
Mr Fahim vs Union Of India on 23 December, 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P NO.8684/2021
BETWEEN
MR.FAHIM S/O MR.FAILZAL.K.,
AGED ABOUT 21 YEARS,
STUDENT OF FINAL YEAR B.E.
IN NITTE COLLEGE OF KARKALA, UDUPI,
R/AT HILL HOMES, NEAR PROVIDENCE COLLEGE,
FLORIKAN HILL ROAD, VENGERI, KOZHIKODE,
KERALA-673 010.
...PETITIONER
(BY SRI.HASHMATH PASHA SENIOR COUNSEL FOR
SRI.NASIR ALI, ADV.)
AND
UNION OF INDIA,
INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU,
BANGALORE ZONAL UNIT, OFFICE AT KATIGENAHALLI,
JAKKURU AERODROME, BANGALORE-560064.
....RESPONDENT
(BY SRI.MADHUKAR DESHPANDE, CGSC FOR RESPONDENT)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ENLARGE THE PETITIONER ON BAIL IN NCB FILE
NO.48/1/12/2020/BZU, ON THE FILE OF THE RESPONDENT NCB,
BANGALORE FOR THE OFFENCES UNDER SECTIONS 22(c), 23(c), 27,
27(A), 28, 29, AND 32-B(d) OF NDPS ACT PUNISHABLE UNDER
SECTION 22(c), 23(c), 27, 27(A), 28, 29 AND 32-B(d) OF NDPS ACT
WHICH IS PENDING IN SPL.C.C.NO.509/2021 ON THE FILE OF THE
XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE FOR NDPS CASES, BANGALORE CITY.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.12.2021 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY THROUGH VIDEO
CONFERENCE AT DHARWAD, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner/accused No.1 in NCB file No.48/1/12/2020/BZU, on the file of the respondent Narcotic Control Bureau (NCB), Bengaluru for the offences punishable under Sections 22(c), 23(c), 27, 27(A), 28, 29, and 32-B(d) of the Narcotic Drugs and Psychotropic Substances Act, (for short 'NDPS Act') punishable under Sections 22(c), 23(c), 27, 27(A), 28, 29, and 32-B(d) of NDPS Act pending in Spl.C.C.No.509/2021 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore City is before this court under Section 439 of Cr.P.C. seeking his enlargement on bail.
2. Heard Sri.Hashmath Pasha, learned Senior Counsel for Sri.Nasir Ali for the petitioner and Sri.Madhukar Deshpande, learned Central Government Standing Counsel for the respondent-State.
3. Learned Senior Counsel for the petitioner submitted that the petitioner is arrayed as accused No.1 and he had earlier -3- approached this court by filing Crl.P.No.7607/2020 seeking to enlarge him on bail. The said petition was came to be dismissed by this court vide order dated 31.07.2021. The petitioner was apprehended on 24.09.2020 and since then he is in judicial custody. Even though several grounds were raised in the earlier petition and the same were considered by this court, the procedural lapse committed by the investigating officer in seizing the contraband and drawing sample in contravention with the provisions of the NDPS Act was not highlighted before this court. Learned Senior Counsel would contend that as per the seizure panchanama produced as per Annexure-D, the contraband weighing 142 grams of MDMA was seized on 30.07.2020 and the sample was drawn at the time of seizure mahazar. The same sample was forwarded for chemical analysis on 06.08.2020. The investigating officer has not followed the procedure contemplated under Section 52(3) of the NDPS Act. The contraband that was seized was produced before the jurisdictional Magistrate for the purpose of inventory, but no sample was drawn at that time, as required under Section 52- A(2)(c) of the NDPS Act. When there is serious lapse in the -4- matter of drawing sample and when there is clear contravention of the statutory provisions, the accused is entitled to be acquitted. At least at this stage he is entitled to be enlarged on bail. The procedural lapse committed by the investigating officer is not a curable defect and therefore, the accused is entitled to take advantage of the same.
4. Learned Senior Counsel placed reliance on the decision of the Hon'ble Apex Court in the case of Union of India vs Mohanlal and Another1 to contend that, when the procedure contemplated under law in the matter of seizing the contraband and drawing sample are not followed, the same would go to the root of the matter and it is not a fit case for proceeding for trial. The fundamental defect in the investigation will definitely enure to the benefit of the accused. Therefore, he prays for enlarging the accused on bail.
5. Learned Senior Counsel further submitted that even though it is the contention of the prosecution that the petitioner used crypto currency and was dealing with it, that itself cannot 1 (2016) 3 SCC 379 -5- be a ground to detain him in custody. Dealing in crypto currency is not prohibited, but on the other hand, it is legalized. The materials collected by the investigating officer even if it is to be taken into consideration as it is, the petitioner had used only Rs.35,000/- that too on 24.02.2020 i.e., about 5-6 months earlier to the date of so called seizure of the contraband. There is no link between purchase of crypto currency and purchase of the contraband by the petitioner. A stray instance of using crypto currency cannot be linked to the offence in question. The prosecution is required to prove the chain of circumstances to connect the petitioner to the use of crypto currency for purchase of the contraband.
6. Learned Senior Counsel further submitted that even though earlier petition filed by the petitioner on similar grounds was considered by this court, filing of the subsequent petition is not barred. He placed reliance on the decision of the Hon'ble Apex Court in the case of Babu Singh and Others vs State of U.P.2 to contend that, even if the earlier application for bail was rejected, it need not necessarily preclude the accused from 2 (1978) 1 SCC 579 -6- moving the court for similar relief once again. Therefore, the learned Senior Counsel would submit that the petitioner is entitled to be enlarged on bail.
7. Learned Senior Counsel also submitted that accused No.2 in whose name the parcel was found is already enlarged on bail by this court, the trial in the matter would take sufficiently long period of time, the petitioner is a young student pursuing his studies and his detention in custody would amount to pre- trial punishment. Therefore, he is entitled to be enlarged on bail.
8. Learned CGSC opposing the submissions made by the learned Senior Counsel submitted that all the grounds now urged by the petitioner were already considered by this court in Crl.P.No.7607/2020 and the said petition was came to be dismissed on merits. No new grounds or materials are placed before this court to enlarge the petitioner on bail. The seizure mahazar was placed before this court at the time of considering the earlier petition. Similarly, use of crypto currency by the petitioner in dealing with the contraband was also highlighted while considering the earlier petition. Only after considering all -7- these materials on record, this court dismissed the petition filed by the petitioner. When no new grounds are made out, the petitioner cannot maintain the successive petition for bail. Learned counsel placed reliance on the decision of this court in the case of Jayanth and Others vs The State of Karnataka by Bannerugatta Police Station, Bengaluru3 and the decision of the Hon'ble Apex Court in the case of Kalyan Chandra Sarkar etc. vs Rajesh Ranjan alias Pappu Yadav and Another4 to contend that the petition being the successive bail petition is not maintainable.
9. Learned counsel further submitted that in Mohanlal (supra) the Hon'ble Apex Court taken up the proceedings suo moto, to consider the produce that is being followed for destruction of the contraband seized in different states and called for opinion from each of the stake holders from all the States regarding the procedure that is being followed for seizure, storage, disposal and destruction of the seized contraband and also about the judicial supervision over the same. While 3 ILR 2019 KAR 2881 4 AIR 2005SC 921 -8- disposing of the criminal appeal, the Hon'ble Apex Court directed the States to issue appropriate directions for speedy action on the administrative side and also on judicial side. There is reference to Standing Order No.1 of 1989 issued by the Central Government laying down the procedure that is being adopted by the investigating officers and sought for ensuring adoption of such procedure to ensure security from vulnerability of theft and replacement of seized drugs. Learned counsel further submitted that the Hon'ble Apex Court never barred drawing of samples at the time of seizing of the contraband. On the other hand, on the basis of the submission made by the learned Amicus Curiae it was held that if the sample could not be drawn at the time of seizure of the contraband, at least sample is to be drawn in the presence of the Magistrate who is authorized to draw samples and certify the seized contraband under the statute. In the present case, the investigating officer has adopted the procedure of drawing sample under the seizure mahazar at the time of seizing the contraband. No prejudice whatsoever is highlighted by the petitioner to challenge the said procedure adopted by the investigating officer. The procedure for seizing or drawing -9- sample as contemplated in the Standing Order No.1 of 1989 is strictly followed and moreover, seized contraband was produced before the learned Magistrate for inventory and certification. Under such circumstances, the petitioner cannot contend that there is any lapse in seizing of the contraband or in drawing the sample.
10. Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in the case of Supdt. Narcotics Control Bureau, Chennai vs R.Paulsamy5 to contend that non-compliance of the procedures could be considered only at the time of trial and it is too early to consider those aspects of the matter at the time of considering the bail application filed by the petitioner, at the initial stage.
11. Learned counsel submits that since there are no changed circumstances and the materials that are placed before this court prima facie disclose that the procedure contemplated is followed by the investigating officer, the petition filed by the 5 (2000) 9 SCC 549
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petitioner is not maintainable and the same is liable to be dismissed.
12. Perused the materials on record. The point that would arise for consideration of this Court is as follows:
"Whether the petitioner is entitled to grant of bail under Section 439 of Cr.P.C.?"
My answer to the above point is in the 'Negative' for the following :
: REASONS :
13. The petitioner who is arrayed as accused No.1 in NCB file No.48/1/12/2020/BZU, on the file of the respondent Narcotic Control Bureau (NCB), Bengaluru for the offences punishable under Sections 22(c), 23(c), 27, 27(A), 28, 29, and 32-B(d) of the NDPS Act punishable under Sections 22(c), 23(c), 27, 27(A), 28, 29, and 32-B(d) of NDPS Act had approached this court in Crl.P.No.7607/2020 seeking to enlarge him on bail under Section 439 of Cr.P.C. The said petition was considered on merits and was came to be dismissed vide of dated 31.07.2021.
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Even while considering the said petition, seizure mahazar now referred to by the learned Senior Counsel was placed before the court and the same was taken into consideration in appreciating the rival contentions of the parties.
14. It is the contention of the prosecution that a parcel had arrived at foreign post office, Chamrajpet, Bengaluru which was suspected to be containing contraband-MDMA. On the basis of the credible information, the NCB officials after getting necessary instructions from the Superintendent, visited the post office and seized the parcel in the presence of two panchas. The said parcel was booked from Netherlands, addressed to one Karthik Pramod, resident Manipal of Udupi District i.e., accused No.2. The address of the consignor was not found on the parcel, no postage was paid for it. When the parcel was opened, there were three plastic pouches and the same were containing purple coloured tablets. The appearance of the substance was tallying with the MDMA and it was weighing 142 grams. Sample was drawn and the contraband was seized under the mahazar in the presence of panchas.
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15. In Mohanlal (supra), the Hon'ble Apex Court considered standing order No.1 of 1989 dated 13.06.1989, which prescribes the procedure to be followed for seizure, sampling safe keeping and disposal of the seized drugs, narcotic and psychotropic substances, which is followed throughout the country. Ministry of Finance, Department of Revenue, Government of India, in terms of the Circular dated 23.02.2011 directed all the State Governments to follow the procedure prescribed in complying the order strictly. But however, the Hon'ble Apex Court suspected as to whether such procedure for seizing, sampling, safe keeping and disposal of the drugs is actually being followed persistently. Pilferage of the contraband and recirculation of the drugs in the market which is considered as major hazard and appointed an Amicus Curiae with a view to make a realistic review of the procedure for search, disposal or destruction of the narcotics and the remedial steps that need to be taken to plug the loopholes, if any. The Hon'ble Apex Court called for the reports from all the stake holders from each of the States and considered the same in the light of the reports submitted by the Amicus Curiae and found that no proper
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storage facilities are available in most of the States. It is also found that there was no certainty as to who is authorized to apply to the court for destroying the seized contraband and whether there has been any failure or dereliction in making such application.
16. With regard to seizure, sampling, the Hon'ble Apex Court noticed that, as per Section 52-A(2)(c) of the NDPS Act, the Central Government is required to prescribe by a notification the procedure to be followed for seizure, storage, and disposal of the drugs and psychotropic substances. In pursuance of the same, Standing Order No.1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband was issued. There is reference of two subsequent standing orders one dated 10.05.2007 and the other dated 16.01.2015 dealing with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. The Hon'ble Apex Court specifically considered para 2.2 of the Standing Order No.1 of 1989 which prescribes drawing samples
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from the seized contraband on the spot at the time of recovery itself. But the court considered that most of the States have claimed that no samples are being drawn at the time of seizure. It was noticed that it is only Directorate of Revenue Intelligence is the agency which claims that samples are drawn at the time of seizure, while Narcotic Control Bureau asserts that it does not do so. Therefore, it was opined that there is no uniform practice or procedure that is being followed by the States or the Central agencies in the matter of drawing samples. It is held that this is the area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case of the same are proved. Therefore, the said issue was dealt in detail in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples. The Hon'ble Apex Court referred to Section 52-A(2)(c) which prescribes that seizure of the contraband is to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the
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said provision and make an application to the Magistrate for the purpose of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples drawn. Therefore, as per Section 52-A(3) the process of drawing up samples has to be in the presence and under the supervision of the Magistrate and the entire exercise is to be certified by him to be correct.
17. After observing the position of law, the Hon'ble Apex Court considered the question of drawing of samples at the time of seizure which, more often than not takes place in the absence of the Magistrate. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section(2) and (3) of Section 52-A to constitute primary evidence for the purpose of the trial. It is specifically observed and stated that, suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. However, the Hon'ble Apex Court held
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that a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on the first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. Therefore, the Hon'ble Apex Court directed the Central Government to re-examine the matter and take suitable steps in the above direction. It is pertinent to note that learned Amicus Curiae appointed in the said case argued that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification etc. without any loss of time. In the light of this, the Hon'ble Apex Court held that the officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of
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accountability in the entire exercise, which is being neglected for variety of reasons. It is also held that seizure of the contraband and the sampling and certification cannot be left to the whims of the officers concerned. With regard to time-frame within which the officer has to act in accordance with Section 52-A of the Act, the Hon'ble Apex Court thought it fit not to prescribe a time- frame, but to suggest that an application for sampling and certification ought to be made without undue delay. However, the court summed up by saying that the sampling shall be done under the supervision of the Magistrate as discussed in paras 15 to 19 of its judgment. The Hon'ble Apex Court specifically directed the Central Government to re-examine the matter and take suitable steps in issuing the directions to the investigating officer in the light of the conflict between Standing Order No.1 of 1989 and the procedure contemplated under the statute. This being the position of law, I do not find any merit in the contention of the learned Senior Counsel to hold that since the sample was drawn at the spot under the seizure mahazar, the procedure adopted by the investigating officer gets vitiated and
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the entire seizure of the contraband and also the sample, is to be ignored.
18. In R.Paulsamy (supra), the Hon'ble Apex Court categorically held that it would amount to pre-judging the case made out by the prosecution regarding compliance with Sections 52 and 57 of the NDPS Act at the time of considering the bail application. The Hon'ble Apex Court reminded the presumption of law that all official acts are presumed to have been performed regularly. Such presumption can be rebutted only during trial and not merely saying that no document has been produced before the court at the time of considering the bail application.
19. The learned Senior Council contended that dealing with crypto currency is not prohibited and therefore, the petitioner cannot be linked with such dealing to the offence in question is considered in the light of the facts and circumstances of the case. Even though dealing with crypto currency is not completely barred, it is the contention of the prosecution that the petitioner is dealing with crypto currency for the purpose of purchasing the contraband and such dealings would be difficult
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to track. To contend that the petitioner was dealing with crypto currency for various dealings, the prosecution is relying on voluminous documents, it has to be proved during trial. Suffice it to say at this stage that prima facie materials are placed to connect the petitioner to the offence in question and it cannot be concluded at this stage that the petitioner is falsely implicated in the matter without any basis.
20. While passing the order on the previous petition filed by the petitioner, all these materials have been placed before this court and on consideration of the same, it was opined that the materials that are collected by the investigating officer prima facie sufficient to connect the petitioner to the offence in question and to contend that seized contraband was of commercial quantity of MDMA in the name of accused No.2 through Darkweb using the user name as 'FAHIMMESCO' through the mail-ID of the petitioner, for the purpose of retail distribution amongst others. It was also opined that in view of the materials that are placed before the court, it cannot be held that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged which is sine-qua-non for grant of bail to
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the accused under the Act. Even though learned Senior Counsel contended that there are serious procedural lapses in seizing the sample and preserving the same, the same cannot be accepted at this stage.
21. Even though filing and maintaining the successive bail petition is not completely barred, it is the settled proposition of law that the petitioner has to make out additional grounds which were not available at the time of considering the first bail petition or there should be sufficient materials which enables the court to form a different opinion than the one which was drawn at the first instance. But in the present case, none of these circumstances, could be found to consider the successive bail petition filed by the petitioner. Therefore, I am of the opinion that the petitioner is not entitled for bail. Hence, I answer the above point in the "negative" and proceed to pass the following:
ORDER The criminal petition is dismissed.
Sd/-
JUDGE MBS/-