Karnataka High Court
Shri Selvaraj Palani vs The Intelligence Officer on 12 December, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.6651 OF 2012
BETWEEN:
Shri Selvaraj Palani
S/o Palani, # 11/13,
Kadavakkottai, Pathiraigudi P.O,
Avudaiyarkoil Taluk, Pudukkottai (DT)
Tamil Nadu - 614 629
...Petitioner
(By Shri Harish A Charvaka, Advocate)
AND:
The Intelligence Officer,
Directorate of Revenue Intelligence,
Bangalore Zonal Unit,
Bangalore-560043
...Respondent
(By Shri Urval N.Ramanand, Sr. Counsel)
This Criminal Petition is filed under Section 439 of
the Code of Criminal Procedure praying that this
Hon'ble Court may be pleased to enlarge the petitioner
on bail in DRIF.No.S/IV/33/2012 pending before the
XXXIII ACC & Single Judge & Spl. Judge (N.D.P.S),
Bangalore for the offence P/U/S 37 of N.D.P.S. Act.
2
This Criminal Petition coming on for orders on this
day, the Court made the following: -
ORDER
In this petition filed under section 439 of CR.P.C and Section 37 of NDPS Act, the petitioner has sought for an order to release him on bail in connection with case registered by the respondent in DRIF No.S/IV/33/2012.
2. According to the case of the prosecution, the officer of the Directorate of Revenue Intelligence, Bangalore Zonal Unit, received a specific information on 02.08.2012 that the petitioner is caring some drugs covered under NDPS Act and that he is flying and he was scheduled to fly to Kuala Lumpur, Malaysia by Malaysian Air Lines Flight No. MH 193. Immediately, they intercepted the petitioner in the International Airport, Bangalore and as desired by him his personal search was made in the presence of a Gazetted Officer but nothing was found in his person. It was revealed that he had a checked-in-baggage which has been 3 loaded into the Aircraft. Therefore, the checked-in- baggage of the petitioner was offloaded from the Aircraft and brought to the place where the search was being made. Thereafter, on verification of the tag found on the checked-in-baggage, it tallied with the counter foil luggage tag in possession of the petitioner and the petitioner also admitted that the said baggage belongs to him. Thereafter, when the checked-in-baggage was opened, it was found to contain nineteen packed carton boxes with the description as "ready to eat cereals". On opening those boxes, they found to contain sealed aluminum foil cover and on opening of one of the aluminum foil cover, they noticed white coloured crystalline powder. Sample was drawn from one of the aluminum foil covers and the test revealed that the substance is 'katamine' which is a substance prohibited under NDPS Act. Therefore, all the 19 boxes containing the white coloured crystalline powder was weighed and it was found weighing totally 19.5 kgs and the same was seized under a mahazer. The petitioner was arrested 4 and brought to the office of the respondent wherein, he made voluntary statement confessing about his attempt to transport the contraband substance. Thereafter, when the petitioner was produced before the jurisdictional Court, he was remanded to judicial custody. The application filed by the petitioner for grant of bail came to be rejected by the Special Judge.
3. The petition is opposed by respondent and a detailed statement of objections have been filed.
4. I have heard learned counsel for the petitioner and Sri.Urval N. Ramanand, Senior Counsel and Standing Counsel for the respondent and perused the records made available.
5. No doubt, at this stage, the materials on record prima facie indicate that on specific information received, the officials of the Directorate of Revenue Intelligence, Bangalore Zonal Unit intercepted the petitioner on suspicion that he is carrying some contraband articles prohibited under NDPS Act. The 5 materials further indicate that when the personal search of the petitioner was conducted in the presence of Gazetted Officer, no incriminating materials were found. Even according to the prosecution, the alleged contraband substance was found in the checked-in- baggage of this petitioner. The checked-in-baggage had already been handed over to the officials of the Airliner and even according to the prosecution, the checked-in- baggage was offloaded from the Aircraft and brought to place where the mahazer was being drawn. The contents of the mahazer, a copy of which is made available for perusal of this Court, does not indicate as to whether the checked-in-baggage offloaded from the Aircraft and brought to the place where the mahazer has been drawn, was locked and whether it was opened by the petitioner. The condition of the baggage has not been stated in the mahazer. Thus, even from the case of the prosecution, the alleged checked-in-baggage in which the contraband substance was found was not in physical possession of this petitioner. It had already 6 been handed over to the Airliner, after it had been scanned under the X-ray. In the absence of any indication in the mahazer that the checked-in-baggage which was offloaded from the Airliner was found properly locked and either the key of the lock was in possession of the petitioner or that the number lock if any put to the checked-in-baggage was opened by this petitioner, at this stage, it is prima facie difficult to accept that petitioner had loaded those contraband articles into the checked-in-baggage. Therefore, at this stage, I am of the considered opinion that there are no reasonable grounds to believe that the petitioner is guilty of any of the offence under the act. No doubt, total quantity found in the baggage weighed 19.5 Kgs. Therefore, it was commercial quantity. The bar under Section 37 of the NDPS Act was only to the effect that in cases where a person is accused of offence punishable under Sections 19, 24 or 27A involving commercial quantity shall not be released on bail or on his own bond, unless an opportunity is given to the Public 7 Prosecutor to oppose the application and where the public Prosecutor opposed the application and the Court should be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
6. Opportunity has been afforded to the prosecution to oppose the prayer made for bail. Detailed objections have been filed, both before the learned Special Judge and also before this Court and the Senior counsel appearing for the prosecution has been heard.
7. Learned Senior Counsel placed reliance on the decision of the Apex Court in the case of Customs, New Delhi Vs. Ahmadalieva Nodira reported in 2004 Crl.L.J 1810. In the said decision, their lordships of the Apex Court have considered the scope of Section 37. As per the law laid down in the said decision, unless the conditions contained in Section 37 are complied with, in 8 respect of an offence involving the commercial quantity, accused person cannot be released on bail. There is absolutely no quarrel as to the principles of law laid down in the said decision. As noticed supra, having regard to the materials on record, this Court has found that there are no reasonable grounds to believe that the petitioner is guilty of the offence. Therefore, no sustenance can be drawn from the said decision.
8. At this stage, in the light of the discussions made above, this Court is of the considered opinion that there are no reasonable grounds to believe that the petitioner is guilty of the offences. The materials on record does not indicate that the petitioner is likely to commit similar offences. Having regard to the facts and circumstances of the case, I am of the considered opinion that the petitioner is entitled for bail.
9. Hence, the petition is allowed. Petitioner is ordered to be released on bail in DRIF No.S/IV/33/2012 on the file of XXXIII Additional City 9 Civil & Sessions Judge on his executing a personal bond for Rs.2,00,000/- with two local solvent sureties for the like sum to the satisfaction of the learned Special Judge and subject to further conditions that,
i) He shall not tamper or terrorise the prosecution witnesses in any manner.
ii) He shall not indulge in any acts similar to the one alleged in the case.
iii) He shall not leave the jurisdiction of the Special Court without express permission thereof.
iv) He shall surrender his passport before the Special Court, if already not seized.
v) He shall mark his attendance with the respondent - Investigation Officer, on every Friday between 10:00 a.m. and 05:00 p.m. till the filing of the final report.
SD/-
JUDGE GH