Karnataka High Court
Ejem Peter vs The State Of Karnataka on 27 March, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 27TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.7314 OF 2016
BETWEEN:
Ejem Peter,
S/o Peter,
Aged about 37 years,
Residing at No.28, Maruthi Layout,
Sampigehalli,
Yelahanka - 560 064
Bengaluru.
...Petitioner
(By Shri Hashmath Pasha, Advocate)
AND:
The State of Karnataka,
By Sampigehalli P.S.,
Bengaluru - 560 064.
Represented by
State Public Prosecutor,
Bengaluru - 560 001.
...Respondent
(By Shri K.Nageshwarappa, High Court Government Pleader)
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This Criminal Petition is filed under Section 439 of Code
of Criminal Procedure praying to enlarge the petitioner on bail
in Cr.No.130/2016 of Sampigehalli P.S., Bengaluru for the
offence punishable under Section of NDPS Act.
This Criminal Petition coming on for Orders this day, the
court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondent.
2. The petitioner is before this court seeking bail. The Trial Court has rejected the application for bail. It was claimed that out of the quantity said to have been seized of narcotic drugs and psychotropic substances, samples were drawn in small quantities namely, 5 grams, 125 gram and 415 grams of Cocaine and 5 grams and 260grams of Hashish and another packet containing 66 grams of cocaine and sent to the Forensic Science Laboratory (FSL). It is at this stage that the bail was sought. The trial court has taken a view that in terms of the decision of the apex court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, 2011(1)SCC 694, where 3 guidelines have been issued as to the parameters to be taken into consideration for grant of bail in such cases and the observation of the Supreme Court that just as the liberty is precious to an individual, society's interest in maintenance of peace, law and order is also important and therefore, in the interest of the society, to safeguard against the population being supplied such drugs, it was necessary to reject the bail application of the petitioner, who was accused of dealing in drugs.
3. The learned Counsel Shri Hashmath Pasha raises an important question as to the prima facie requirement of demonstrating that even if it is assumed that the substances seized from the person of the petitioner were narcotic drugs and psychotropic substances, it would be necessary for the prosecution to demonstrate in the first instance that it was a quantity which could be considered as commercial quantity and which could attract a stringent punishment and that the substances seized were indeed narcotic drugs and psychotropic 4 substances which could be classified as any of the items falling under the Notification appended to the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as the 'NDPS Act', for brevity). In this regard, he would now furnish a copy of the report of the test carried out on the samples that were sent to the FSL and would point out that out of the five items, article No.1 had responded positive for the presence of charas and it was not indicated as to what was the percentage of charas that was found. Insofar as articles no.2 and 5 are concerned, it is again found that they were found positive for the presence of cocaine and paracetamol. Insofar as articles no.3 and 4 are concerned, there was negative report for the presence of cocaine. Therefore, the report only was a qualitative analysis of the samples that were sent for examination. Coupled with such qualitative test, a quantitative test also requires to be conducted and the quantitative test must again indicate that the narcotic drug or psychotropic substance was of a percentage which would render the substance so seized 5 as being of a commercial quantity. As for instance, if what is alleged to be cocaine, contained cocaine only to some percentage and if it was adulterated with other substance, it could not be construed as cocaine quantifying as a commercial quantity. This will enable the accused to straight away have the benefit of doubt as to the alleged quantity that was seized as being narcotic drug and psychotropic substance. In the face of the report indicating that two of the samples tested negative for the presence of any narcotic substance, it was very significant that the quantitative test also be conducted on the material that was seized. A charge sheet along with the entire documents relied upon by the prosecution is produced and it is evident that no quantitative test has been carried out. In this regard, the learned Counsel would draw attention to the Central Rules and Notifications, published by the Customs and Central Excise Department, New Delhi, particularly, with reference to Standing Instruction No.1188 with regard to drawal, storage, 6 testing and disposal of samples from seized narcotic drugs and psychotropic substances and the procedure prescribed therein.
It is contended that Standing Instruction No. 1.18 relates to expeditious analysis of narcotic drugs and psychotropic substances and the same reads as follows:-
"1.18. Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings under N.D.P.S. Act. 1985. In many cases the court may refuse to extend Police/judicial remand beyond 15 days in the absence of a chemical report. Accordingly, it is essential that the analysis is completed and the report is dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis required longer time, the results of the quanlitative test should be despatched to the officer from whom the samples were received within the aforesaid time limit on the original copy of the Test Memo that Court proceedings can start immediately. In the next 15 days the results of quantitative test (purity of the drug) should also be indicated on the duplicate test memo and sent to the officer from whom the samples were received."
And that a Test Register also being required to be maintained is specified under Clause 1.19, which reads as follows:-
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"1.19 All results both the qualitative and quantitative tests should be entered into the Register of samples (para 1.15). This register is intended to serve as a reference and as such should be quite durable. It should carry the results and the date of despatch with reference to the Test Memo. There should be clear and adequate reporting of the results in the Test Memo. As soon as the analysis is over the test result should be despatched by registered post in the name of the officer who forwarded the sample for test."
Attention is also drawn to Standing Instruction No.1.22, which reads as follows:-
"1.22 As soon as the test result in original or duplicate or both test memos are received the same will be filed in the Court, trying the case, along with chargesheet/complaint by the Investigating officer. He will keep an attested copy of the same in his case file."
Therefore, even according to the procedure prescribed by the department, the Quantitative Test Report ought to have been filed in the court along with the charge sheet, which is significantly absent. In the face of which, it would hardly be possible for the prosecution to establish that the material seized 8 is indeed narcotic drug and it is of a quantity which would either come under small quantity or under the commercial quantity, in order to enable the court either to convict or to acquit depending on the presence or absence of such narcotic drug or substance.
4. In this regard, from a plain examination of the record, it is indeed found that apart from the qualitative test which is again inconclusive as to the entire samples being of narcotic drugs or psychotropic substances and it is found to be adulterated with Paracetamol, the question arises as to what is the quantity of the drug that was allegedly seized and when there is no quantitative report on record, it would be a lacuna that would go to the root of the matter. This aspect of the matter is to be kept in view by the courts below trying cases under the NDPS Act, which shall ensure that the Standing Instructions as regards the procedure to be followed in expeditious test being conducted, maintenance of test reports and filing of such reports along with the charge sheet, are 9 complied with, in order to carry the case forward without the same being an empty exercise of ultimate acquittal of the accused.
5. Therefore, in the present case on hand, the petitioner has made out a case for enlargement of bail in the face of the lacuna that is pointed out. The petitioner shall be enlarged on bail on his executing a self bond in a sum of Rs.1,00,000/- with a surety for a likesum, subject to the following conditions:-
(ii) The petitioner shall not tamper or prevail upon the prosecution witnesses in any manner.
(iii) The petitioner shall attend the court on all dates of hearing.
(iv) The petitioner shall not leave the jurisdiction of the court below without prior permission.
(v) the petitioner shall cooperate with the Investigating Authority.10
(vi) In the event that the petitioner is found indulged in any similar crime that is alleged, the petitioner would not be entitled to bail in any circumstances.
Sd/-
JUDGE nv