Karnataka High Court
Rijesh Ravindran vs Union Of India on 24 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2264
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.5009/2020
BETWEEN :
Rijesh Ravindran
S/o Kollaikal Ravindran
Aged about 37 years
R/at Nikoo Homes, Tower No.5,
Chockkanahalli Village, Jakkur,
Bengaluru North Taluk
N/o: Pavithram, Pattiarambu
Thiruvilwamala Thrissur-680 588.
... Petitioner
(By Sri Hashmath Pasha, Senior Counsel for
Sri Nasir Ali, Advocate)
AND :
Union of India
by Narcotic Control Bureau
Bengaluru Zonal Unit,
Bengaluru,
... Respondent
(By Sri Madhukar Despande, Central Government
Standing Counsel)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in
NCB.F.NO.48/1/14/2020/BZU registered by NCB,
Bengaluru, for the offences punishable under Sections
22, 27A, 28 and 29 of NDPS Act.
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This Criminal Petition having been heard and
reserved on 06.11.2020 coming on for pronouncement of
orders this day, the Court made the following:-
ORDER
This petition is filed by accused No.3 under Section 439 of Cr.P.C. praying to release him on bail in Crime No.NCB.48/1/14/2020/BZU on the file of NCB, Bengaluru for the offences punishable under Section 8 r/w. Sections 22, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short).
2. I have heard Sri Hashmath Pasha, learned Senior Counsel for Sri Nasir Ali, learned counsel for the petitioner-accused No.3 and Sri Madhukar Despande, learned CGSC for the respondent-NCB.
3. The gist of the case of the prosecution is that on 21.8.2020 at about 5.50 p.m., the Intelligence Officer of NCB received a credible information that one Mohammed Anoop is staying in Room No.205-206 of Royal Suites -3- Hotel Apartment at Kalyannagar and has purchased 100 grams of Methylenedioxymethamphetamine ('MDMA' for short) pills and immediately the said information has been forwarded to higher authority and along with panch witnesses they went to the said place and a search has been conducted in Room No.205-206 in the said Hotel, where they found 60 grams of MDMA tablets and the same has been seized by drawing a mahazar and the said Mohammed Anoop has been apprehended. During the course of enquiry, he disclosed that he has given 40 grams of tablets to the petitioner-accused No.3. On the same day, i.e., on 21.8.2020 at about 11.10 p.m., another information report has been prepared on the basis of the statement given by Mohammed Anoop and after taking an authorization, a search has been conducted at Flat No.52401 at Chookanahalli, Jakkur, Yelahanka, Bengaluru and the petitioner-accused No.3 was found with 40 grams of MDMA tablets and 180 blots of Lysergic acid Diethylamide ('LSD' for short) and they -4- were seized under panchanama and the petitioner- accused No.3 has been taken to custody.
4. It is the submission of the leaned Senior Counsel for the petitioner-accused No.3 that the information which has been received on 21.8.2020 at about 5.50 p.m. has not been recorded in the Register of Information and the copy of the same has not been immediately forwarded to the superior officer as required under Sections 42(1) and 42(2) of NDPS Act though the said provision is mandatory. In support of his contention, he has relied upon a decision of the Hon'ble Apex Court in the case of Sarija Banu @ Janarthani @ Janani and Another Vs. State through Inspector of Police, reported in 2004(12) SCC 266. It is his further submission that Annexure-D, information report has been got prepared only to implicate the petitioner-accused No.3 after the search of room of accused No.2 Mohammed Anoop on 21.8.2020 at about 10.10 p.m. It is his further submission that when an information has -5- been disclosed about the cognizable offence, no case has been registered till the production of accused Nos.2 and 3 on 24.8.2020 with remand application before the jurisdictional Court. Hence, the detention of the petitioner-accused No.3 for three days is considered to be an illegal detention, only with an intention to falsely implicate the petitioner-accused No.3. It is his further submission that the petitioner-accused No.3 was not present when the seizure has taken place and the name of the petitioner-accused No.3 was not found in the FIR. It is his further submission that without registering the case, authorizations have been got used which are in printed formats that itself shows that there was no application of mind by the Investigating Agency and no search warrant has been obtained and no authorization was also there earlier in this behalf. It is his further submission that for both panchanamas same panchas have been used and no sample has been drawn for the purpose of sending the same for chemical examination and no kit test certificate or procedure has been followed -6- during the course of investigation. It is his further submission that when a person has been searched, nothing was found, but without following the procedure under the provisions of NDPS Act the entire search and seizure has been done in violation of law. It is his further submission that Flat No. 52401 is not in exclusive possession of the petitioner-accused No.3 and as such it will not incriminate the petitioner-accused No.3 in the said case. It is his further submission that no test memo is prepared at the spot. As per Section 42 of the NDPS Act, no search can be made after the sunset and before the sunrise. In support of his contention, he has relied upon a decision of the Hon'ble Apex Court in the case of Roy V.D. Vs. State of Kerala, reported in (2000)8 SCC 590. The Investigating Officer is not a rank of Gazetted Officer so as to exercise the power under Section 42 of NDPS Act. It is his further submission that no grounds have also been stated for the search. As per Section 41 of the NDPS Act an authorized Gazetted Officer can authorize the subordinate to execute the -7- warrant. But in the case on hand the Investigating Officer is not a Gazetted Officer as contemplated under Section 41 of NDPS Act and Investigating Officer has not made any subjective satisfaction and without authority he has conducted the search. It is his further submission that as per Standing Instruction No.1/88 and under Regulation No.1.18, the qualitative and quantitative tests have to be produced within 30 days otherwise the Court can refuse to remand the accused to the custody. In support of his contention, he has relied upon a decision in the case of Noor Aga Vs. State of Punjab & another reported in 2008(16) SCC 417. It is his further submission that Hon'ble Courts in catena of decisions have held that non-production of report of qualitative and quantitative tests within 15 days and 30 days is considered to be a ground for bail and in that light the petitioner-accused No.3 is entitled to be released on bail. Though the seizure of the articles is on 22.8.2020 already more than 60 days have been lapsed, no test report is produced. In that light, the detention of -8- the petitioner-accused No.3 appears to be illegal detention. It is his further submission that now the NCB Officers have been given the power of incharge of Police Station and in that light whatever the voluntary statement given by the accused during the custodial period is inadmissible and it is also hit by Sections 25 and 26 of the Indian Evidence Act. In that light, he relied upon the decision in the case of Tofan Singh Vs. State of Tamil Nadu in Criminal Appeal No.152/2013 & connected matters disposed of 29.10.2020.
5. It is his further submission that the seized article has been sent for chemical examination and the report has also been received. The percentage of MDMA has given positive result but it is containing only 15.1%, 15.2%, 16.0%, 15.8%, 16.2% and 16.9% in respect of pink tablets, blue tablets, purple tablets and orange tablets respectively. It is his further submission that there is ample material to show that the petitioner- accused No.3 is not guilty of the offence and he has not -9- been involved in any case and there is no likelihood of he committing any offence in future and in that light, the provisions of Section 37 of the NDPS Act are not applicable and that is the main criteria under the said Section to release the petitioner-accused No.3, on bail. It is his further submission that the petitioner-accused No.3 is not a drug peddler and he is only addicted to consume and for his personal consumption he has kept some drugs. If at all he is liable, he is liable only under Section 27 of the NDPS Act which is not punishable with any gravity. It is his further submission that the petitioner-accused No.3 is ready to abide by the conditions to be imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.3 on bail.
6. Per contra, the learned CGSC for the respondent has vehemently argued and submitted that in the first instance, on information they went to Room No.205-206
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of Royal Suites Hotel Apartment where accused No.2- Mohammed Anoop was staying and they have seized 60 grams of MDMA tablets and it is accused No.2 who disclosed that he has given 40 grams of MDMA to the petitioner-accused No.3. In continuation of the said investigation, further authorization has been obtained from the Superintendent of NCB and a search has been conducted as per Section 41(2) of NDPS Act. There is no illegality or irregularity in so far as search is concerned. It is his further submission that though the provision of law indicates that after sunset and before sunrise, no search can be conducted, the proviso indicates that if the search has been conducted with authorization and the continuity of the investigation, then under such circumstances the contention of the learned Senior Counsel will not be having any force. It is his further submission that the investigation is still under progress and 40 grams of MDMA tablets and 180 blots of LSD has been seized from the possession of the petitioner- accused No.3 and the said quantity is a commercial
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quantity of Narcotic Drugs. It is his further submission that a mahazar has been drawn in the presence of the witnesses and the quantity of contraband is more than the commercial quantity. It is his further submission that when once the article seized is a commercial quantity then the provisions of Section 37 of the NDPS Act attract and the accused has to prove that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. When the said article has been ascertained as MDMA of commercial quantity and it was in possession of petitioner-accused No.3 prima facie it substantiates that he was in possession of the said contraband tablets and in that light he has to explain about his non-involvement in the said case. It is his further submission that the Court should take into account the factual presumption in law that the official acts by the officers have regularly been performed, such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court. In this behalf, he
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has relied upon a decision of the Hon'ble Apex Court in the case of Superintendent, Narcotics Controls Bureau, Chennai Vs. R.Paulsamy, reported in (2000)9 SCC 549.
7. It is his further submission that the quantity of neutral substance has to be considered for the purpose of quantity of the contraband and for the purpose of weighing offending drug the entire substance has to be taken into consideration. In this behalf, he has relied upon the decision of this Court in the case of The Registrar General, High Court of Karnataka Vs. A.Shahid and others, reported in ILR 2015 KAR 5411 and of the Hon'ble Apex Court in the case of Hira Singh and another Vs. Union of India and Another, reported in SC 2020 SCC Online SC 382. It is his further submission that illegal detention of the petitioner- accused No.3 has not been challenged including the remand made by the jurisdictional Court. Under such circumstances, he cannot contend that till 24.8.2020 his
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detention is illegal. It is his further submission that the primary duty of the police is to prevent from happening of the crime. Immediately after receiving the information they have to proceed to the spot and avert the crime. It is his further submission that non obtaining of FSL report is not a ground when there is material to show the involvement of the petitioner-accused No.3 in the alleged crime. In that light, he has relied upon a decision of co- ordinate Bench of this Court in the case of Ragini Dwivedi @ Gini @ Rags and others Vs. The State of Karnataka in Criminal Petition No.5389/2020 & connected matters, disposed of on 3.11.2020. It is his further submission that the seized article is exceeding commercial quantity. When the investigation is still pending, then under such circumstances, detailed discussion while dealing with the bail application and formalities cannot be considered. In that light, he has relied upon the decision of this Court in the case of Shri Aayush Ajit Vs. Inspector of Customs in Criminal Petition No.4017/2020 disposed of on 8.10.2020. It is
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his further submission that Section 41 of the NDPS Act, empowers the person to issue authorization and on the basis of the said authorization the search has been conducted and there is no illegality. It is his further submission that the petitioner-accused No.3 has conspired with other accused persons and admittedly it is his say that the seized article was kept for his personal consumption and in that light, it is his submission that the petitioner-accused No.3 has not made out any grounds so as release him on bail. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made on both sides and perused the records.
9. The first contention which has been taken up by the learned Senior Counsel is that the MDMA which has been seized from the possession of the petitioner- accused No.3 after excluding neutral substance is not a commercial quantity. Seized article, i.e., MDMA has been
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sent for chemical examination and as per the report dated 13.10.2020 the sample under reference answers positive for MDMA and LSD. In so far as MDMA actual content is concerned, the percentage found is 15.1%, 15.2%, 16.0%, 15.8%, 16.2% and 16.9% in respect of Item Nos.1, 3, 6, 8 10 and 12 respectively and in so far as LSD is concerned, the percentage found is 1.3%. But in case of MDMA, the gross weight of the sample received is 5.1, 5.2, 5.2, 5.2, 5.3 and 5.0 grams respectively and in so far as LSD is concerned, sample received is 2.9 grams, as such benefit has to be given to the petitioner- accused No.3. Under such circumstances, it is his further submission that it is not coming within purview of commercial quantity. He further submitted that preservance of original wrapper comes within the purview of the directions issued in terms of Section 3.1 of Standing Instruction No.1/1989 and contravention of such guidelines cannot be said to be an error which in a case of this nature can conveniently be overlooked by the Courts. It is his further submission that the guidelines
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issued should not only be substantially complied with, but also in a case involving penal proceedings, vis-à-vis a departmental proceeding, rigours of such guidelines may be insisted upon. In that light, he has relied upon the decision in the case of Noor Aga Vs. State of Punjab & another (cited supra), wherein at paragraphs-87 and 89 it has been observed as under:-
"87. Preservance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of Standing Order 1 of 1989, Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the court. We are not oblivious of a decision of this Court in South Central Railway v. G.Ratnam relating to disciplinary proceedings, wherein such guidelines were held not necessary to be complied with, but therein also this Court stated: (SCC p 222, para 23) "23. In the cases on hand, no proceedings for commission of penal offences were
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proposed to be lodged against the respondents by the investigating officers."
"89. Guidelines issued should not only be substantially complied with, but also in a case involving penal proceedings, vis-à-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When direction are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith."
10. It is the specific contention of the learned CGSC that the Court while considering the quantity of the drug seized, neutral substance must also have to be taken into consideration and in that light it is his submission that the articles seized are the offending drugs and are of commercial quantity. In that light, he has also relied upon the decision in the case of Registrar General,
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High Court of Karnataka Vs. A.Shahid and others (cited supra), wherein at paragraph-10 it has been observed as under:-
"10. At the cost of the repetition, we conclude that the law prior to issuance of notification dated 18.11.2009 had been settled by the Apex Court in the case of E.MICHEAL RAJ cited supra holding that when any narcotic drug or psyhotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment, it is the only content of narcotic drug or psychotropic substance which has to be taken into consideration. This proposition is altered by virtue of the notification dated 18.11.2009 inasmuch as the entire mixture and not just its pure drug content has to be considered by virtue of the said notification.
It is also beneficial to note that the Apex Court in the case of HAARJIT SINGH vs. STATE OF PUNJAB, has ruled that the notification dated 18.11.2009 providing that whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposing
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punishment has got prospective effect, which means the notification dated 18.11.2009 operates from the date of said notification "
11. Even similar issue has also come up before the Hon'ble Apex Court in case of Hira Singh and another Vs. Union of India and Another (cited supra) wherein at paragraphs-8.1, 8.2 and 10, it has been observed as under:-
"8.1. In the case of Directorate of Enforcement v. Deepak Mahajan reported in (1994) 3 SCC 440, it is observed by this Court that every law is designed to further ends of justice but not to frustrate on the mere technicalities. It is further observed that though the intention of the Court is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. It is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute. In the said decision this Court has also quoted following
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passage in Maxwell on Interpretation of Statutes, 10th Edition page 229:
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumable not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. ... Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."
Thereafter, it is further observed that to winch up the legislative intent, it is permissible for courts to take into account the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane. It is further observed that in
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given circumstances, it is permissible for courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile."
"8.2. Therefore, considering the statement of objects and reasons and the preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from sub-clause (viia) and (xxiiia) of Section 2 of NDPS Act emphasis is on Narcotic and Drug or Psychotropic Substance (Sections 21, 22, 23, 24, 27 and
43). Even in the table attached to the
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Notification dated 19.10.2001, column no.2 is with respect to name of Narcotic Drug and Psychotropic Substance and column nos.5 and 6 are with respect to "small quantity and commercial quantity". Note 2 of the Notification dated 19.10.2001 specifically provides that quantity shown against the respective drugs listed in the table also apply to the preparations of the drug and the preparations of substances of note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the table apply to the isomers ..., whenever existence of such substance is possible. Therefore, for the determination of "small quantity or the commercial quantity"
with respect to Narcotic Drugs or Psychotropic Substance mentioned in column no.2 the quantity mentioned in the clauses 5 and 6 are required to be taken into consideration. However, in the case of mixture of the narcotic drugs/psychotropic drugs mentioned in column no.2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in table, lesser of the small quantity between the
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quantities given against the respective Narcotic Drugs or Psychotropic Substances forming part of mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. As per example, mixture of 100 gm is seized and the mixture is consisting of two different Narcotic Drugs and Psychotropic Substance with neutral material, one drug is heroin and another is methadone, lesser of commercial quantity between the quantities given against the aforesaid two respective Narcotic Drugs and Psychotropic Substance is required to be considered. For the purpose of determination of the "small quantity or commercial quantity", in case of entry 239 the entire weight of the mixture/drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in the case of E. Micheal Raj (supra) is accepted, in that case, it would be adding something to the relevant provisions of the
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statute which is not there and/or it was never intended by the legislature."
"10. In view of the above and for the reasons stated above, Reference is answered as under:
(I) The decision of this Court in the case of E. Micheal Raj (supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s) the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with
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actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;
(III) Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.OI 1055(E) dated 19.10.2001;
(IV) Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification stand dismissed."
12. On close reading of the aforesaid two citations, it has been made clear that in case of seizure of mixture of drugs with one or neutral substance, the quantity of neutral substance is not to be excluded and to be taken
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into consideration along with the actual content by weight of the offending drug while determining the small or commercial quantity of the drug. In that light, on perusal of the report of RFSL, it indicates that MDMA has given a gross weight of 5.1, 5.2, 5.2, 5.2, 5.3 and 5.0 grams in respect of pink tablets, blue tablets, purple tablets and orange tablets. In so far as LSD is concerned, the gross weight of the sample received is 2.9 grams. In that light, the quantity of the drug seized is more than two grams and 2 to 50 grams is medium quantity and above that, is considered to be commercial quantity. In that light, the quantity of the drug seized from the possession of the petitioner-accused No.3 amounts to commercial quantity and therefore, the contention of the learned Senior Counsel is not acceptable.
13. Be that as it may, I am not having any difference of opinion with regard to the ratio laid down in the said decision. But subsequently, the Hon'ble Apex
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Court in the case of Hira Singh and another Vs. Union of India and Another (cited supra), has observed that the main object and intention of the statute are clear and it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law, except in a case of necessity or the absolute interactability of the language used, it cannot be diluted. It is further observed that the act was never intended to exclude the quantity of neutral substance and to consider the actual contents by weight of the offending drug which is relevant for the purpose of determining whether it constitutes a small or commercial quantity. In that light, I am of the considered opinion that the decision quoted by the learned Senior Counsel for the petitioner-accused No.3 in the case of Noor Aga Vs. State of Punjab & another (cited supra), is not applicable and it is well settled proposition of law that the recent decision of the Hon'ble Apex Court will prevail over the earlier decisions.
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14. It is the submission of the learned Senior Counsel that as per the Standing Instruction No.1/88 and Guideline No.1.18 they speak with regard to the quantitative and qualitative tests to be conducted at the time of seizure and the qualitative test has to be conducted within 15 days and quantitative test has to be conducted within 30 days so as to ascertain whether the seized article is small or intermediate or commercial quantity. But on perusal of the mahazar dated 21.8.2020, accused No.2-Mohammed Anoop produced MDMA tablets weighing 60 grams and it was in a transparent polythene pouch with heat sealed and as per the seizure mahazar dated 21/22.8.2020, from the possession of accused No.3, 40 grams of MDMA tablets and 180 blots of LSD tablets have been recovered and the same have been seized. In the mahazars drawn they have specifically mentioned that at the first instance 60 grams of MDMA has been seized from the possession of accused No.2 and 40 grams of MDMA and 180 blots of LSD have been seized from the possession of accused
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No.3 and it is going to satisfy the first standing order with regard to quantitative test is concerned. Even as could be seen from the statement of the accused persons, they have clearly admitted that the said prohibited drugs are MDMA and LSD. It is well settled proposition of law that the Court has to take into account the factual presumption in law that official acts have been regularly performed and such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court during the bail stage and compliance of formalities mentioned in Sections 52 and 57 of the NDPS Act. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Superintendent, Narcotics Controls Bureau, Chennai Vs. R.Paulsamy (cited supra), wherein at paragraph-6 it has been observed as under:-
"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not
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guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections."
15. It is the submission of the learned Senior Counsel that the statement is recorded during the course of investigation by an officer of the NCB who is a police officer and as such the statement recorded is hit under Sections 25 and 26 of Indian Evidence Act. In that light, he has relied upon the decision of the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu in
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Criminal Appeal No.152/2013 & connected matters disposed of 29.10.2020, wherein at paragraph-152 it has been observed as under:-
"152. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India."
16. Keeping in view of the ratio laid in the aforesaid decision, on perusal of the records, even excluding the statement of the accused, on perusal of the report of the chemical examiners, dated 13.10.2020, it has given positive result for both MDMA and LSD and even the quantity of prohibited drug which has been seized is more than the commercial quantity. In that light, the contention of the Senior Counsel is not acceptable.
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17. It is the contention of the learned Senior Counsel for the petitioner-accused No.3 that the detention of the accused for the earlier period is an illegal detention and without warrant or authorization the Investigating Officer cannot retain the petitioner-accused No.3 and he is not empowered to make a search in between sunset and sunrise. In that light, he has relied upon the decision of the Hon'ble Apex Court in the case of Roy V.D. Vs. State of Kerala (cited supra), wherein at paragraphs-15 and 16 it has been observed as under:-
"15. It is thus seen that for exercising powers enumerated under sub-section (1) of Section 42 at any time whether by day or by night a warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class who has been specially empowered by the State Government in that behalf or an authorization under sub-section (2) of Section 41 by an empowered officer is necessary. Without such a warrant or an authorization, an empowered officer can exercise those
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powers only between sunrise and sunset. However, the proviso permits such an empowered or authorized officer to exercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence of facility for the escape of an offender and he records the grounds of his belief.
16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It follows that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorized officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act
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and use of such a material by the prosecution vitiates the trial."
18. Section 42 of the NDPS Act empowers any officer for entry, search, seizure and arrest without warrant or authorization. For the purpose of brevity, I quote Sections 41 and 42 of the NDPS Act, which read thus:-
"41. Power to issue warrant and authorization.- (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any
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document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may
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furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub- section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.]
42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other
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department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
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(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be
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exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
19. As per Section 41(1) of the NDPS Act, if the officer making the search is below the rank of Gazetted in the Department, then under such circumstances, in order to exercise the power for search, he has to obtain warrant. But as could be seen from Section 41(2) of the
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NDPS Act, if he is an officer of gazetted rank, then under such circumstances, he himself can make a search of a building conveyance or place, either in a day or at night. But it also authorized him to give an authorization as per Section 41(3) of the NDPS Act and if such authorization has been issued under Section 41(2) of the NDPS Act, he shall have all the powers of the officers acting under Section 42(3) of the NDPS Act. Keeping in view the aforesaid provision of law, looking from the records, the Superintendent of NCB has given an authorization to search under Section 41(2) of the NDPS Act and on the basis of the same, the Investigating Officer has made a search. In that light, the search of the Flat of the petitioner-accused No.3 conducted during night hours does not considered to be in violation of the provisions of Section 41 of the NDPS Act.
20. Be that as it may, even as per the case of the prosecution, on 21.8.2020, on receipt of the credible information at about 5.50 p.m., they went to Royal
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Suites Hotel Apartment, where accused No.2 was there and there they have seized 60 grams of MDMA tablets by drawing a mahazar. Accused No.2 disclosed that he has given 40 grams of MDMA tablets to accused No.3 and in that light, after taking an authorization on 21.8.2020 a search has been conducted. In that light also there is no illegality and it is continuation of the investigation on the basis of the voluntary statement said to have been given by accused No.2-Mohammed Anoop. In that light also, the contention of the learned Senior Counsel is not having any force and the same is liable to be rejected.
21. On perusal of the records, the contraband article which has been seized in the form of MDMA and LSD as discussed above, is a commercial quantity. When once the quantity of contraband article is considered to be a commercial quantity, then under such circumstances, the provisions of Section 37 of the NDPS Act will be made applicable. For the purpose of brevity, I
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quote Section 37 of the NDPS Act, which reads as under:-
"37. Offences to be cognizable and non-bailable - (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence
punishable for [offences u/s.19 or
Section 24 or Section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless -
(i) the Public Prosecutor has been given
an opportunity to oppose the
application for such release, and
(ii) Where the Public Prosecutor opposes
the application, the court is 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.
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(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
22. On close reading of the aforesaid Section, it says that twin conditions have to be adhered to by the Court while dealing with the parameters of Section 439 of Cr.P.C. If the object of the NDPS Act is looked into, it is enacted to make stringent provisions for control, regulation and authorization relating to NDPS Act. The said enactment is a special enactment and in Section 37 of the NDPS Act, it states that a non-obstante clause has been inserted and it is negative scope limiting the scope and applicability of the provisions of Code of Criminal Procedure for considering the bail application. In that light, the Court has to keep in mind the object of enactment and proceed with the aspect. Even as could be seen from Section, 37(b)(i) and (ii) of the NDPS Act
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are the specific limitations prescribed on the Court and it says that while dealing with the bail application, the Public Prosecutor has to be given an opportunity to oppose the application and the Court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail.
23. Keeping in view the said proposition of law, on perusal of the records and the submission made by the learned Senior Counsel, it is not in dispute that 40 grams of MDMA and 180 blots of LSD has been seized from the possession of the petitioner-accused No.3 and the seized article is a commercial quantity.
24. Even though it is the submission of the learned Senior Counsel that the said contraband article was kept for the personal use of the petitioner-accused No.3, when the quantity of the contraband is of commercial quantity, then under such circumstances, the petitioner-accused No.3 has to come with a proper explanation and there
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are no grounds made out to show that the petitioner- accused No.3 is not guilty of such offence under the Act.
Looking from any angle, the petitioner-accused No.3 has not made out any case so as release him on bail. Hence, the petition being devoid of merits, is liable to be dismissed and accordingly the same stands dismissed.
However, liberty is reserved to the petitioner- accused No.3 to file a fresh petition after filing of the charge sheet.
Sd/-
JUDGE *ck/-