Karnataka High Court
Shri Asif Puthan Purayil vs State By Intelligence Officer on 12 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2511, 2021 (2) AKR 262
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.1641 OF 2020 C/W.
CRIMINAL PETITION NO.1685 OF 2020
IN CRIMINAL PETITION NO.1641 OF 2020:
BETWEEN:
Shri Asif Puthan Purayil
S/o. Late Mohammad Ali
Aged about 26 years
R/at Puthan Purayil
Baniyambara, Khanhangad
Kasaragod - 671 316. ... Petitioner
(By Sri. T.Prakash, Advocate)
AND:
State by Intelligence Officer
Narcotics Control Bureau
Bangalore Zonal Unit
Rep. by Additional Solicitor General of India
High Court Building - 560 001. ... Respondent
(By Sri. Madhukar Deshpande, Sr. CGSC)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in the
NCB.F.No.48/1/1/2020 BZU for the offence P/U/S. 8, 28,
29 of NDPS Act.
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IN CRIMINAL PETITION NO.1685 OF 2020:
BETWEEN:
Shri Mohammad Azarudden M.E.
S/o. Suhra V.M.
Aged about 24 years
R/at Padikkal House
Thekkerppuram Ajanur
Kasargod - 671 316. ... Petitioner
(By Sri. T.Prakash, Advocate)
AND:
State by Intelligence Officer
Narcotics Control Bureau
Bangalore Zonal Unit
Rep. by Additional Solicitor General of India
High Court Building - 560 001. ... Respondent
(By Sri. Madhukar Deshpande, Sr.CGSC)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in the
NCB.F.No.48/1/1/2020 BZU for the offence P/U/S. 8, 28
and 29 of NDPS Act.
These Criminal Petitions coming on for Orders
through video conference this day, the Court made the
following:
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ORDER
Crl.P.No.1641/2020 has been preferred by petitioner/accused No.2 and Crl.P.No.1685/2020 has been preferred by petitioner/accused No.1 under Section 439 of Cr.P.C. to release them on bail in NCB.F.No.48/1/1/2020/BZU for the offences punishable under Sections 8(c), 8A read with Sections 22, 23, 25, 27A, 27B, 29, 32B(a) of NDPS Act (pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru).
2. I have heard the learned counsel Sri. T. Prakash for petitioners/accused Nos.1 and 2 virtually and learned Senior CGSC Sri. Madhukar Deshpande for the respondent.
3. The case of the prosecution in brief is that on 07.01.2020 at about 12.30 p.m., on receiving a credible information that two persons residing at a hotel Tripura Deluxe were dealing with the drugs, necessary -4- information was given to the superior officers, panchas were secured and the officers went to the said hotel and made a raid in room No.401 and they found a brown colored bag which was placed on a small table near the bed, accused No.1 opened it and took out a white colored tiffin box, envelope and on being opened it, four to five coloured polythene pouches were found filled with white crystalline substances and accused No.1 disclosed that it was methamphetamine. The contraband from all of the pouches were same in colour/texture; smell etc. It was taken out from the pouches and placed in a single polythene and mixed homogeneously and on being weighed it was found 500 gms and after taking the samples of 5 gms each, a mahazar has been drawn and a case has been registered and accused persons were arrested.
4. It is the submission of the learned counsel for petitioners/accused Nos.1 and 2 that already accused No.3 has been released by Co-ordinate Bench -5- in Crl.P.No.1570/2020 by order dated 17.06.2020 and on the ground of parity, petitioner/accused No.2 is entitled to be released on bail. It is his further submission that the quantity of the charas which is said to have been seized is one kg and subsequently, the chemical report has been obtained through the letter dated 06.05.2020 and the percentage of THC is only 0.3.8% it will be considered to be a smaller quantity. He further submits that in order to call it as a commercial quantity, segregation of the material has to be taken into consideration. It is his further submission that Hydrochloride and methamphetamine together has been calculated and under such circumstances, it is not a larger quantity. He further submitted that hydrochloride is not a prohibited drug and if it is separated, it is less than the quantity which is required. It is his further submission that already, the investigation has been completed and the charge sheet has been filed. No bad antecedents have been alleged as against petitioner/accused No.2. It is his further submission -6- that petitioner/accused is not required for the purpose of investigation or interrogation, in that light, he has relied upon the decision of the Hon'ble Apex Court in the case of Sujit Tiwari vs. State of Gujarat and Others in Crl.A.No.1897/2019. He has also further submitted that the Co-ordinate Bench of this Court in the case of Jai Joseph vs. State of Karnataka in Crl.P.No.3124/2020 dated 16.07.2020 has held that if the investigation has been completed and the petitioner is not required for the purpose of investigation, then under such circumstances, the petitioner is no longer required for the Investigating Agency for the purpose of investigation. Under such circumstances, he is entitled to be released on bail. He further submits that the quantitative and qualitative test has not been done properly by the Investigating Agency and at this stage, the quantitative and qualitative test if it cannot be done, the benefit of doubt has to be given to the petitioner/accused. He further submitted that petitioner/accused No.1 is ready to abide by any of the -7- conditions that may be imposed by this Court and ready to offer the sureties. On these grounds, he prays to allow these petitions and to release petitioner/accused on bail.
5. Per contra, learned Senior CGSC vehemently argued and submitted that petitioner/accused No.2 along with petitioner/accused No.1 has dealt with the drugs and he is also equally liable and the ground of parity cannot be extended to petitioner/accused No.2. It is his further submission that there is a definite observation made by the Investigating Agency that he was also present at the time of the alleged crime. It is his further submission that the quantity of the THC 3.8% it is considered to be a commercial quantity. He further submits that 2 gms is considered to be a small quantity in between 2 to 50 gms is considered to be a medium quantity and 50 gms and above is considered to be a commercial quantity. It is his further submission that quantity of the material which has been seized -8- contains both methamphetamine and hydrochloride and when both have been taken into consideration, then under such circumstances, it has to be considered to be as a commercial quantity. It is his further submission that quantity of neutral substance is not be excluded and to be taken into consideration along with actual contents by weight of the offending drug by determining the small or the commercial quantity of the NDPS Act. In order to substantiate the said contention, he has relied upon 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 another decision 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 the test report which has been given that in its entirety it has to be taken into consideration without bifurcation. It is his further submission that the petitioner/accused are the drug abusers and even the electronic evidence clearly goes to -9- show that they are the drug peddlers and that there is havala transactions in between the accused persons and others who are also dealing with the said drug items. It is his further submission that if the petitioner/accused is ordered to be released on bail, then again he may indulge in similar type of criminal activities and he may not be available for the trial. On these grounds, he prays to dismiss these petitions.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. The first and foremost submission made by the learned counsel for petitioner/accused No.2 is that already the Co-ordinate Bench of this Court has released accused No.3 on similar grounds and on the ground of parity, petitioner/accused No.2 is entitled to be released on bail.
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8. On close reading of the contents of the charge sheet material when the respondent made a raid to the hotel Tripura Deluxe to Room No.401 therein, accused No.1 was present and from his possession, the 500 gms of drugs has been seized and no drugs has been seized from the possession of petitioner/accused No.2. Though it is contended by the learned counsel for the respondent that petitioner/accused No.2 is also a drug peddler and he is also involved in this hawala transactions, but on careful perusal of the charge sheet material it indicates that there is no recovery of any contraband articles at the instance of petitioner/accused No.2 and already the charge sheet has been filed and petitioner/accused No.2 is not required for the purpose of further investigation or interrogation. On the ground of parity, petitioner/accused No.2 is entitled to be released on bail.
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9. It is the submission of learned counsel for petitioner/accused No.1 that the quantity of the drugs which has been seized as per the report dated 06.05.2020 is 03.8% of THC and it is not considered to be a commercial quantity. It is further submitted that the provisions of Section 37 of NDPS Act are also not applicable to the present facts of the case on hand. It is further submitted that when the seized articles containing methamphetamine and hydrochloride, hydrochloride is not considered to be a drug within the definition of NDPS Act and even that is bifurcated, it will be less than the smaller quantity, then under such circumstances, petitioner/accused No.1 is also entitled to be released on bail.
10. The only question so which arises for the consideration of this Court is that the quantity of neutral substance whether it has to be taken into consideration for the purpose of the quantity or for the purpose of weighing of the offending drug. This
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proposition of law has been interpreted by this Court in the case of The Registrar General High Court of Karnataka quoted supra at paragraph 10 which has been observed as under:
"10. In order to understand as to whether the Central Government had the legislative mandate to do so, it would be necessary to examine as to what the exact limits of power of the Central Government were under section 2(viia) and 2(xxiiia). Whether we consider 2(viia) which defines the commercial quantity or section 2(xxiiia) which defines small quantity the language is virtually identical. The 'small quantity' and the 'commercial quantity' are in relation to narcotic drugs and psychotropic substances. The Central Government has been given the power to specify, by a notification in the official gazette, the quantity representing the small quantity or commercial quantity in relation to each narcotic drug and psychotropic substance. In the present case we are concerned with heroin and, therefore, we shall restrict our discussion to narcotic drugs. Narcotic drugs are defined in section 2(xiv) to include "all manufactured drugs". The latter expression has also been defined in section 2(xi) to inter alia, mean "opium deprivative". And, 'opium derivative' itself has been defined in section 2(xvi) to, inter alia, mean diacetylmorphine and all 'preparations' containing more than 0.2% of morphine or containing 'any' diacetylmorphine. In other words a preparation containing 'any' diacetylmorphine would be regarded as an opium derivative."
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11. And even the similar issue also raised up before the Hon'ble Apex Court in the case of Hira Singh and Another quoted supra at paragraphs Nos.8.1, 8.2 and 10 that which 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 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."
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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 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 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
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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 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
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provisions of the 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 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
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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 above said citations in case of seizure of mixture of drugs with one or more neutral substance, the quantity of neutral substance is not to be excluded and to be taken 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 records and admittedly the THC is 03.8% as rightly contended by the learned counsel for the respondent that 2 gms is considered to be small quantity, 2 to 50 gms is considered to be medium quantity and above 50 gms is considered to be commercial quantity. Keeping in mind above decision when both the mixture is taken into consideration, it amounts to a commercial quantity and in that light, the contention of the learned counsel for petitioner/accused No.1 is not acceptable. Though it is contended by learned counsel for the
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petitioner/accused No.1 that already, the charge sheet has been filed and the petitioner/accused No.1 is no longer required for the purpose of further investigation or interrogation and in that light, he has also relied upon the decision in the case of Sujit Tiwari quoted supra and the Co-ordinate Bench of this Court in the case of Jai Joseph quoted supra but I am of the considered opinion that when petitioner/accused No.1 has been apprehended and the commercial quantity of the charas and other material has been seized and he has been considered to be a drug peddler and if he is released on bail then under such circumstances again he may indulge in similar type of criminal activities, may abscond and may not be available for the trial. In that light, I am of the considered opinion that petitioner/accused No.1 is not entitled to be released on bail. With the above observations, I pass the following order:
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Crl.P.No.1641/2020 in respect of petitioner/accused No.2 is allowed. Petitioner/accused No.2 is ordered to be released on bail in NCB.F.No.48/1/1/2020/BZU for the offences punishable under Sections 8(c), 8A read with Sections 22, 23, 25, 27A, 27B, 29, 32B(a) of NDPS Act (pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru), subject to the following conditions:
i) Petitioner/accused No.2 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) He shall not tamper with the
prosecution evidence directly or
indirectly.
iii) He shall not leave the jurisdiction of the
Court without prior permission.
iv) He shall mark his attendance before the
jurisdictional police on 1st of every
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month in between 10.00 a.m. and 5.00 p.m. till the trial is completed.
v) He shall not indulge in similar type of criminal activities. If he again indulged in similar type of criminal activities, the trial Court is at liberty to cancel the bail.
Crl.P.No.1685/2020 in respect of petitioner/accused No.1 is dismissed.
Sd/-
JUDGE SJK