Karnataka High Court
Kelsi Katte Mahammed Shakir vs The Superintendent Of Customs on 26 September, 2018
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL PETITION No.5402 OF 2018
Between:
Kelsi Katte Mahammed Shakir,
S/o. Kelsi Katte Ummer Mahammad,
Aged about 29 years,
R/at No.7/97, Navoor House,
Ganghinagar, Sullia,
Dakshina Kannada District - 574 239.
. ...Petitioner
(By Sri. Lethif B., Advocate)
And:
The Superintendent of Customs,
Air Intelligence Unit,
Bengaluru International Airport,
Bengaluru - 560 300
Rep. by SPP, High Court Building,
Bengaluru -560 001.
...Respondent
(By Sri. Vikram A Huilgol, CGSC)
This Criminal Petition is filed under Section 439 of
Code of Criminal Procedure praying to enlarge the
petitioner on bail in O.R.No.16/2018-19 CUS AIU of
Superintendent of Customs, Air Intelligence Unit,
Bengaluru International Airport, Bengaluru for the offence
2
punishable under Sections 9 and 23 of NDPS Act and
Sections 14, 135 of Customs Act.
This Criminal Petition coming on for Orders, this
day, the Court made the following:
ORDER
The present petition has been filed by the petitioner-accused under Section 439 of Cr.P.C. praying to release him on bail for the offences punishable under Sections 9 and 23 of N.D.P.S. Act and under Sections 114 and 135 of the Customs Act, 1962 in O.R.No.16/2018-19 CUS AIU of Superintendent of Customs, Air Intelligence Unit, Bengaluru International Airport, Bengaluru.
2. I have heard learned counsel Sri. Lethif B. for the petitioner and learned Central Government Senior Standing Counsel Sri. Vikram A. Huilgol for the respondent.
3. The brief facts of the case are that on 29.06.2018 at 02:30 hours, the Superintendent of 3 Customs, Air Intelligence Unit, Kempegowda International Airport, Bengaluru was informed that CISF Unit ASG, Bengaluru, Kempegowda International Airport has suspected a passenger by name Sri. Kelsikatte Mahammad Shakir during Pre Embarkation security check and found, three bags of suspected narcotic items (mashed leaves in cake form) weighing three kgs in the hand baggage of the said passenger, who was supposed to travel from Bengaluru to Doha by flight No.QR 537 and the said passenger was handed over to the Customs for further necessary action and thereafter, necessary Mahazars were drawn and the case was registered in this behalf.
4. It is the contention of the learned counsel for the petitioner that the petitioner-accused was not aware of the contents of the bag as the said bag has been handed over to him by one Sri. Shafeer of Gandhinagar who arranged the tickets and VISA for him to go to Doha for the purpose of ascertaining the job and requested him 4 to do a favour to carry his bag containing his personal items and as per his instructions, he has to hand over the said bag to the person in Doha who will be waiting outside the Airport. He further submitted that even recording of the statement of accused has also been done by the Investigating Agency under Section 108 of the Customs Act (herein after called 'Act') and the same thing has been stated by the accused-petitioner. He further submits that as per Section 42 of the Act, immediately after coming to know that drug is intended to be transported to the Custom Authorities, same has to be informed to the Higher Officers and then the said Officer has to take further steps. But in the instant case, the Superintendent of Customs himself has made the recovery and the said recovery is not in accordance with law. He further submitted that as per the instruction issued by the Narcotic Control Bureau, the analysis of the drug has to be completed within 15 days from the date of receipt of the sample, he further submitted that the result of the 5 quantitative test should be sent to the officer from whom the samples were received, within next 15 days. Non-compliance of the standing instructions is considered to be a serious lacuna and it cannot be held that the seized articles are contraband under N.D.P.S. Act. He further submits that till today the said report has not yet been produced and no charge sheet has been filed. He further submits that non-production of the said test report violates the fundamental right of the accused-petitioner. A strict following of the said instruction is mandatory in law and if the same has not been followed, then under such circumstances, the accused is entitled to be released on bail.
5. He further submits that though the seized article is about three kgs, it is more than the commercial quantity. But until and unless the test report comes to the effect that the said seized article is actual narcotic drug and the same is supported by chemical examination report and quantitative analysis, it cannot be held that the 6 said article is contraband article. In order to substantiate his contentions, he relied upon the decision in the case of INSPECTOR OF CUSTOMS vs. MS. DAPHIRA WALLANG reported in ILR 2010 KAR 190 and also the decision of the Hon'ble Apex Court in the case of UNION OF INDIA vs. BAL MUKUND AND OTHERS reported in (2009) 12 SCC 161 and one more decision in the case of CHANDRU KUNTHUR RAGHUVEGOWDA vs. STATE BY INSPECTOR OF CUSTOMS in Criminal Petition No.303/2017 dated 28.04.2017 and Criminal Petition No.7943/2017 in the case of RAMEEZ RAAZ vs. STATE OF KARNATAKA BY MANGALURU NORTH POLICE STATION, DAKSHINA KANNADA DISTRICT dated 30.10.2017 and prayed to allow the petition and to release the accused-petitioner on bail. It is his submission that the accused-petitioner is ready to abide by any of the terms and conditions that may be imposed by this Court and also ready to offer 7 sureties, if he is released on bail. On these grounds, he prays to allow the petition.
6. Per contra, the learned Central Government Senior Standing Counsel submitted that the provisions of Section 37 of the NDPS Act, 1985 is in addition to the provisions of Section 439 of Cr.P.C. The limitation of granting bail comes only when the question of granting bail arises on the merits, apart from granting of opportunity to the public prosecutor. He further submitted that if there is prima facie reasonable grounds to believe that the accused-petitioner is involved in the alleged offence which is punishable under N.D.P.S. Act, then under such circumstances, the Court can reject the bail application.
7. He further submits that the quantity of the Hashish which is said to have been seized from the possession of the accused-petitioner is more than the commercial quantity. At this stage, it can be said on the 8 basis of sample test kit instruction given positive result that if is the Hashish seized from the accused-petitioner. He further submits that as per law, if the article is more than one kg, it is commercial quantity. He further submitted that the charge sheet has not yet been filed and 180 days time is there to file the charge sheet. If the accused is released on bail, he may abscond, may not be available for trial and may indulge in similar type of criminal activities. He further submitted that there is involvement of the accused-petitioner in transportation of the narcotic drugs. Under such circumstances, he is not entitled to be released on bail. On these grounds, he prays to dismiss the petition.
8. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsels from the Bar and I have also gone through the citations which have been quoted by the learned counsel appearing for the parties. 9
9. As could be seen from the contents of the complaint, when the accused-petitioner was handed over to the Superintendent of Customs and the hand bag of the accused was searched and checked, then, they noticed the narcotic items i.e., mashed leaves in cake form weighing approximately three kgs and the Custom Authorities immediately seized the said article as Hashish and Mahazar was drawn in this behalf.
10. It is the contention of the learned counsel for the petitioner that the said baggage which is seized when the petitioner-accused was travelling from Bengaluru to Doha is the bag belonging to one Shafeer who instructed him to do a favour by carrying his bag containing his personal items and hand it over to the person who will be waiting at Doha. In that light, it is submitted by the learned counsel for the petitioner that he was not having any Mens-rea and knowledge that the contents of the said bag was Hashish and it is prohibited narcotic drug. He also referred to the 10 statement recorded under Section 108 of the Act when the accused-petitioner was examined. That itself clearly indicates that he was not having any knowledge and the same is also admissible under the said Act. Though the statement which has been recorded under Section 108 of the Act reveals that the accused-petitioner has stated so it is a matter which has to be considered and appreciated only at the time of trial. At this pre-mature stage, it cannot be held that the accused-petitioner was not having any mens-rea at the time, when he was carrying the bag. It is well settled principle that no mini trial be held while considering bail application.
11. I am conscious of the fact that in a criminal case the presence/absence of mens-rea is the basic principles of criminal law but it is too early to come to the conclusion that mensrea is not there and I am also conscious of the fact that I am adjudicating with a petition filed under Section 439 of Cr.P.C., and not under 11 Section 482 of Cr.P.C. In that light, the submissions made by the learned counsel for the petitioner is not acceptable.
12. It is the second contention of the learned counsel for the petitioner that as per the standing instructions of the Narcotic Control Bureau, the analysis of the drug has to be completed within 15 days from the date of receipt of the sample. For the purpose of brevity, I extract the said instruction which reads as under:-
1.18 Expeditious Test Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings of N.D.P.S. Act, 1985. In many cases the court may refuse to extend Police/Judicial remand beyond 15 days for absence of a chemical report. Accordingly, it is essential that the analysis is completed and the report dispatched within 15 days from the date of receipt of the sample.
However, where quantitative analysis report dispatched within 15 days from the date of 12 receipt of the sample. However, where quantitative analysis be longer time. The results of qualitative test should be dispatched to the officer from whom the samples to received within the aforesaid time limit on the original copy of the Test Memo so that court proceedings can be immediately. In the next 15 days the results of qualitative test (purity of the drug) should also be indicated the duplicate test memo and sent to the officer from who the samples were received.
And this Court has also interpreted the said instructions in the case of CHANDRU KUNTHUR RAGHUVEGOWDA's (supra) at Para No.19, which reads as under:-
"The report dated January 13, 2017 issued by the Custom House Laboratory, Chennai, shows that the six samples answered the test for presence of Psedoephedrine Hydrochloride. The foot note contained in the report is categorical to the effect that 'quantitative analysis' of the sample was not carried out. Thus, there has been infraction of Standing Instruction 13 No.1/88. Compliance with the ' Standing Instruction' is a requirement of law as held by the Hon'ble Supreme Court in the case of Union of India vs. Bal Mukund and others, supra."
The said interpretation has also been made by this Court in the case of INSPECTOR OF CUSTOMS quoted supra at para Nos. 5 and 6 which reads as under:-
"5. The object of chemical examination and quantitative analysis is to find out as to whether the accused was in possession of commercial quantity or smaller or less than commercial quantity, so as to know as to what punishment he is liable. If the quantity is of smaller quantity, the punishment is only six months, if it is more than smaller quantity and less than commercial quantity, the punishment is extendable upto 10 years and fine and if it is more than commercial quantity, the punishment is upto 20 years and minimum is 10 years and in case of commercial quantity the investigation can be done upto 180 days.14
6. From the provision of the Act it is clear that, the chemical and quantity analysis has to be done at the earliest. Purpose of chemical examination is to find out the contents of Narcotic drug, if the chemical examination is delayed, there is every possibility of substance losing its character and on account of default in doing chemical examination at the earliest, it will result in failure of investigation and to book the accused for the said crime. But it is unfortunate that these matters are not seriously viewed by the authority, and their lapse yield to the benefit of the accused."
Even the Hon'ble Apex Court in the case of UNION OF INDIA quoted supra at para Nos. 36 and 37 has observed as under:-
36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the 15 laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.
37. There is another infirmity in the prosecution case. Section 55 of the Act reads as under:-
"55. Police to take charge of articles seized and delivered.- An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station."
PW 7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which 16 were seized or the contraband was found in them."
13. The proposition of law laid down by this Court and by Hon'ble Apex Court clearly indicates the fact that the chemical examination/quantitative analysis has to be done within 15 days from the date of receipt of seizure and even the Hon'ble Apex Court has also observed that the said instruction is a must.
14. Keeping in view the above said interpretation of standing instruction, let me consider the contention which has been taken by the learned CGSC appearing on behalf of the respondent.
15. It is his contention that Section 37 of N.D.P.S. Act is in addition to Section 439 of Cr.P.C. and Section 37 imposes limitation on granting of bail in addition to those provided under Section 439 of Cr.P.C. In this behalf, the learned CGSC for the respondent has relied upon the decision in the case of NARCOTIC CONTROL BUREAU v. 17 DILIP PRALHAD NAMADE reported in (2004)3 SCC 619 at para Nos. 8, 9 and 10 which reads as under:-
"8. It would be appropriate to take note of a few provisions which have relevance i.e. Section 2(xxiii) defining "psychotropic substances" and Section 37 dealing with bail. They read as follows:
"2. (xxiii) 'psychotropic substance' means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;
37. offences to be cognizable and non- bailable- (1) Notwithsatnding 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 a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-18
(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.
(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."
9. As observed by this Court in Union of India v. Thamisharasi clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and 19 that he is not likely to commit any offence while on bail.
10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent-accused is concerned, are: (1) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, and (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the 20 accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessities of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act."
16. A perusal of the said proposition of law indicates that Section 37 is imposing the limitation on granting of bail in addition to those provided under Section 439 Cr.P.C. and even it has been observed that the Court has to satisfy itself that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and is not likely to commit 21 any offence while on bail. If it is looked into, I am not having any difference of opinion with regard to the said proposition of law laid down by the Hon'ble Apex Court but while laying down the said proposition of law, the Hon'ble Apex Court has not considered the aspect of standing instruction issued by the Narcotic Control Bureau under Instruction 1.18. The instruction so issued under 1.18 mandates that the Narcotic Control Bureau should have the chemical examination done within 15 days from the date of submittal and the said instruction is a mandate issued by the respondent himself. In the absence of any such report, though as per the records the seizure is made seizing three kgs of Hashish and even the preliminary test was also conducted in this behalf by the concerned authority by using the Test Kit Instruction and the said Test Kit Instruction has also given the result that appearance of dark brown colour confirms the presence of Hashish, narcotic substance covered under the N.D.P.S. Act, but that is not the only substance which has been 22 enumerated. If the said test alone has to be considered, then under such circumstances, the question of issuing instructions separately under instruction 1.18 ought not have aroused.
17. Keeping in view the above said facts and circumstances of the case and in the absence of chemical analysis test as contemplated under the Instruction, I am of the considered opinion that though the seized article is considered to be Hashish as per the kit report, in the absence of the chemical analysis report, it cannot be considered and in that light, the accused-petitioner is having a right to be enlarged on bail by imposing some stringent conditions and at this juncture I could place on record that though the seized articles is more than the commercial quantity but due to lapse on the part of the department in not getting the report, the benefit of bail has to be extended to the accused-petitioner and in that light, the petition is allowed. The accused-petitioner is enlarged on bail subject to the following conditions:- 23
1. The accused-petitioner shall execute a personal bond for a sum of Rs.5,00,000/-
(Rupees Five Lakhs Only) with two local sureties for the likesum to the satisfaction of the jurisdictional Court.
2. He shall not leave the Country and he should surrender his passport if it is not already surrendered to the jurisdictional Court.
3. He shall not tamper with the prosecution evidence in any manner.
4. He shall not indulge in similar type of criminal activities and
5. He should be regular in attending the trial, if he fails to attend the trial, prosecution is having liberty to apply for cancellation of bail.
Sd/-
JUDGE SJK/SSD