Karnataka High Court
Abhishek Thimmaiah vs Union Of India on 19 September, 2018
1 CRL.P. No.5259/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER 2018
BEFORE:
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL PETITION No.5259/2018
BETWEEN:
ABHISHEK THIMMAIAH,
S/O. LATE K.P.APPANNA,
R/O.99, GROUND FLOOR,
2ND CROSS, 2ND MAIN,
NANJAPPA LAYOUT,
VIDYARANYAPURA,
BENGALURU-560 097. ... PETITIONER
(NOW IN JUDICIAL CUSTODY)
[BY SRI. K.S.VISHWANATH, ADVOCATE]
AND:
UNION OF INDIA,
NARCOTICS CONTROL BUREAU,
BENGALURU ZONAL UNIT-560 063.
THROUGH INTELLIGENCE OFFICER,
REPRESENTED BY SPP,
BENGALURU-560 001. ... RESPONDENT
[BY SRI. K.N. MOHAN, SPL.PP.)
***
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB F
NO.48/1/10/2018/BZU OF NARCOTICS CONTROL BUREAU,
BENGALURU ZONAL UNIT, BENGALURU, FOR THE OFFENCES
UNDER SECTIONS 8(c) R/W 20(b), 22, 27, 27A & 28 OF NDPS ACT,
WHICH IS PENDING ON THE FILE OF HON'BLE SPECIAL COURT FOR
NDPS., BENGALURU.
2 CRL.P. No.5259/2018
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
This petition has been filed by the petitioner/accused No.1 under Section 439 of the Cr.P.C., seeking for his release on bail for the offences punishable under Sections 80(c) r/w. 20(b), 22, 27, 27A & 28 of the Narcotic Drugs and Psychotropic Substance Act, 1985 ['the NDPS Act' for short] in Crime No.NCB F No.48/1/10/2018/BZU of the Narcotics Control Bureau, Bengaluru Zone Unit, Bengaluru.
2. The respondent has filed a detailed statement of objections.
3. The case of the prosecution in brief is that; On 24.05.2018 at about 2.30 p.m., the Intelligence Officer of the Narcotics Central Bureau, Bengaluru Zonal Unit, Bengaluru had received the information that drug trafficker by name Sandeep, who is aged about 30 years was going in a silver coloured CBZ motorbike to meet another drug trafficker 3 CRL.P. No.5259/2018 by name Abhishek, who is also aged about 30 years at his residence at Nanjappa Layout, Vidyaranyapura, Bengaluru, for the purpose of drug business at about 5.00 p.m. When the Intelligence Officer along with panchas were waiting from 4.30 P.M. it was found that one person carrying a bag came in a silver coloured CBZ motorbike and went inside the aforesaid house. They went inside the house, conducted search and found silver coloured dell laptop and one wallet. After searching the wallet they found plastic pouch containing 20 LSD blotter papers weighing 0.48 gms., cash of Rs.14,000/-, State Bank Card, two passport size photos, voter card, Aadhaar card and driving license. When the Intelligence Officer asked about possession of the drugs, the petitioner went inside the room, opened the cupboard and took out polythene pouch containing 29 LSD blotter papers weighing 0.57 gms., 13 Ecstasy pills weighing 5.26 gms., 85 gms of Hashish, 0.55 gms of MDMA Crystals, 850 gms of Ganja, Bank pass books, 6 live and 3 used 65 mm 12 bore cartridges, one black coloured Sony Vaio laptop, one Silver 4 CRL.P. No.5259/2018 Black Coloured Dell laptop and a cash of Rs.65,460/-. All the articles were seized by drawing mahazar and a case was registered in this regard against the accused.
4. Learned counsel for the petitioner submitted that when the petitioner/accused No.1 was produced before the Court he has been questioned as to when he was arrested. At that time he gave a answer that he had been arrested at 3.00 p.m. Actually, all proceedings have taken place at about 5.00 p.m. That itself clearly goes to show that the raid has not taken place at that time and the records have been created and prepared for the purpose of this case. He further submitted that as contemplated under the guidelines issued by the Narcotics Control Bureau, Delhi, preliminary test has not been conducted so as to ascertain whether the seized substances are drugs or not. He further submitted that except the LSD blotter paper, the other articles which have been seized are less than the commercial quantity and as such, there is no violation of any of the provisions of the NDPS Act. He further submitted that seized LSD blotter 5 CRL.P. No.5259/2018 papers have been sent for chemical analysis to Hyderabad, Kolkata, Delhi, but they have not been tested and returned to the Investigating Agency without any chemical analysis. The actual guidelines issued in this regard by the Narcotics Control Bureau, Delhi, that they have to get analysis of the seized material within 15 days or within 30 days maximum, but in the case on hand, already 4 months have been lapsed and no such analysis or FSL report has been obtained. This itself shows that the seized articles are not drug substances.
Further, learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court reported in (2017)8 Supreme Court Cases 162 in the case of Hira Singh and Another Vs. Union of India and Another and submitted that the decision rendered by the Hon'ble Supreme Court in the case of E.Micheal Raj Vs. Narcotic Control Bureau reported in (2008)5 SCC 161 is binding effect of law with reference to the commercial quantity and the small quantity is concerned. He further relied on the decision of this Court and other Courts and submitted that the petitioner/accused No.1 6 CRL.P. No.5259/2018 is innocent and he is ready to abide by any of the condition/s to be imposed by this Court. He further submitted that the petitioner/accused No.1 is a Civil Engineer by profession and if he is detained in jail for long time, his liberty is going to be curtailed. On these grounds, he prays to release the petitioner/accused No.1 on bail.
Per contra, Sri. K.N. Mohan, learned Special Prosecutor in support of his case by drawing my attention to the mahazar and other documents submitted that the raiding party carries the drug detection kit and immediately after seizure of the said articles, positive result has been given with regard to the articles seized i.e., Hashish and other material. He further submitted that the petitioner/accused No.1 is involved in a social offence, which is having an effect on the entire society. He has further submitted that the quantity so seized during the course of the raid itself clearly goes to show that the petitioner/accused No.1 is a habitual offender. He further submitted that the investigation is still in progress and charge-sheet has not yet filed. At this juncture, if the 7 CRL.P. No.5259/2018 petitioner is released on bail, he may likely to continue his criminal activities and may not be available for further investigation and interrogation. On these grounds, he prays for dismissal of the petition.
5. I have heard the learned counsel for the petitioner and also the learned Special Public Prosecutor Sri. K.N. Mohan, for the respondent.
6. I have gone through the contents of the complaint and other materials, which have been produced along with the petition and also the decisions which have been referred to by the learned counsel for the petitioner.
7. I am not having any difference of opinion with regard to the proposition of law laid-down in the aforesaid decisions. All the proposition of law which have been laid- down they are only when the case has been tried and decisions has been given on considering the material on merit. But, in the instant case on hand, I have to consider 8 CRL.P. No.5259/2018 whether the petitioner/accused No.1 is entitled to be released on bail.
8. No-doubt, the learned Special Public Prosecutor brought to my notice that the raiding party has carried drug detection kit and it has given a positive result. But, the learned counsel for the petitioner has brought to my notice that the seized LSD articles have been sent to the Central Forensic Science Laboratory, Hyderabad, Kolkata and Delhi and the letters issued by the Director clearly indicates the fact that the said articles have been returned citing the reason of non-availability of standard reference material of LSD samples.
9. In that light of the above, if the entire case is looked into, the other seized articles are less than commercial quantities, but in respect of the LSD is concerned, there is no material to hold that the said seized substance is a drug within the meaning of the NDPS Act. The drug detection kit result is not being the only analysis which has to be taken into consideration by the Court. But, it is the FSL report that 9 CRL.P. No.5259/2018 has to be considered in this regard. Even the perusal of Rule 1.18 of the NDPS Act indicates that the commercial report has to be obtained within 15 days from the date of receipt of the sample and in the absence of the report, it cannot be inferred that the seized article is not covered within the provisions of the NDPS Act. But, the said observation is not come in the way of deciding the case on merit during the trial.
10. Taking into consideration the above facts and circumstances, I am of the considered opinion that the material placed on record prima facie does not make out a case to show that the seized LSD is a drug and there is violation of the NDPS Act. Under the peculiar facts and circumstances, I am of the opinion that if the petitioner/accused No.1 is released on bail on imposing stringent conditions, it will meet the ends of justice.
Accordingly, the petition is allowed.
i) The petitioner/accused is ordered to be released on bail in NCB F. No.48/1/10/2018/BZU for the offence 10 CRL.P. No.5259/2018 punishable under Sections 8(c) r/w. 20(b), 22, 27, 27A and 28 of the NDPS Act on executing a personal bond for a sum of Rs.2,00,000/- with two sureties for the likesum to the satisfaction of the jurisdictional Court.
ii) He shall not tamper with the prosecution evidence in any manner.
iii) He shall not leave the jurisdiction of the Court without prior permission.
iv) He shall appear before the Court below regularly till the trial is concluded.
v) His original passport shall be handed over to the concerned court if it is not already surrendered before the Court.
Sd/-
JUDGE.
Ksm* CT-Jlr