Karnataka High Court
Paulus Andrias vs Intelligence Officer on 26 October, 2016
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2016
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.6482/2016
BETWEEN:
Paulus Andrias
S/o Late Lucas Andrias
Aged 49 years
R/o No.2086, Mersey Street
Wanaheda, Windhoek
P.O.Box No.4876
Windhoek
Namibia-9000. ... PETITIONER
(By Sri K S Vishwanath, Adv.)
AND:
Intelligence Officer
Narcotics Control Bureau
Bangalore-560 063.
Represented by
Special Public Prosecutor. ...RESPONDENT
(By Sri K N Mohan, Spl. P.P.)
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This Criminal Petition is filed under Section 439 of
the Cr.P.C. praying to enlarge the petitioner on bail in
NCB F No.48/1/1/2016/BZU of Narcotics Control
Bureau, Bangalore and Spl.C.C.No.142/2016 pending
on the file of the XXXIII Addl. City Civil and Spl. Judge
(NDPS), Bengaluru, for the offences P/U/Ss 9A, 25A,
28 and 298 of NDPS Act.
This Criminal Petition coming on for orders this
day, the Court made the following:
ORDER
This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 9A r/w Sections 25A and 29 of the NDPS Act registered by the respondent in case No.NCB F No.48/1/1/2016/BZU.
2. Brief facts of the prosecution case as per the complaint averments are that on 18.1.2016 around 8.50 p.m. on the information alleged to have been received by the Intelligence Officer, Narcotics Control Bureau from CISF, Kempegowda International Airport, Bengaluru about a person by name Paulus Andrias (petitioner 3 herein), Namibian, having passport P0397052 having been found with some suspected material in his baggage, the Intelligence Officer took permission from the Superintendent and arranged a team of officers and went to Kempegowda International Airport at 9.50 p.m. There the Intelligence Officer secured two persons to act as witness and then the CISF official took them to CISF control room, wherein NCB officers introduced themselves to the petitioner and after all formalities, the NCB officers conducted search of the petitioner. During his personal search nothing incriminating was found. However, during search of the baggage, twenty packages wrapped in carbon paper inside the red colour suitcase were found, which raised suspicion and on opening the same white coloured substance in crystalline powder form was found. On testing, it is confirmed that the substance is Ephedrine, a controlled substance weighing 20 kgs. and seizure proceeding was done 4 under the mahazar dated 18.1.2016 and after completion of the mahazar proceedings, petitioner was issued summons to appear on 19.1.2016 at the office of NCB, Bengaluru. On the basis of the said complaint, case was registered against the petitioner for the above offences.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned Spl. P.P. for the respondent -State.
4. Learned counsel for the petitioner during the course of his arguments submitted that the materials said to have been seized by the respondent is not at all the psychotropic substance or a drug, it is the Ephedrine, a controlled substance. It is his further submission that the said substance does not come under the schedule to the NDPS Act. The laboratory 5 report shows that the said substance is not the prohibited drug under the NDPS Act, but it is Ephedrine substance. He has submitted that the maximum punishment for the alleged offence is 10 years with fine of Rs.1,00,000/-. The other High Courts have also considered the subject for the similar offences and have granted bail to the persons accused of such offences. In this regard, he has also relied upon the decision of this Court dated 19.6.2013 rendered in Crl.P.No.7886/2012. He further submitted that the Bar under Section 37 of the NDPS Act is also not made applicable to the alleged offence. The package in which the said substance was stored was given to the petitioner without bringing to his knowledge that the said package contained such material. He has submitted that petitioner is ready to abide by any reasonable conditions to be imposed by the Court. Hence, he may be granted with bail. 6
5. Learned Spl. P.P. has filed detailed objection statement and also submitted during the course of his arguments that as per the prosecution material petitioner was possessing 20 kgs. of the said substance and he is a foreign national. If he is released on bail, it is difficult to secure his presence during the course of trial. The decision passed by this Court referred to above is in respect of the Indian National. Therefore, so far as securing the presence of petitioner is concerned, the said decision cannot be relied upon. There is a prima facie material collected during investigation against the petitioner. Hence, petitioner is not entitled to be granted with bail.
6. I have perused the grounds urged in the bail petition, complaint and other materials placed on record by the learned counsel for the petitioner along with the petition.
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7. It is no doubt true, as per the report of the laboratory, the material which is said to have been seized from the possession of the petitioner is Ephedrine, a controlled substance and as rightly submitted by the learned counsel for the petitioner it is neither a narcotic drug nor a psychotropic substance under the NDPS act. It is also his contention that now the investigation is completed and charge sheet has been filed. As rightly submitted, the alleged offence is not punishable with death or imprisonment for life. The maximum punishment prescribed for such offence is 10 years imprisonment with fine of Rs.1,00,000/-. In the petition petitioner has contended that he is ready to abide by any reasonable conditions to be imposed by this Court. Looking to the materials collected during investigation, prima facie the Court is satisfied that the substance said to have been seized is Ephedrine, which comes under the control subject.
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8. I have also perused the order of this Court passed in W.P.No.7886/2012 dated 19.6.2013. Similar set of allegations are made regarding seizure of similar substance from the possession of the petitioner in the said case. Therefore, only on the ground that petitioner herein is a foreign national, petition cannot be rejected when otherwise he has made out a case for his release on bail, stringent conditions can be imposed and petitioner may be admitted to regular bail.
9. Accordingly, petition is allowed.
Petitioner/accused is ordered to be released on bail for the offences punishable under Sections 9A r/w Sections 25A and 29 of the NDPS Act registered by the respondent in case No.NCB F No.48/1/1/2016/BZU, subject to the following conditions:
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i. Petitioner shall execute a personal bond for a sum of Rs.2,00,000/- with two solvent sureties for the likesum to the satisfaction of the concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner shall surrender his passport before the concerned Court and shall not leave the jurisdiction of the Court without prior permission of the concerned Court.
iv. Petitioner shall furnish his present address to the concerned Court.
v. Petitioner shall appear before the
concerned Court regularly as per the
scheduled dates.
Sd/-
JUDGE
bkp