Karnataka High Court
Shri Aayush Ajit vs Inspector Of Customs on 8 October, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.4017/2020
BETWEEN :
Shri. Aayush Ajit
S/o M.C.Ajit
Aged about 21 years
Residing at Venkat Saanvi Reddy PG for Gents
House No.118, 1st Cross, 3rd Main
Hemanath Nagar, Marathahalli
Bengaluru-560 037.
... Petitioner
(By Sri Sreevatsa S., Senior Counsel for
Sri Akshay Sreevatsa, Advocate)
AND :
Inspector of Customs
Headquarters Preventive Unit (HPU)
Bengaluru City Customs
Bengaluru-560 001.
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
... Respondent
(By Sri. Amit Desphande, Senior CGSC)
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This Criminal Petition is filed under Section 439 of
Cr.P.C r/w Section 37(1) of the Narcotics and
Psychotropic Substances Act, 1985 praying to enlarge the
petitioner on bail in C.No.VIII/48/28/2020-21 of City
Customs-HPU, Bengaluru for the offences punishable
under Sections 8(C), 21, 23 and 29 of NDPS Act.
This Criminal Petition having been heard and
reserved on 24.09.2020 coming on for pronouncement of
orders 'through video conference' this day, the Court
made the following:-
ORDER
Petitioner-accused is before this Court under Section 439 of Cr.P.C. to release him on bail in C.No.VIII/48/28/2020-21 filed by City Customs-HPU, pending on the file of City Civil and Sessions Judge and Special Court for NDPS, Bengaluru for the offences punishable under Sections 8(c), 21, 23 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short).
2. I have heard Sri Sreevatsa S. learned Senior Counsel for Sri Akshay Sreevatsa for the petitioner and Sri Amith Deshpande, learned Senior CGSC for the respondent.
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3. The case of the prosecution in brief is that on 17.6.2020, Foreign Post Office (FPO) Chamarajpet, received parcels. Eight parcel were identified as suspicious. Out of them, one parcel was addressed to the petitioner-accused. On the same day, the parcel relating to the petitioner-accused was unpacked and tested. It was found positive for the presence of 'MDMA' using the Drug Detection Kit and they confirmed the same. On 30.6.2020 a letter bearing the same date was issued by the Deputy Commissioner, Customs to the Officers of the Headquarters Prevention. On 7.7.2020 Officers of H.P.U. conducted physical examination and the parcel was reopened. 10 grams was removed and divided into two lots of 5 grams each and a mahazar was drawn. On credible information, the Investigating Agency conducted the search of the house of the petitioner-accused, but nothing was traced there. The parcel was containing the address of the petitioner and he was shown as an authorized person for the said -4- parcel. Subsequently, on 8.7.2020 and 8.8.2020 the voluntary statement of the accused was recorded under Section 67 of the NDPS Act, wherein he admitted that he has booked the parcels from Netherlands by placing a bitcoin orders. On the basis of the statement, a case has been registered against the petitioner-accused.
4. It is the submission of the learned Senior Counsel for the petitioner-accused that from the very outset the complaint is raddled with inconsistencies and procedure as required in accordance with law has not been followed. It is his further submission that though the accused has been interrogated on 8.7.2020, no summons have been issued to the accused to appear before the authorities. Subsequently, when the voluntary statement has been recorded on 9.7.2020 it has been mentioned that he was requested to appear before the authorities. It is his further submission that the parcel has come to the FPO on 17.6.2020 and on the same day it was unpacked and found to test positive for -5- presence of 'MDMA' and it was resealed. Subsequently after 13 days, i.e., on 30.6.2020 parcel was opened and out of it two lots of material has been removed for the purpose of chemical examination. It is his further submission that when the parcel was opened first and tested and it was resealed and again after 13 days the search order has been taken and after 7 days again it was reopened. Under such circumstances, contamination of the contents of the said parcel cannot be overruled. It is his further submission that from 17.6.2020 to 7.7.2020 the petitioner-accused had never even seen the parcel or he was knowing its arrival and even the customs authorities have not made aware of existence of such parcel to the petitioner-accused. It is his further submission that when 17.6.2020, the parcel was found to test positive as contraband, no mahazar has been drawn and even no material has been produced to show that in whose presence and under whose authorities the parcel has been opened or the procedure followed in this behalf. -6- It is his further submission that there is nothing to show as to when or how much of the alleged contraband was contained in the impugned parcel and when it was removed and tested. The authorities who have tested and opened the parcel have vaguely given the statement contending that it was contained narcotic substance without there being any tests as prescribed. It is his further submission that how the Deputy Commissioner of Customs has discovered such a large prohibited substance within 13 days after recovery of the parcel. Covid-19 is not an explanation for the delay in conducting the proceedings. It is his further submission that Standing Instruction No.1/88 has not been followed. If the said mandate is not followed and there is a violation, then under such circumstances, the petitioner- accused is entitled to be released on bail. In order to substantiate such arguments, he has relied upon decisions in the case of Union of India Vs. Bal Mukund & Others, reported in (2009)12 SCC 161; in the case -7- of Chandru Kundhru Raguvegowda Vs. Inspector of Customs, Bengaluru reported in ILR 2017 KAR 4053; in the case of Mrs. Grace Rai @ Rose Vs. Intelligence Officer, Narcotics Control Bureau, in Criminal Petition No.7374/2018 disposed of on 3.4.2019. It is his further submission that if mandatory provisions of Standing Instructions issued by NCB are not followed, it is very difficult for the Courts to decide as to whether the seized article is a contraband or not and the seized quantity is commercial quantity or not. In that light, he has relied upon the decision of the Hon'ble Apex Court in the case of Sami Ullaha Vs. Superintendent, Narcotics Bureau, reported in (2008)16 SCC 471.
5. It is his further submission that the ambit of Section 27 of the NDPS Act is not sustainable. The prosecution must be satisfied that there are reasonable grounds to believe that the accused is not guilty of the alleged offence and he is not likely to commit any offence while enlarged on bail. Section 37 of the NDPS Act only -8- prescribes that an opportunity has to be given to Public Prosecutor in view of the principles of natural justice. If those conditions are satisfied, then the Court can grant the bail. To substantiate his contention, he relied upon the decision in the case of N.R.Mon Vs. Mohd.Nasimuddin, reported in (2008)6 SCC 721. It is his further submission that whether the accused has committed the alleged offence under the NDPS Act or not is a matter which has to be tried and decided during the course of trial. The petitioner-accused is ready to abide by the conditions and ready to offer the sureties. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
6. Per contra, the learned Senior CGSC for the respondent has vehemently argued and submitted that there is material to show that Standing Instruction No.1/88 has been followed. The parcels which have been received by FPO were opened in the presence of the accused and with the help of kit qualitative and -9- quantitative tests have been conducted and the tests reveled that the said parcel was contained 'MDMA'. It is his further submission that by taking into consideration the rigor of the offence, the provisions of Section 37 of the NDPS Act are not applicable. It is his further submission that if 'MDMA' is 10 grams or more, then it is considered to be commercial quantity. But the total 'MDMA' which has been seized is 150 grams worth Rs.15 Lakhs. The petitioner is involved in organized crime by placing the orders from Netherlands through bitcoins. It is his further submission that in the confessional statement of the accused, he has also admitted about placing the orders from Netherlands, which is admissible in the evidence. It is his further submission that in his statement he has not stated about misusing of the said name and address. If at all he is not involved, how the parcel has been posted to his address and no explanation has been given by the accused in this behalf. Still the investigation is pending and the Investigating Agency has
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to further investigate to know who are all other persons connected with the alleged crime. When the petitioner- accused has not denied the ordering of the said material from Netherlands, then the Investigating Officer has to investigate as to how this crime has been organized and the manner in which the crime has been committed. It is his further submission that Section 37 of the NDPS Act indicates that if the offence is cognizable offence, it is non-bailable and a finding mandated under Section 37 of the NDPS Act has to be satisfied for granting the bail to the accused. In that light, he has relied upon the decision in the case of State of Kerala, etc. Vs. Rajesh, etc. reported in 2020 AIR(SC) 721. It is his further submission that if prima facie the material indicates that there is a material as against the petitioner-accused and if there are no strong reasons to accept the contention of the petitioner-accused then the Court cannot grant bail. In that light, he has relied upon the decision of this Court in the case of Shaikh
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Nizamuddin Mohd. Kasim Vs. The State by DRI in Criminal Petition No.162/2020 disposed of 29.5.2020. It is his further submission that immediately after conducting the test with kit it has been noticed that the said article which has been seized is 'MDMA' and it is more than the commercial quantity. In view of Circular No.1/88 the qualitative test has to be conducted within 15 days and quantitative test has to be done within 30 days, which has also been followed and in that light, the petitioner is not entitled to take the benefit in this behalf. It is his further submission that the petitioner-accused is involved in a serious offence. At this juncture, if he is enlarged on bail, he may abscond and may not be available for trial. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made on behalf of both the parties and perused the records.
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8. On perusal of the contents of the complaint, while examining the unregistered parcel on 17.6.2020 they found 8 parcels suspected to contain some suspicious articles. Immediately they were tested on the basis of Drug Detection Kit and found to be positive for the presence of 'MDMA' and in that light, when they verified the parcel address it was addressed to the petitioner-accused. Subsequently, the said parcel has been opened by drawing a mahazar and net weight of 150 grams was containing psychotropic substance and the kit test has also given result of positive for the presence of 'MDMA'. Subsequently, the statement of the accused has been recorded by summoning him and he has not denied that he has not placed any orders from Netherlands. Even it is noticed from the contents of the complaint, the address which has been mentioned on the parcel it was confirmed that in the said address the petitioner-accused was staying since January 2020 and was sharing with Sri Venumuragan and the said
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Venumuragan was out of station and had gone to his native place in the month of March, 2020.
9. Though it is contended by the learned Senior Counsel that the procedure adopted by the NCB is not proper and not correct as there are long gaps between the receipt of the parcel and opening of the parcel, resealing it and again the parcel has been reopened for the purpose of test to send it to FSL, as could be seen from the contents of the records, the mahazars have been drawn for having opened the parcels and for having conducted the tests and resealed. At this premature stage, this Court cannot go into the depth of the aspect as to whether the procedure followed is correct or not as it has to be considered and appreciated only at the time of trial and not at this premature stage. As per Section 37 of the NDPS Act, three conditions have to be adhered to by the Court while dealing with the parameters of Section 439 of Cr.P.C. The NDPS Act has been enacted with an object to make stringent provisions of control,
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regulation and operation relating to NDPS Act. It is a special enactment which states that and it includes a non-obstante clause and it is in negative terms limiting the scope and applicability of the provisions of Code of Criminal Procedure for grant of bail. Non-obstante clause with which Section 439 of Cr.P.C. should be given with co-manner and clearly it is intended to restrict the power of Court to grant bail. The power to grant bail under any of the provisions of the Code of Criminal Procedure necessarily be subject to conditions mentioned in Section 37 of the NDPS Act. For the purpose of brevity, I 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
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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.
(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."
10. On close reading of aforesaid Section, there are specific limitations prescribed, firstly, Public Prosecutor has to be given an opportunity to oppose the application
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and secondly, the Court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.
11. By taking into consideration the principles, the first condition has been fulfilled as already the learned Senior CGSC for the respondent is appearing and has been given an opportunity to file his objection and in pursuance of the notice he has filed his objections. The Court has to now examine as to whether there are any reasonable grounds for believing that the accused is not guilty of such offence at this particular time. If the Court is of the opinion that there is sufficient material to establish the case of the accused, in such eventuality, the petitioner is not entitled to be released on bail. However, the non-compliance of mandatory provisions is also to be taken into consideration while dealing with the bail matters under Section 439 of Cr.P.C. and particularly Section 37 of the NDPS Act. If the mandatory provisions
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are not strictly followed, it would otherwise prejudice the accused, in such an eventuality the rigor of Section 37 of the NDPS Act will be diluted and the accused may be entitled to be released on bail.
12. Keeping in view the aforesaid aspect, now let me examine the grounds raised by the learned Senior counsel for the petitioner-accused. It is contended by the learned Senior Counsel for the petitioner that Standing Instruction No.1/88 has not been followed and the qualitative and quantitative tests have not been conducted within the stipulated period as prescribed therein. In that light, he has relied upon the decisions in the case of Union of India Vs. Bal Mukund & Others; Chandru Kundhru Raguvegowda Vs. Inspector of Customs, Bengaluru (cited supra). I have carefully and cautiously gone through the ratio laid down in the aforesaid decisions, so also the order passed by this Court in Mrs. Grace Rai @ Rose Vs. Intelligence Officer, Narcotics Control Bureau (quoted supra)
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wherein this Court has discussed the said aspect in detail. But the same has to be looked into with reference to the facts of the present case.
13. In the instant case, petitioner's address has been found on the package received from Netherlands. Even in his confessional statement, he has not denied that he has not ordered for the said parcels or who else has placed the order. Now the test has been conducted by using the Kit and satisfied the provisions of qualitative test under section 37 of the NDPS Act. Even it is submitted during the course of arguments by the learned Senior CGSC for the respondent that the quantitative test has also been conducted in accordance with law and totally they have found 150 grams of 'MDMA' and 10 grams of 'MDMA' is considered to be a commercial quantity. In that light, procedure as per Standing Instruction No.1/88 has been followed and therefore the contention raised by the learned Senior Counsel is not acceptable.
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14. When the quantity of seized article is exceeding commercial quantity and admittedly. still the investigation is pending and it has not yet been concluded, then under such circumstances, detailed discussion while dealing with bail application and the formalities cannot be considered. The Court has to look into minimum facts to know whether there is a prima facie case as against the petitioner-accused. In this connection, I want to rely upon a decision of the Hon'ble Apex Court in the case of Superintendent, Narcotics Control Bureau, Chennai Vs. R.Paulsamy, reported in (2000)9 SCC 549, wherein it has been observed as under:-
"Non compliance with certain provisions of the Act - Bail application - Factors to be borne in mind - Respondent and his wife prosecuted under section 8C, 21, 27A, 28 and 29 of the NDPS Act, and under Ss.193 and 120B of Penal Code. High Court granting bail on the ground of non-compliance with Ss.52 and 57 of the Act - Having regard to the
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provisions section 37 of the Act, held, it would be too early to take into account and judge, the matter regarding non-compliance with the formalities during the bail stage - Since recording of findings under S.37 of the Act was a sine qua non for granting bail under the Act. The minimum facts the court should have taken into account was the factual presumption in law that the official acts by the officers have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the court."
15. Keeping in view the ratio laid down and on perusal of the factual matrix of the case on hand, commercial quantity of 'MDMA' has been recovered and the same has been come through the postal authorities in pursuance of the order placed by the accused- petitioner and on the postal package the name of the petitioner and address were also found, the burden shifts upon the petitioner-accused to explain as to under what
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circumstances the said parcel containing 'MDMA' has been addressed to him.
16. Though during the course of the arguments, it is contended by the learned Senior Counsel that the petitioner-accused does not know the contents of the parcel, receipt of the said parcel and how it has come to his address, that is a matter which has to be considered and appreciated only at the time of trial, that too, when it is contended that payment has been made through bitcoins. Still the investigation is pending and the Investigating Agency has to trace as to who actually placed the orders and has paid the amount for the purpose of getting the parcel. In that light, at this premature stage, it cannot be held that there is no prima facie material as against the petitioner-accused for not having been involved in the alleged crime.
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In the light of the discussion held by me above, the petition is liable to be dismissed and accordingly the same is dismissed.
However, liberty is reserved to the petitioner to move for bail, after filing of the charge sheet.
IA No.1/2020 does not survive for consideration and the same is accordingly disposed of.
Sd/-
JUDGE *ck/-