Sagar Parshuram Joshi vs The State Of Maharashtra on 15 January, 2021

[Cites 14, Cited by 3]

Bombay High Court

Sagar Parshuram Joshi vs The State Of Maharashtra on 15 January, 2021

Equivalent citations: AIRONLINE 2021 BOM 151

2-BAST-4761-2020.odt Applicant, who is accused of having committed an offence punishable under Section 8(C)(ii), 22, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short), by this application, seeks bail. 2 Whether in a case under the NDPS Act, report presented under Section 173(2) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), is an incomplete report, if presented without the report of Chemical Examiner, Forensic Science Laboratory, is a question to be decided in this application.

3 In this context, certain dates and events regarding which, there is no dispute, needs to be referred to:

(I) That the application was arrested on 12 th October, 2019 .

(ii) On 18th February, 2020 i.e. within 180 days , charge-

sheet was fledd but without any report from Chemical Shivgan 2/24 2-BAST-4761-2020.odt Analyser

(iii) Prosecution asserts that, seized material was 'amphetamine'd narcotic drug.

(iv) Admittedly, as a case relates to commercial quantity, maximum period for which detention pending investigation could be authorised, without granting bail would be 180 days in view of the provisions of Sub-section (4) of Section 36A of the NDPS Act, from the date on which accused would be frst remanded into custodyd

(v) Admittedly, no extention of time was sought for completing investigation by the prosecution, meaning thereby period of 180 days referred to in Sub-section (4) of Section 36A was not extended by the Special Court.

(vi) Two successive bail applicationsd one seeking release on bail in accordance with the frst proviso to Sub-section (2) of Section 167 of the Cr.P.C. and another were rejected by the learned Special Court.

4 Heard Mr. Kadam, the learned counsel for the Shivgan 3/24 2-BAST-4761-2020.odt applicant and Ms. Shinde, the learned Additional Public Prosecutor for the State.

5 Question is, whether, presentation of report under Section 173(2) of the Cr.P.C. by police without report of the Chemical Analyser amounts to 'incomplete report' and in absence of any extention of time under Section 36-A(4) of the NDPS Act, accused is entitled for bail under Section 167(2) of the Cr.P.C.

6 The very question is pending for consideration before the larger Bench of the Punjab & Haryana Court in Criminal Revision No.1125 of 2020.

7 Mr. Kadam, learned counsel for the applicant would submit that unless contraband identifed as narcotic drug or psychotropic substance, fnal report "Charge-sheet"

presented by the police without report of Chemical Analyser amounts to incomplete investigation. It is next submitted Shivgan 4/24 2-BAST-4761-2020.odt that report of Chemical Analyser is foundation on the basis of which Magistrate can proceed to take cognizance and, therefore, Chemical Analyser's report assumes importance. Thus, Mr. Kadam submits that unless and until sample, which has been drawn by the prosecution conforms with article, which is seized during the investigation, i.e., emphetamine, the Court may not be in a position to take cognizance of the offence. Mr. Kadam thus, relies upon the judgment in the case of Suni Vasantrao Phulbande & Anr. v. State of Maharashtra 2002(3) Mh.L.J. 689. He would further submit that even assuming Chemical Analyser's report was not made available to the Investigating Ofcer on or before 180th day, prosecution could have sought extention to complete the investigation taking recourse to Section 36-A(4) of the NDPS Act.

8 In support of his submission, Mr. Kadam has relied on following judgments:

Shivgan 5/24

2-BAST-4761-2020.odt (1) Ajit Singh Alias Jeeta & Anr. v. State of Punjab in Criminal Revision No.4659 of 2015 of Punjab & Haryana High Court; (2) Sunil Vasantrao Phulbande v. State of Maharashtra 2002(3) Mh.L.J.689; (3) Manik Sahebrao Chaugule v. State of Maharashtra in Criminal Bail Application No.241 of 2017 of this Courtd (4) Ranjeet Manohar Machrekar v. State of Maharashtra in Criminal Bail Application No.509 of 2014 of this Courtd (5) Seema Raju Panchariya v. State of Maharashtra in Bail Application No.65 of 2018 of this Court (Bench at Aurangabad).

9 So far as the judgment of Punjab & Haryana Court in the case of Ajit Singh @ Jita (Supra) is concerned, it appears contraband was being identifed by the Investigating Ofcer through naked eye inspection, based on experience and knowledge, who arrived at prima-facie opinion of the commission of offence under the NDPS Act. In view of these facts, Division Bench has held as only way Shivgan 6/24 2-BAST-4761-2020.odt that it can be done, is to establish nature of contraband on the basis of Chemical Analyser report and for this reason, his report assumes immense signifcance for the Trial court for formulate an opinion, as the very cognizance of the offence would depend on it. Thus, held that "non-inclusion of Chemical Analyser's opinion in the report under Section 173 would expose the accused to unfounded danger imperiling and endangering his liberty since provisions of the NDPS Act in its applicability in its trial and conclusions are stringent in consonance." In all other cases cited by Mr. Kadam as it appears from the facts therein that neither extention was sought under Section 36A(4) of the NDPS Act nor, feld test was conducted. It is under these peculiar facts in all cases cited by Mr. Kadam, applicants were directed to be released on bail.

10 The State on the other hand, relied on the judgment of this Court in the case of Rafael Palafox Garcia v. Union of India 2009 Cri.L.J.446 to contend Shivgan 7/24 2-BAST-4761-2020.odt that in the case at hand, there is reference to test of contraband being conducted at the spot on feld test kit and the resultant colour matched colour pattern for the drug and, therefore, report contains all such facts mentioned in terms of Section 173(2) of the Cr.P.C. Submission is that report tantamounts to fnal report evidencing completion of investigation.

11 The State has also relied on the judgment of this Court in the case of Shrihari Valse v. State of Maharashtra in Criminal Bail Application No.3284 of 2018 to contend that once the substance is tested at spot by feld test kit by drawing the panchanama mentioning the fact therein that feld test has been conducted and such panchanama now being a part of the charge-sheet, a report fled by the police without opinion of the Chemical Analyser cannot be said to be incomplete report and would not preclude the Court from taking cognizance of the offence. Shivgan 8/24

2-BAST-4761-2020.odt 12 In the case at hand admittedly, on personal search of the applicant, psychotropic substance amphetamine, weighing 65 gms was recovered and seized in presence of independent panchas, upon compliance of statutory provisions/safeguards under the NDPS Act. Whereupon ofcer drew the samples and tested the substance by feld test kit. The substance tested and resultant colour that matched colour pattern of the drug (dark brown) revealing, it was a psychotropic substance at Sr.No.152 of the Table annexed to the Act. I have perused the complaint and the spot panchanma wherein it is stated that ofcers had tested suspect substance, by feld test kit. 13 Mr. Kadam, learned counsel for the applicant, would contend that pre-trap panchanama does not show that raiding party was equipped with feld test kit. It is, therefore, submitted that neither test was conducted nor report of alleged "Field Test" has been fled along with the charge-sheet. Submission is that, bare reference in Shivgan 9/24 2-BAST-4761-2020.odt panchanama, of the test being conducted at the spot by feld test kit, which matched colour pattern of the drug allegedly seized is neither "Sufcient Evidence" nor it is a ground of suspicion to prima-facie justify commission of offence by the applicant. Mr. Kadam, therefore, submits that fnal report submitted by the prosecution without opinion of Chemical Analyser amounts to incomplete investigation and, therefore, indefeasible right has accrued to the accused to claim his release on bail in accordance with the frst proviso to Sub-section (2) of Section 167 of the Cr.P.C. 14 Mr. Kadam, learned counsel for the applicant, has taken me through the charge-sheet and pointed out out of four accused, two of them, Tukaram Thakre and Sagar Parshuram Joshi (Applicant) were working with M/s. Watson Pharma Pvt Ltd. He has invited my attention to the panchanama dated 15th October, 2019, which suggests that accused Tukaram Thakre disclosed to police that while working with M/s. Watson Pharma Pvt. Ltd. at Ambernath, Shivgan 10/24 2-BAST-4761-2020.odt he had stolen white powder from the company. In pursuant to this information, Investigating Ofcer sought confrmation from the said company. In response thereto, General Manager of M/s. Watson Pharma Pvt. Ltd. confrmed that Tukaram Thakre and Sagar Joshi were working as operator and house-keeper as contractual employees. However, the said company vide letter dated 16 th October, 2019 denied, it manufactures amphetamine (substance recovered from the applicant and the co-accused). Along with the letter, the said Company has forwarded a list of products manufactured at site and the raw material required for the same.

15 It appears from the investigation that ofcer had taken sample of 'Ramlatan powder' from the said company, which was allegedly stolen by Tukaram Thakre, accused no.4 and eventually recovered from all the accused as "Narcotic Substance". Seizure panchanama dated 6 th November, 2019 shows that the sample of 'Ramlatan Shivgan 11/24 2-BAST-4761-2020.odt powder' has been seized for further investigation and report.

16 Relying on aforesaid material, Mr. Kadam, learned counsel for the applicant submitted that the applicant and co-accused were arrested on 11th October, 2019 on the suspicion that "white powder" recovered from was amphetamine after testing the powder with the reagents on feld test kit. Mr. Kadam submits, white powder samples drawn from the company M/s. Watson Pharma Pvt. Ltd., employer of the applicant resembles in colour with white powder recovered from the applicant. However, investigation record does not show that the sample collected/drawn from the company was sent to Chemical Analyser. It is, therefore, submitted, had the feld ofcers tested the powder recovered from company on the feld test kit and had reports, been fled on record, it would have assisted the Court to decide this application and appreciate prosecution case. Mr. Kadam, therefore, submits, in absence Shivgan 12/24 2-BAST-4761-2020.odt of explanation for not conducting the 'feld test' of the powder drawn/collected from the company, it creates doubt and proposes uncertainty of prosecution case. Therefore, it is one of the circumstances, to be taken into consideration while deciding this application. He submits, even otherwise report of feld test kit cannot be relied on as test by kit only gives presumptive/preliminary test and needs further confrmation from the Chemical Analyser. 17 Applicant seeks his release on bail on the aforesaid grounds.

18 Before adverting to the arguments of the learned counsel for the applicant, it may be stated that the Director General of the Narcotic Control Bureau has issued a feld ofcer's hand-book for guidance of Drugs Law Enforcement Ofcers. Chapter VI refers to, 'Drug Detection Kit', the relevant paragraph is as under:

"Drug Detection Kit: These kits assist the DLEO in forming a reasonable belief about a substance being a Shivgan 13/24 2-BAST-4761-2020.odt drug. The kit is a portable case containing different reagents that are used to test a small quantity of the substance recovered and determine the nature of the substance based on the color range resulting from the reactions of the suspect substance with the reagents. There are three types of test kits used at present :Narcotic Drugs Kit to test traditional drugs like Ganja, Charas, Opium Heroin, Cocaine, and the liked Precursor Chemicals Kit to test Acetic Anhydride, Ephedrine, Pseudoephedrine etc. and Ketamine Kit. All these kits are very user friendly and come with an instruction sheet to guide the the user draw appropriate inference. It is essential that the DLEO conducts the test, matches the resultant color and forms a reasonable belief that the substance gives positive color pattern for a drug. This process must be recorded in the Panchanama."

19 I have perused the hand-book. Chapter VII of the hand-book is about 'Drug Identifcation and Field Testing'. Chapter I enumerates, check-list, for Drugs Law Enforcement Ofcers, while executing the feld operation, to ensure that the Drugs Law Enforcement Ofcer does not overlook anything, which might subsequently affect the case. Item No.10 in the check-list reads as under:

"10. Were all recovered suspect substances feld tested with Drug Detection Kits/Precursor Testing Kits and the matching colour results to show presence of ND, PS or CS and was it all documented ?"

Shivgan 14/24 2-BAST-4761-2020.odt . In relation to the identifcation of drug, it states "Identification: Natural narcotic drugs like Ganja, Charas, Opium Poppy can be easily identifed by their color, texture and smell. But, most of the drugs abused today are refned and processed substances and are mostly circulated as white, off-white or brown powder, crystals or fakes or colorless odorless liquids. It is very difcult to identify a substance as a drug unless it is tested with different reagents."

. So far as the Drug Detection Kit is concerned, it is stated in the hand-book that these kits assist Drugs Law Enforcement Ofcers in forming reasonable belief about substance being a drug. The kit is a portable case containing different reagents that are used to test a small quantity of substance recovered and to determine the nature of substance based on the colour range resulting from the reactions of the suspect substance with reagents. It is stated that this process must be recorded in the panchanama.

Shivgan 15/24 2-BAST-4761-2020.odt 20 Obviously, these tests are only indicative and preliminary tests and need further confrmation for which sample is sent to a laboratory. Instructions in Hand-book also suggest, preparation of the test memo in triplicate on the spot and facsimile in print of seal used in sealing the envelopes, to be afxed on test memos (emphasis supplied).

21 In the case at hand, admittedly, it is recorded in the panchanama that test was conducted on the feld drug kit and the resultant colour pattern, (dark brown) conforms and matched suspect substance i.e. amphetamine, recovered from the person of the applicant. However, it may be stated that natural narcotic drug like Ganja, Charas, Opium Poppy can be easily identifed by their colour, texture or smell but most of the drugs abused today are refned and processed substances and are mostly circulated as white, off-white or brown powder, crystals or fakes or colorless, odorless liquids and, therefore, it is very difcult Shivgan 16/24 2-BAST-4761-2020.odt to identify the substance as a 'drug' unless it is tested with different reagents. A reagent is a substance or compound added to a system to cause chemical reaction. In the case at hand, prosecution has not pointed out with which re- agent the suspect substance was tested by the feld ofcers. Hand-book in Chapter VII as an illustration, has just given few visuals with which the ofcers should familiarize during the drugs law enforcement. Obviously, it means, the Narcotic Control Bureau, Ministry of Home Affairs, Government of India has not prescribed the standards to establish minimum requirements for colour test, and methods of testing reagents to determine nature of substance, based on colour range resulting from reaction with reagent. In the case at hand, it is prosecution's case that white powder (suspect substance) recovered from the person of the applicant and the co-accused when tested with reagents, it produced dark brown colour, which matches colour pattern for the amphetamine. However, there are no documented set standards as to which Shivgan 17/24 2-BAST-4761-2020.odt substance upon testing with reagent/s would produce, which colour. Thus, all and every aspect of feld testing is left to the experience, knowledge and perception of Law Enforcement Ofcer.

22 Be that as it may, the National Institute of Justice, US Department of Justice has set the NIJ standards for colour test reagents/kits for preliminary identifcation of the drugs of abuse. Table 1 in Chapter IV itemize particulars of fnal colours produced by the reagents with various drugs and other substances. However, a document of this kind, if any, by Ministry of Home Affairs is not made available by the prosecution to prima-facie ascertain and satisfy authenticity of test result of the feld test conducted of the suspect substance. Nor memos of test are forming part of the charge-sheet. Thus, in my view, bare reference of, feld test being conducted, on the kit in the panchanama is not "sufcient material" to detain the applicant in the jail, in absence of report from the Chemical Analyser. Besides, Shivgan 18/24 2-BAST-4761-2020.odt there is no such other material to prima-facie accept that 'suspect substance' recovered from the applicant was amphetamine. It may not be overlooked that the Chemical Analyser's report is an essential, integral and inherent part of the investigation under the NDPS Ac and would lay foundation of accused's culpability without which Magistrate is not able to form an opinion and take cognizance of the accused involved in the commission of offence under the Act. In the case at hand, prosecution relies on the test conducted on the feld and reference of such test being made in the panchanama. Except this, there is neither 'test memos' of such tests on record though, the Ministry of Home Affairs in the hand-book suggested feld ofcers' to prepare the test memo in triplicate (emphasis supplied). Additionally, in absence of documented, standards of colour test reagents for preliminary identifcation of drugs has not been made available to this Court. Therefore, entire feld test process of the suspect substance, with reagents and colour produced, Shivgan 19/24 2-BAST-4761-2020.odt whether matches colour pattern of particular drug or not is left to the understanding of the feld ofcers which is arbitrary. Thus, prima-facie to accept the authenticity of the preliminary test of the suspect substance recovered from the accused persons, prosecution is expected to place on record some more particulars or atleast test memos, which has not been done in the case at hand. Besides, it may also be stated that though prosecution has collected/drawn samples of the powder from a company where applicant and another co-accused were working neither preliminary report of that sample has been produced on record. Question to be posed, as to why feld ofcer did not conduct the feld test of the samples of 'Ramlatan powder' collected from the company where accused were working. Had the prosecution conducted this test and place on record 'test memos', would have certainly assisted this Court in appreciating prosecution case and contention of applicant- accused. Therefore, to say that today before this Court there is no sufcient material to accept, prima-facie, Shivgan 20/24 2-BAST-4761-2020.odt authenticity of the test result of the, suspect substance done on the spot by Field Test Kit.

23 One may argue that reference in the panchanama of the feld test being conducted at the spot cannot be overlooked as it is to be presumed in law that feld ofcers drew the panchanama in discharge of their ofcial acts and, therefore, a relevant fact, which can be tested only during the evidence. However, in this case, ofcers were not precluded from fling the 'test memos' and also could have taken recourse to Section 36-A(4) of the NDPS Act, and fle Chemical Analyser's report within extended time. 24 Be that as it may, prosecution has heavily relied on the judgment of the Hon'ble Apex Court in Tarasingh's v. The State1 case, to contend that report under Section 173(2) of the Cr.P.C. fled by the police without report of Chemical Analyser cannot be said to be incomplete report, 1 AIR 1951 SC 441.

Shivgan 21/24 2-BAST-4761-2020.odt so as to entitle the accused to grant of default bail under Section 167(2) of the Cr.P.C. on expiry of prescribed period of 60, 90 or 180 days as the case may be. In the case of Tarasingh (Supra), as it appears from the facts therein, police drew up their challan 2nd October, 2019 submitted to the Court on 3rd, except for the report of the Imperial Serologist and drawing of sketch map of occurrence. It was held therein that non-inclusion of such report has in no manner, change or affect contents of concepts of police reports. However, in the case at hand, as stated hereinabove, report of the Chemical Analyser lays the foundation of the accused's culpability, without which even Magistrate cannot form an opinion and take cognizance of the accused involvement in the commission of offence under the NDPS Act. In my view, prosecution ought to have as-least placed on record feld test reports of suspect substance. Thus, to state that bare reference in the panchanama of test being conducted was not 'sufcient' that "suspect substance" was amphetamine. Shivgan 22/24 2-BAST-4761-2020.odt 25 Thus, in consideration of the facts of the case, I am satisfed that there are reasonable grounds for believing that the accused is not guilty of the offence registered against him and in the back-drop of their vocation and in absence of any criminal antecedents, I have reason to believe that the applicant is not likely to commit offence under the Act while on bail.

26 That for the reasons stated, application is allowed. Applicant is arrested to be released on bail subject to following conditions:

ORDER

(i) Applicant in Crime No.II-369 of 2019 registered with Kopar Khairane Police Station, shall be released on executing PR bond for the sum of Rs.1,00,000/- with one or more sureties in like sum.

(ii) The applicant shall attend the concerned police station on 2nd and 4th Monday of each month commencing Shivgan 23/24 2-BAST-4761-2020.odt from February, 2021 between 11 a.m. to 1 noon till disposal of the appeal.

(iii) The applicant shall furnish his permanent and native residential address and contact number to the Investigating Ofcer within seven days from the date of his release on bail.

(iv) He shall deposit his passport, if any, with the Investigating Ofcer.

(v) The applicant shall not tamper with the evidence or attempt to infuence or contact the complainant, witnesses or any person concerned with the case

27 The application is accordingly allowed and disposed of.

28 It is made clear that observations made here-in- above be construed as expression of opinion for the purpose of bail only and the same shall not in any way infuence the trial in other proceedings.

(SANDEEP K. SHINDE, J.) Shivgan 24/24

Unlock Advanced Research with PRISMAI

Bombay High Court