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2013 DIGILAW 578 (KAR)

Saeidi Mozdhdeh Ehsan v. State of Karnataka

2013-05-03

H.N.NAGAMOHAN DAS

body2013
ORDER H.N. Nagamohan Das, J.—Petitioner is the accused in crime No. 371/2012 registered in Sanjaynagar Police Station, Bangalore city, for the offences punishable under Section 17, 21, 20(B)(ii) of NDPS Act and Section 14(a) of the Foreigners Act. On credible information received, the respondent police raided the premises of the petitioner on 17.10.2012 and in the search they found 7 grams of Cocaine in the pant pocket of the petitioner, in a rexine bag 65 grams of Magic Mushroom, 110 grams of Opium, 90 grams of Charas, 3 KGs of Ganja, 15 Ecstasy Sample tablets and they were seized under a mahazar. The petitioner was arrested. The matter is under investigation. 2. According to the petitioner the respondent police ought to have completed the investigation and filed the charge sheet within 60 days. Since the respondent police failed to file the charge sheet within 60 days the petitioner filed an application under Section 167(2) Cr.P.C. for statutory bail before the XXXIII Additional City Civil and Sessions Judge, (NDPS), Bangalore. Vide order dated 28.12.2012 the Sessions Judge, in crime No. 371/2012, rejected the bail petition filed by the petitioner. Therefore the petitioner is before this Court under Section 439 Cr.P.C. 3. Heard arguments on both the side and perused the entire petition papers. 4. It is not in dispute that insofar as the seized drugs, that is, Cocaine, Opium, Charas and Ganja are concerned, they do not fall under the commercial quantity. According to the respondent police the Magic Mushroom seized from the petitioner weighs 65 gms and the same is a commercial quantity. The respondent police subjected this Magic Mushroom for chemical analysis and the Scientific Officer, FSL, Bangalore confirmed the presence of Psilocin and Psilocybin. Admittedly the Magic Mushroom is not mentioned in the schedule to the NDPS Act. The report submitted by the Scientific Officer, FSL, Bangalore do not specify the percentage of Psilocin and Psilocybin. In the absence of the percentage of the narcotic drug it is manifest that the seized Magic Mushroom is not a commercial quantity. As such the petitioner is entitled for bail. 5. The contention of the learned Government Pleader that the Magic Mushroom is a mixture as notified under the notification dated 18.11.2009 and the scientific report specifies the presence of narcotic drug and therefore the provisions of NDPS Act are applicable is unacceptable to me. As such the petitioner is entitled for bail. 5. The contention of the learned Government Pleader that the Magic Mushroom is a mixture as notified under the notification dated 18.11.2009 and the scientific report specifies the presence of narcotic drug and therefore the provisions of NDPS Act are applicable is unacceptable to me. It is not in dispute that the Magic Mushroom is a natural produce and as such the same do not fall under the definition of 'mixture'. The quantity of the substance is to be taken into consideration to find out whether the seized drug falls within the category of small quantity or commercial quantity. In the instant case the scientific report do not specify the percentage of presence of Psilocin and Psilocybin. In the absence of any such material on record it is not possible to accept the contention of the learned Government Pleader that the seized Magic Mushroom is a mixture. The apprehension in the mind of the prosecution that the petitioner is a foreign national and in the event of enlarging him on bail he may jump the condition of bail is to be protected by putting the petitioner on some strict terms. For the reasons stated above, the following; ORDER i. The petition is hereby allowed. ii. The petitioner is enlarged on bail subject to he executing a personal bond for a sum of Rs. 1,00,000/- with two local solvent sureties for the like sum to the satisfaction of the trial Court. iii. On all hearing dates the petitioner shall appear before the trial Court. iv. In no manner the petitioner shall tamper with the evidence and witnesses in any manner. v. The petitioner shall not hamper the investigation. vi. The petitioner shall mark his attendance before the respondent police on every Sunday between 09.00 AM and 05.00 PM. vii. The petitioner shall not involve in any offence of the like nature in future. viii. The petitioner shall not leave the jurisdiction of the trial Court without prior permission from it. ix. Violation of any one of the conditions will result in cancellation of this bail order.