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Karnataka High Court · body

2019 DIGILAW 771 (KAR)

Saula Nayak v. State of Karnataka

2019-04-01

B.A.PATIL

body2019
JUDGMENT : B.A. PATIL, J. 1. The present petition has been filed by the petitioner/ accused No. 1 under Section 439 of Cr.P.C. to release him on bail in Crime No. 52/2018 (Spl. C.C. No. 860/2018) of Cantonment Police Station, Bengaluru, for the offence punishable under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred as NDPS Act for short). 2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State. 3. The gist of the complaint is that the railway police officials based on the complaint of theft were on patrolling duty, at that time Howrah to Yeshwanthpur train arrived at about 8.05 a.m. at plat form No. 4, they saw one person carrying two luggage bags in a suspicious manner along with other passengers. Immediately they apprehended and enquired and he was unable to give proper answer and got enquired about his address and came to know that his name is Saula Nayak son of Lakshma Nayak aged about 48 years resident of Orissa. They inspected the said two bags, each packet was containing 2 Kgs. of ganja and when they made enquiries with the accused, he told that the same has been grown at his native place and he has cut the leaves, dried and packed in his house and brought to Bengaluru for the purpose of sale. Immediately, in the presence of panch witnesses they seized the bags by drawing the mahazar. On the basis of the complaint, a case has been registered. 4. It is the submission of the learned counsel for the petitioner/accused that no procedure of NDPS Act has been complied. He further submitted that the provisions of Sections 42, 50, 52A of NDPS Act have not been followed. He further submitted that as per the standing instructions No. 1.88 the quantitative test as well as qualitative test has to be complied with within the stipulated time and in the instant case on hand already charge sheet has been filed, till then they have not produced the quantitative test report and it has been produced today. It is mandatory requirement of the standing instructions that it has to be complied. If it is not complied, then the petitioner/accused is entitled to be released on bail. It is mandatory requirement of the standing instructions that it has to be complied. If it is not complied, then the petitioner/accused is entitled to be released on bail. He further submitted by referring to the Certification of the Magistrate under Section 52A of the NDPS Act that already the samples have been taken and subsequently the packed samples with 50 grams have been certified, the said act of the Magistrate and the police is violative of Article 52A of NDPs Act. By relying upon the decision in the case of Union of India vs. Bal Mukund and Others, (2009) 12 SCC 161 submitted that the standing instructions if they are not followed the petitioner/accused is entitled to be released on bail. He is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner on bail. 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the provisions of Sections 42, 50, 52A of NDPS Act are not attracted to the present facts of the case on hand. She further submitted that already forensic test report has been reached to the court and all the articles are containing the ganja and the sample has given positive result. The petitioner/accused was carrying 24 Kgs. of ganja, which is more than the commercial quantity and as per Section 37 of the NDPS Act this Court cannot release the petitioner/accused on bail. She further submitted that the procedure has been followed while seizing the articles and no other grounds have been made out to release the petitioner/accused on bail. On these grounds she prayed to dismiss the petition. 6. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records. 7. The first and foremost submissions of the learned counsel for the petitioner/accused is that the provisions of Section 52A of the NDPS Act has not been followed and the drawing up of the seizure and certification of the said samples has not been done immediately by the Magistrate and the same has not been followed for the purpose of ascertaining the quality. Section 52A of the Act reads as under: 52A. Section 52A of the Act reads as under: 52A. Disposal of seized narcotic drugs and psychotropic substances - (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of: (a) certifying the correctness of the inventory so prepared. (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true. (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 8. On close reading of the said Section, sub-section has been incorporated in the said Act for the purpose of disposal of seized narcotic drugs and psychotropic substance. The reasons have also been assigned that the substances cannot be kept either in the police station or in any other places, there is likelihood of theft, substitution, constraint of proper storage. In that event the sample has taken only for the purpose of marking the said sample before the Court and the remaining quantity of the said substance is going to be destroyed. In that light, the provisions of Section 52A of the NDPS Act have been incorporated. It is not the case of first seizure and taking the sample. In that light if the said Section if it is seen though there is no violation only for the purpose of the identification of the said seized articles, 50 grams of samples have been taken and they have been seized and packed and thereafter the order of instruction is going to be obtained. In that light, there is no substance in the argument advanced by the learned counsel for the petitioner in this behalf. 9. I have closely read Section 50 of the NDPS Act. Section 50 of the Act reads as under: 50. Conditions under which search of persons shall be conducted - (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 10. On close reading of Section 50 of the Act when any Officer duly authorized under Section 42, if he wants to make a personal search, then under such circumstances the said provision is made applicable. In the instant case on hand, no personal search has been made in this behalf. The said articles have been seized from two bags which have been already present in the railway station and they have been taken out by the petitioner/accused and when they have searched the said bags, 24 Kgs. of ganja found and thereafter the same has been seized. Under such circumstances, following the said aspect, producing the petitioner/ accused before the Magistrate and thereafter making the personal search does not applied. In that light, the contention of the learned counsel for the petitioner is also not applicable to the present facts of the case on hand. 11. It is further submitted that the provisions of Section 42 have also not been followed. It is noticed from the facts of the case on hand that already the police were in search of theft of some article and at that time they noticed that the accused was carrying two bags. 11. It is further submitted that the provisions of Section 42 have also not been followed. It is noticed from the facts of the case on hand that already the police were in search of theft of some article and at that time they noticed that the accused was carrying two bags. Immediately they apprehended and seized the articles by drawing a mahazar and a case has been registered. Under the said facts and circumstances the said aspect is not applicable to the present facts of the case on hand. 12. I have gone through the submissions made by the learned counsel appearing for the parties and perused the records. 13. Though it is contended by the learned counsel for the petitioner/accused that the standing instructions of the Narcotic Bureau under instruction No. 1.88 has not been followed and the police ought to have received the qualitative and quantitative test of the articles and quantity of the seized articles and thereafter it may be proceeded. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and the proposition of law. In the said case the qualitative and quantitative test report are not produced. Without taken into consideration the Courts have come to the conclusion that the accused is entitled to be released on bail, but in the case on hand, the FSL report has been produced and the said report clearly indicates the fact that the articles sent are containing the ganja and the report is before this Court. Under such circumstances, I feel that now it cannot be held that no such report is there before the Court so as to release the petitioner/accused on bail. 14. As could be seen from the facts and circumstances, 24 Kgs. of ganja has been found and seized from the possession of the accused. The said quantity is more than the commercial quantity. In that light, as per Section 37 of the NDPS Act, the Court has to be 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. I am of the considered opinion that the said seized articles is ganja and there are reasonable ground to believe that he is guilty of the said offence. I am of the considered opinion that the said seized articles is ganja and there are reasonable ground to believe that he is guilty of the said offence. In that light also the petitioner/accused is not entitled to be released on bail. 15. Taking into consideration the above facts and circumstances, the petitioner has not made out any ground to release him on bail. Hence, the petition is dismissed.