ORDER : The present petition is filed by the accused under Section 439 of Cr.P.C. to release him on bail in DRI/BZU/SIV/ENQ30/INTNIL/2019 registered by the Directorate of Revenue Intelligence, Bengaluru, for the offences punishable under Sections 8, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 2. I have heard the arguments of the learned counsel Sri Dilraj Jude Rohit Sequiera through virtual Court and Sri Madhukar Deshpande, learned Standing Counsel for the respondent. 3. Before adverting to the grounds urged by the learned counsel for the petitioner and the respondent, it is just and necessary to look into the brief facts of the case of the prosecution. On 14.9.2019 the respondent received a credible information that the accused is attempting to smuggle narcotic substance by concealing in his check in luggage while he was travelling by Kempegowda International Airport. Accused was travelling by Indigo flight 6E5334 from Bengaluru to Doha via Mumbai and he has given his check in luggage. The officers of DRI intercepted the said passenger in the Airport and when they checked the checkin luggage, they found 3000 grams of hashish. After following the procedure, the said substance was seized and a case has been registered. 4. The main grounds urged by the learned counsel for the petitioner are that baseless and cooked up allegations have been made as against the petitioner contending that he was found in possession of 3000 grams of hashish. But actually the petitioner was not in possession of the said article. It is his further contention that the petitioner is a permanent resident of the address shown in the cause title and he is not having any criminal antecedents. It is his further submission that when the statement of the accused was recorded, he clearly stated that he does not know the contents of the said material that itself goes to show that he was not having any intention or knowledge. It is his further contention that the quantitative and qualitative test has not been conducted as per guideline No.1.18 of the Narcotic Control Bureau. It is further submitted that as per guidelines, the quantitative and qualitative analysis test has to be obtained within 30 days from the date of receipt of the sample. If the said procedure is not completed, then under such circumstances, the accused is entitled to be released on bail. It is further submitted that as per guidelines, the quantitative and qualitative analysis test has to be obtained within 30 days from the date of receipt of the sample. If the said procedure is not completed, then under such circumstances, the accused is entitled to be released on bail. It is his further submission that the object and quantitative analysis is to be found out as to whether the accused was in possession of the commercial quantity or smaller or less than the commercial quantity so as to know as to what punishment he is entitled to. In the absence of any such material, the benefit has to be given to the accused. In order to substantiate his arguments, he has relied upon the decision of the Hon’ble Apex Court in the case of Union of India Vs. Bal Mukund & Others, reported in (2009)12 SCC 161 . It is his further contention that this Court has also taken a similar view by relying upon the said decision of the Hon’ble Apex Court and hence, the same benefit may be extended to the petitioner accused. In that light, he has relied upon the decision of this Court in the case of Chukwunanso Ajmamekwe Vs. State of Karnataka in Criminal Petition No.8110/2018 & Connected matter, disposed of on 25.2.2019. He also relied upon yet another decision of coordinate Bench of this Court in the case of Anuj Kumar Vs. State by NCB, Bangalore in Criminal Petition No.6608/2019, disposed of on 11.11.2019. He further submitted that test report issued by the Assistant Chemical Examiner Custom House Laboratory, Chennai, indicates that the quantitative analysis of the sample could not be carried out for want of facilities that itself goes to show that the quantitative test has not been properly conducted as contemplated under the guidelines. In that light, the accused is entitled to be released on bail. He further submitted that since from the date of arrest the petitioner accused is in custody and his rights and liberty have been affected. The petitioner is ready to abide by any conditions imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and enlarge the petitioner on bail. 5. He further submitted that since from the date of arrest the petitioner accused is in custody and his rights and liberty have been affected. The petitioner is ready to abide by any conditions imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and enlarge the petitioner on bail. 5. Per contra, Sri Madhukar Deshpande, learned Standing Counsel for the respondent by filing his detailed statement of objections submitted that the Department is pursuing further investigation and at this juncture if the petitioneraccused is granted bail, he may scuttle the investigation and tamper with the prosecution evidence. It is his further submission that as per Section 37 of the NDPS Act, there is a presumption. Under such circumstance, the accused has to establish with a negative test by relying upon the charge sheet material. At this juncture, without holding the trial, it cannot be held that there is no material as against the petitioner accused. He further submitted that though there are guidelines issued by the NCB, the respondent still had an opportunity to prove the quantity of the seized article at the time of trial and as such, an opportunity requires to be granted to substantiate their case. It is further submitted that the prosecution would prove its case and it is left to the discretion of the prosecution. At this juncture, consideration of the aspect and releasing the petitioner on bail is not justified. He further submitted that actually the said article was seized in the presence of the panch witnesses after detecting the contraband article hashish to the extent of 3000 grams by testing the same with the help of Field Drug Detection Kit (for short ‘FDDK’). He further submitted that the preliminary test conducted through FDDK has given a positive result to contend that it is hashish and it is of a commercial quantity. When the facts themselves are clear, the petitioner is not entitled to be released on bail only on the ground that the quantitative and qualitative test has not been conducted and no analysis report has been produced before the Court. It is his further submission that in the case of Ireneomoibe @ Iryan Vs. When the facts themselves are clear, the petitioner is not entitled to be released on bail only on the ground that the quantitative and qualitative test has not been conducted and no analysis report has been produced before the Court. It is his further submission that in the case of Ireneomoibe @ Iryan Vs. Union of India in Criminal Petition No.4579/2019 disposed of on 29.8.2019, the coordinate Bench of this Court has held that when a prima facie material is available, it cannot be said that merely because quantitative analysis report has not been received, in any manner it does not take away the test conducted by the officials by using the FDDK tentatively and the quantity of Cocaine to the extent of 400 grams, found in possession of the accused. In that light, the said petition came to be rejected. Similarly in the present case, the FDDK test has been conducted and in the presence of the witnesses the said article has been seized which itself substantiates the fact that the accused was involved in transporting contraband article which is of more than commercial quantity. In that light, he submits that there is a prima facie case as against the petitioner accused. The learned counsel also raised a preliminary objection that he may be given physical hearing instead of virtual hearing as it is a serious matter and the entire material has to be scrupulously scrutinized and analyzed. However subsequently he conceded for virtual hearing. On these grounds, he prayed to dismiss the petition. 6. Though the learned counsel for the petitioner strenuously contended that the procedure followed by the respondent is not proper and correct and qualitative and qualitative test has not been conducted as per the guideline No.1.18 of NCB, the records would indicate that at the time of seizing the article, the respondent has taken into consideration the guidelines and in the first instance, the said article has been tested with the help of FDDK and also a mahazar has been drawn to that effect. In the mahazar it has been categorically mentioned about dark brown solid solidified block with pungent odeur hashish weighing 3000 grams and the same was attempted to be exported to Doha. 7. As per the Notification specifying the small quantity and commercial quantity of the articles, at Sl.No.23, it has been mentioned that the commercial quantity is 1 kg. In the mahazar it has been categorically mentioned about dark brown solid solidified block with pungent odeur hashish weighing 3000 grams and the same was attempted to be exported to Doha. 7. As per the Notification specifying the small quantity and commercial quantity of the articles, at Sl.No.23, it has been mentioned that the commercial quantity is 1 kg. Actually the present substance, i.e., the seized hashish was weighing 3 kgs. that itself satisfies the quantitative test as prescribed by guideline No.1.18. For the purpose of brevity I extract the said guideline which reads as under: “1.18 Expeditious Test Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings of N.D.P.S. Act, 1985. In many cases the court may refuse to extend Police/Judicial remand beyond 15 days for absence of a chemical report. Accordingly, it is essential that the analysis is completed and the report dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis report dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis be longer time. The results of qualitative test should be dispatched to the officer from whom the samples to received within the aforesaid time limit on the original copy of the Test Memo so that court proceedings can be immediately. In the next 15 days the results of qualitative test (purity of the drug) should also be indicated the duplicate test memo and sent to the officer from who the samples were received.” 8. In the case of Bal Mukund (cited supra), at paragraph 36, the Hon’ble Apex Court has observed as under: “36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.” 9. I have carefully and cautiously gone through the aforesaid decision. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.” 9. I have carefully and cautiously gone through the aforesaid decision. While dealing with the said aspect, the Court has taken a serious view that unless test is done and report is produced, it cannot be said that the article seized from the possession of the accused is of a commercial quantity. In that light, it has been observed that it is the duty of Investigating Officer to send one sample for qualitative analysis and another for quantitative analysis. If the quantitative analysis report is not secured within the prescribed period or at least before filing of the charge sheet, the Court has to examine the contents of the charge sheet for granting or refusing the bail. The said view was taken when the matter came up for final hearing. 10. Section 37 of the NDPS Act, says that twin conditions have to be adhered to by the Court while dealing with the parameters of Section 439 of Cr.P.C. If the object of the NDPS Act is looked into, it is enacted to make stringent provisions for control, regulation and operation relating to NDPS Act. The said enactment is a special enactment and in the said Section it states that a non-obstante clause and it is negative scope limiting the scope and applicability of the provisions of Code of Criminal Procedure for considering the bail application. When that being the case, the Court while considering the bail application has to keep in mind the object behind the enactment especially Section 37 of the NDPS Act. For the purpose of brevity I quote Section 37 of the NDPS Act. “37. When that being the case, the Court while considering the bail application has to keep in mind the object behind the enactment especially Section 37 of the NDPS Act. For the purpose of brevity I quote Section 37 of the NDPS Act. “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 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 subsection (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.” 11. On close reading of the aforesaid Section, it makes clear that provisions of Section 37(b)(i) and (ii) are the specific limitations prescribed under the provisions and it specifically says that the Public Prosecutor has to be given an opportunity to oppose the application and the Court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail. 12. On perusal of the records, the check in luggage was taken back from the Airport Authorities and in the presence of the petitioner accused it was opened. After removal of the said article in the presence of the panch witnesses the same was weighed and it was weighing 3000 grams. When the same was tested with the help of FDDK, the said article was given positive result as hashish. When the said article has been ascertained that it is hashish and as per Notification, it was more than the commercial quantity which was in the possession of the petitioner. When the same was tested with the help of FDDK, the said article was given positive result as hashish. When the said article has been ascertained that it is hashish and as per Notification, it was more than the commercial quantity which was in the possession of the petitioner. Prima facie it substantiates the fact the accused was in possession of hashish more than the commercial quantity and it is a contraband article. In that light, with due respect the ratio laid down in the case of Bal Mukund (cited supra), is not applicable to the present case. 13. At this juncture, it is worth to refer to a decision of the Hon’ble Apex court in the case of Superintendent, Narcotics Controls 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 born in mind Respondent and his wife prosecuted under section 8 C, 21, 27A, 28 and 29 of the NDPS Act, and under section 193 and 1120B of Penal Code. High court granting bail on the ground of noncompliance with section 52 and 57 of the Act: Having regard to the provisions of section 37 of the Act: Held, it would be too early to take into account and judge, the matter regarding noncompliance with the formalities during the bail stage. Since recording of findings under section 37 of the act was a sinequa 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.” 14. In the background of the aforesaid decision, if the case on hand is looked into, the mahazar drawn in the presence of the witnesses shows that quantity of contraband article seized from the possession was of more than the commercial quantity. In that light, the quantitative test has been done and the records would go to show that the test conducted with the help of FDDK has also given a positive result to show that it is hashish. In that light, the quantitative test has been done and the records would go to show that the test conducted with the help of FDDK has also given a positive result to show that it is hashish. In that light, if the facts and circumstances are looked into, prima facie it would indicate that there is material as against the petitioner accused. Hence, I do not find any strong reasons to accept the contentions of the learned counsel for the petitioner to enlarge the petitioner on bail. In the light of the discussion held by me above, I am of the considered opinion that the petitioner accused has not made out any case so as to release him on bail. Hence, petition is liable to be dismissed and accordingly the same stands dismissed.