Bombay High Court
Felix John Baptist Machado vs Union Of India And Anr on 4 March, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:10856
28-BA2510-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 2510 OF 2023
Felix John Baptist Machado ...Applicant
Versus
1. Union of India
2. State of Maharashtra ...Respondents
Mr. Taraq Sayed, a/w Ms. Ashwini Achari, for the Applicant.
Mr. Amit Munde, Special PP, for the UOI/Respondent No.1.
Mr. Shailesh Ghag, APP for the State/Respondent No.2.
CORAM: N. J. JAMADAR, J.
DATED: 4th MARCH, 2024
ORDER:
-
1. Heard the learned Counsel for the parties.
2. The applicant, who is arraigned in DRI/MZU/B/INT-
102/2022 registered with Directorate of Revenue Intelligence,
Mumbai Zonal Unit, Mumbai, for the offences punishable under
Sections 21(b)(ii)(C), 23(c), 28 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 ("the NDPS Act") has
preferred this application to enlarge him on bail.
3. The applicant is alleged to be a Director of M/s. Allied
Shipping and Logistics Private Limited and engaged in day to
day management of the affairs of the said company.
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4. On 15th October, 2022 a specific intelligence was received
that some narcotic substance covered under the provisions of
the NDPS Act, 1985 had arrived at Mumbai Airport in two
consignments vide two House Air Way Bills (HAWB) bearing
Nos.6746476656 and 1188996491 issued by the courier DHL,
and it would be attempted to be smuggled into India through
courier mode. Thereupon, necessary authorization was
obtained. A team accompanied by the panch witnesses visited
the office of DHL and was furnished photocopies of two bills of
Entry Nos.2885785 and 2876852. Pursuant to information, the
raiding party located two wooden pallet boxes bearing House
Way Bill Nos.6746476656 and 1188996491. Wooden pallet box
HAWB 6746476656 contained 83 aluminum coloured plastic
packets. Upon inspection, it was found that there were two
inner packets. The innermost packet was found to contain a
light green coloured substance in lump form. The substance
was tested with field testing kit. The test answered positive for
presence of ganja, a narcotic substance. There were in all 83
packets in the first box HAWB 6746476656. The packets were
found to be packed similarly and contained similar light green
substance which upon examination was found to be ganja.
28-BA2510-2023.DOC
Another pallet box contained 108 packets containing same
substance. The contraband articles were seized.
5. As the name of the applicant was pasted on the box as an
importer, notice was issued to the applicant. Since the
investigation revealed the complicity of the applicant, as the
applicant had imported 87.37 kg. contraband article, the
applicant came to be arrested on 17th October, 2022.
6. Mr. Sayed, the learned Counsel for the applicant, initially
made an endeavour to urge that the applicant cannot be said to
have been found in conscious possession of the contraband
article. Without controverting the fact that the consignment
was imported under IEC No.AAVCA4131A in the name of M/s.
Allied Shipping and Logistics Pvt. Ltd., Mr. Sayed attempted to
persuade the Court to hold that the material on record indicates
that the applicant had lent IEC number to co-accused Hemant
Bangera for the purpose of import in consideration of
Rs.5,000/- per import. Attention of the Court was invited to the
statements of the applicant and Hemant Bangera recorded
under Section 67 of the NDPS Act, 1985.
7. Subsequently, Mr. Sayed submitted that the search and
seizure stands vitiated on account of flagrant violation of the
procedure prescribed for collection of the samples. It was
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submitted that the panchnama would indicate that the raiding
party had mixed the contents of the packets and, thereafter, the
samples were collected. Therefore, according to Mr. Sayed, the
search and seizure stands vitiated as it cannot be said that the
entire substance allegedly recovered constituted contraband
article.
8. Mr. Munde, the learned Special PP, resisted the
submission on behalf of the applicant, on both the counts. It
was urged that a clear and watertight case of import of
contraband article has been made out. Having regard to the
mode of import and the quantity imported, there is no ground to
urge that the applicant is not guilty of the offences punishable
under NDPS Act, 1985. Mr. Munde submitted that the alleged
defect in sampling is non-existent. Even otherwise, that would
be a matter for adjudication at the trial. Therefore, at this
stage, the applicant cannot draw any mileage from the said
defect.
9. I have carefully considered the material on record and
submissions canvassed across the bar. There is indeed a strong
prima facie material which indicates that the consignment was
imported by M/s. Allied Shipping and Logistics Pvt. Ltd. The
name of the applicant was specifically mentioned as the
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importer alongwith M/s. Allied Shipping. It would be simply
impermissible, at this stage, to accede to the submission of Mr.
Sayed that the applicant had merely lent IEC number in
consideration of Rs.5,000/- per import. Reliance on the
statement of the applicant recorded under Section 67 of NDPS
Act, 1985, at this juncture, would be a self-serving exercise.
10. There is a statement of an employee, who was in-charge of
Accounts Department of M/s. Allied Shipping and Logistics Pvt.
Ltd., which throws light on the role of the applicant in importing
the consignment in question. At any rate, the contention
sought to be raised by the applicant is in the nature of a defence
which the applicant would be required to bolster up at the trial
to dislodge the presumptions which may be attracted.
Therefore, I am not impelled to accede to the submission of Mr.
Sayed.
11. On the aspect of the alleged defect in sampling, Mr. Sayed
would urge that the search and seizure panchnama indicates
that the contents of only one packet were tested with the field
testing kit and the contents in the rest of the packets were
simply examined to draw an inference that those packets also
contained the contraband substance. Mr. Sayed would urge
that it was incumbent upon the authorized officer, who
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conducted the search, to test the contents of each of the packets
and collect sample from each packets. Mixing the contents of all
the packets denuded the sample the representative character. To
buttress this submission, Mr. Sayed invited attention of the
Court to a recent judgment delivered by this Court in Venktesh
Shiva Permal vs. State of Maharashtra1.
12. In the said case, I had an occasion to analysise the
provisions of Standing Order 1 of 1989 and the judgments of the
Supreme Court in the cases of Union of India vs. Bal Mukund2
and Sumit Tomar vs. State of Punjab3 and Noor Aga vs. State of
Punjab4. It was observed as under:
"28. What should be the approach of the Court ? There can
be no duality of opinion about the proposition that having
regard to the stringent provisions against grant of bail and
the severity of the punishment which the offences under
NDPS Act, 1985 entail, the Court must insist scrupulous
compliance of the Standing Instruction/Order. However, the
nature of infraction is required to be kept in view and also
the element of prejudice likely to have caused to the ac-
cused. Undoubtedly the officers are instructed that one
sample from each package/container in case of seizure of
more than one package/container be collected. However,
the directive is preceded by the word "normally" and it is
"advisable" These words, ordinarily, cannot be construed as
peremptory. Since the Standing Instruction/Order use the
qualifying words like "normally" and "advisable", in my con-
sidered view, the correct approach would be to consider the
impact of infraction of the directives as to the sampling
alongwith other facts and circumstances of the case.
Laying down a too broad proposition that the moment
the investigating agency is found to have mixed the contents
12024 SCC Online Bom 251.
2Cri.Appeal No.1397/2007 dt.31/3/2009.
3(2013) 1 SCC 395.
4(2008) 16 SCC 417.
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of the containers and thereafter collected the sample, the
entire seizure is vitiated would be taking an extreme view of
the matter.
29. At the same time, the cases of non-compliance with
the Standing Instructions/Order and search and sampling
in flagrant violation of such Instructions, cannot be brushed
aside as mere irregularities. There ought to be material to
show that the Instructions have been substantially complied
with.
30. The decision of the Supreme Court in the case of Noor
Aga V/s. State of Punjab and Anr. illuminates the path. In
the said case, the Supreme Court considered the aspect
of contravention of the Standing Order. Adverting to the
earlier decisions in the case of South Central Railway V/s.
G. Ratnam ((2007) 8 SCC 212), and the clarifica -
tion thereof by a subsequent decision in the case of Moni
Shankar V/s. Union of India ((2008) 3 SCC 484) , the
Supreme Court enunciated in clear and unambiguous terms
that the guidelines issued should not only be substantially
complied, but also in a case involving penal proceedings,
vis-a-vis a departmental proceeding, rigours of such guide-
lines may be insisted upon."
13. Reverting to the facts of the case, it is pertinent to note
that the substance having been found to be ganja, the Clauses
2.4 and 2.5 of the Standing Order 1 of 1989 become relevant.
They read as under:
"2.4 In the case of seizure of a single package/container,
one sample in duplicate shall be drawn. Normally, it is ad-
visable to draw one sample (in duplicate) from each pack-
age/container in case of seizure of more than one package /
container.
2.5 However, when the packages/container seized together
are of identical size and weight, bearing identical markings,
and the contents of each package given identical results on
colour test by the drug identification kit, conclusively indi-
cating that the packages are identical in all respects, the
packages/containers may be carefully bunched in lots of ten
packages/containers except in the case of ganja and
hashish (charas), where it may be bunched in lots of 40
such packages/containers. For each such lot of packages/
containers, one sample (in duplicate) may be drawn."
28-BA2510-2023.DOC
14. A conjoint reading of the aforesaid clauses would indicate
that where a number of packages/containers are seized
together, subject to the satisfaction that the packages are
identical in all respect, packages/containers may be bunched in
lots of specified packages/containers and for each lot of
packages/containers one sample (in duplicate) may be drawn.
Aforesaid clauses thus take care of the cases where a number of
packages/containers are seized at the same time, like the case
at hand.
15. In the aforesaid backdrop, if the contents of the seizure
panchanam are perused, it becomes prima facie evident that the
collection of the samples cannot be said to be in breach of the
aforesaid standing order. The panchnama specifically records
that the substance found in the first packet was tested with
field testing kit. The authorized officer had examined the rest of
the packets. Rest of the packets were found to be similarly
packed like packet No.1. All said packets were found to
contain similar light green coloured substance. The aforesaid
narration in the panchnama, prima facie, indicates that the
authorized officer had recorded the satisfaction that the packets
were identical in all respects and, thereafter, samples were
collected from each lot of the packets bunched together.
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16. Prima faice, there does not appear to be such infirmity in
the sampling as to vitiate the search and seizure. Resultantly,
the second ground urged by Mr. Sayed also falls through.
17. The conspectus of aforesaid consideration is that the
interdict contained in Section 37(1)(b)(ii) operates with full force
and the Court may not be justified in drawing an inference that
the applicant is not guilty of the offences for which he has been
arraigned. Thus, the applicant does not deserve to be released
on bail.
18. Hence, the following order.
:ORDER:
(i) Application stands rejected.
(ii) By way of abundant caution, it is clarified that the
observations made hereinabove are confined for the purpose of
determination of the entitlement for bail and they may not be
construed as an expression of opinion on the guilt or otherwise
of the applicant and the trial Court shall not be influenced by
any of the observations made hereinabove.
[N. J. JAMADAR, J.]
