Mr Fahim vs Union Of India
2021 Latest Caselaw 7102 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF DECEMBER, 2021

                           BEFORE

             THE HON'BLE MRS.JUSTICE M.G.UMA

                     CRL.P NO.8684/2021
BETWEEN

MR.FAHIM S/O MR.FAILZAL.K.,
AGED ABOUT 21 YEARS,
STUDENT OF FINAL YEAR B.E.
IN NITTE COLLEGE OF KARKALA, UDUPI,
R/AT HILL HOMES, NEAR PROVIDENCE COLLEGE,
FLORIKAN HILL ROAD, VENGERI, KOZHIKODE,
KERALA-673 010.
                                                  ...PETITIONER
(BY SRI.HASHMATH PASHA SENIOR COUNSEL FOR
    SRI.NASIR ALI, ADV.)

AND

UNION OF INDIA,
INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU,
BANGALORE ZONAL UNIT, OFFICE AT KATIGENAHALLI,
JAKKURU AERODROME, BANGALORE-560064.
                                              ....RESPONDENT
(BY SRI.MADHUKAR DESHPANDE, CGSC FOR RESPONDENT)

      THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ENLARGE THE PETITIONER ON BAIL IN NCB FILE
NO.48/1/12/2020/BZU, ON THE FILE OF THE RESPONDENT NCB,
BANGALORE FOR THE OFFENCES UNDER SECTIONS 22(c), 23(c), 27,
27(A), 28, 29, AND 32-B(d) OF NDPS ACT PUNISHABLE UNDER
SECTION 22(c), 23(c), 27, 27(A), 28, 29 AND 32-B(d) OF NDPS ACT
WHICH IS PENDING IN SPL.C.C.NO.509/2021 ON THE FILE OF THE
XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE FOR NDPS CASES, BANGALORE CITY.
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     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.12.2021 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY THROUGH VIDEO
CONFERENCE AT DHARWAD, THE COURT MADE THE FOLLOWING:

                           ORDER

Petitioner/accused No.1 in NCB file No.48/1/12/2020/BZU,

on the file of the respondent Narcotic Control Bureau (NCB),

Bengaluru for the offences punishable under Sections 22(c),

23(c), 27, 27(A), 28, 29, and 32-B(d) of the Narcotic Drugs and

Psychotropic Substances Act, (for short 'NDPS Act') punishable

under Sections 22(c), 23(c), 27, 27(A), 28, 29, and 32-B(d) of

NDPS Act pending in Spl.C.C.No.509/2021 on the file of the

XXXIII Additional City Civil and Sessions Judge and Special

Judge for NDPS Cases, Bangalore City is before this court under

Section 439 of Cr.P.C. seeking his enlargement on bail.

2. Heard Sri.Hashmath Pasha, learned Senior Counsel

for Sri.Nasir Ali for the petitioner and Sri.Madhukar Deshpande,

learned Central Government Standing Counsel for the

respondent-State.

3. Learned Senior Counsel for the petitioner submitted

that the petitioner is arrayed as accused No.1 and he had earlier

approached this court by filing Crl.P.No.7607/2020 seeking to

enlarge him on bail. The said petition was came to be dismissed

by this court vide order dated 31.07.2021. The petitioner was

apprehended on 24.09.2020 and since then he is in judicial

custody. Even though several grounds were raised in the earlier

petition and the same were considered by this court, the

procedural lapse committed by the investigating officer in seizing

the contraband and drawing sample in contravention with the

provisions of the NDPS Act was not highlighted before this court.

Learned Senior Counsel would contend that as per the seizure

panchanama produced as per Annexure-D, the contraband

weighing 142 grams of MDMA was seized on 30.07.2020 and the

sample was drawn at the time of seizure mahazar. The same

sample was forwarded for chemical analysis on 06.08.2020. The

investigating officer has not followed the procedure

contemplated under Section 52(3) of the NDPS Act. The

contraband that was seized was produced before the

jurisdictional Magistrate for the purpose of inventory, but no

sample was drawn at that time, as required under Section 52-

A(2)(c) of the NDPS Act. When there is serious lapse in the

matter of drawing sample and when there is clear contravention

of the statutory provisions, the accused is entitled to be

acquitted. At least at this stage he is entitled to be enlarged on

bail. The procedural lapse committed by the investigating officer

is not a curable defect and therefore, the accused is entitled to

take advantage of the same.

4. Learned Senior Counsel placed reliance on the

decision of the Hon'ble Apex Court in the case of Union of India

vs Mohanlal and Another1 to contend that, when the

procedure contemplated under law in the matter of seizing the

contraband and drawing sample are not followed, the same

would go to the root of the matter and it is not a fit case for

proceeding for trial. The fundamental defect in the investigation

will definitely enure to the benefit of the accused. Therefore, he

prays for enlarging the accused on bail.

5. Learned Senior Counsel further submitted that even

though it is the contention of the prosecution that the petitioner

used crypto currency and was dealing with it, that itself cannot

(2016) 3 SCC 379

be a ground to detain him in custody. Dealing in crypto currency

is not prohibited, but on the other hand, it is legalized. The

materials collected by the investigating officer even if it is to be

taken into consideration as it is, the petitioner had used only

Rs.35,000/- that too on 24.02.2020 i.e., about 5-6 months

earlier to the date of so called seizure of the contraband. There

is no link between purchase of crypto currency and purchase of

the contraband by the petitioner. A stray instance of using

crypto currency cannot be linked to the offence in question. The

prosecution is required to prove the chain of circumstances to

connect the petitioner to the use of crypto currency for purchase

of the contraband.

6. Learned Senior Counsel further submitted that even

though earlier petition filed by the petitioner on similar grounds

was considered by this court, filing of the subsequent petition is

not barred. He placed reliance on the decision of the Hon'ble

Apex Court in the case of Babu Singh and Others vs State of

U.P.2 to contend that, even if the earlier application for bail was

rejected, it need not necessarily preclude the accused from

(1978) 1 SCC 579

moving the court for similar relief once again. Therefore, the

learned Senior Counsel would submit that the petitioner is

entitled to be enlarged on bail.

7. Learned Senior Counsel also submitted that accused

No.2 in whose name the parcel was found is already enlarged on

bail by this court, the trial in the matter would take sufficiently

long period of time, the petitioner is a young student pursuing

his studies and his detention in custody would amount to pre-

trial punishment. Therefore, he is entitled to be enlarged on bail.

8. Learned CGSC opposing the submissions made by

the learned Senior Counsel submitted that all the grounds now

urged by the petitioner were already considered by this court in

Crl.P.No.7607/2020 and the said petition was came to be

dismissed on merits. No new grounds or materials are placed

before this court to enlarge the petitioner on bail. The seizure

mahazar was placed before this court at the time of considering

the earlier petition. Similarly, use of crypto currency by the

petitioner in dealing with the contraband was also highlighted

while considering the earlier petition. Only after considering all

these materials on record, this court dismissed the petition filed

by the petitioner. When no new grounds are made out, the

petitioner cannot maintain the successive petition for bail.

Learned counsel placed reliance on the decision of this court in

the case of Jayanth and Others vs The State of Karnataka

by Bannerugatta Police Station, Bengaluru3 and the decision

of the Hon'ble Apex Court in the case of Kalyan Chandra

Sarkar etc. vs Rajesh Ranjan alias Pappu Yadav and

Another4 to contend that the petition being the successive bail

petition is not maintainable.

9. Learned counsel further submitted that in Mohanlal

(supra) the Hon'ble Apex Court taken up the proceedings suo

moto, to consider the produce that is being followed for

destruction of the contraband seized in different states and

called for opinion from each of the stake holders from all the

States regarding the procedure that is being followed for seizure,

storage, disposal and destruction of the seized contraband and

also about the judicial supervision over the same. While

ILR 2019 KAR 2881

AIR 2005SC 921

disposing of the criminal appeal, the Hon'ble Apex Court directed

the States to issue appropriate directions for speedy action on

the administrative side and also on judicial side. There is

reference to Standing Order No.1 of 1989 issued by the Central

Government laying down the procedure that is being adopted by

the investigating officers and sought for ensuring adoption of

such procedure to ensure security from vulnerability of theft and

replacement of seized drugs. Learned counsel further submitted

that the Hon'ble Apex Court never barred drawing of samples at

the time of seizing of the contraband. On the other hand, on the

basis of the submission made by the learned Amicus Curiae it

was held that if the sample could not be drawn at the time of

seizure of the contraband, at least sample is to be drawn in the

presence of the Magistrate who is authorized to draw samples

and certify the seized contraband under the statute. In the

present case, the investigating officer has adopted the procedure

of drawing sample under the seizure mahazar at the time of

seizing the contraband. No prejudice whatsoever is highlighted

by the petitioner to challenge the said procedure adopted by the

investigating officer. The procedure for seizing or drawing

sample as contemplated in the Standing Order No.1 of 1989 is

strictly followed and moreover, seized contraband was produced

before the learned Magistrate for inventory and certification.

Under such circumstances, the petitioner cannot contend that

there is any lapse in seizing of the contraband or in drawing the

sample.

10. Learned counsel also placed reliance on the decision

of the Hon'ble Apex Court in the case of Supdt. Narcotics

Control Bureau, Chennai vs R.Paulsamy5 to contend that

non-compliance of the procedures could be considered only at

the time of trial and it is too early to consider those aspects of

the matter at the time of considering the bail application filed by

the petitioner, at the initial stage.

11. Learned counsel submits that since there are no

changed circumstances and the materials that are placed before

this court prima facie disclose that the procedure contemplated

is followed by the investigating officer, the petition filed by the

(2000) 9 SCC 549

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petitioner is not maintainable and the same is liable to be

dismissed.

12. Perused the materials on record. The point that

would arise for consideration of this Court is as follows:

"Whether the petitioner is entitled to grant of bail under Section 439 of Cr.P.C.?"

My answer to the above point is in the 'Negative' for the

following :

: REASONS :

13. The petitioner who is arrayed as accused No.1 in

NCB file No.48/1/12/2020/BZU, on the file of the respondent

Narcotic Control Bureau (NCB), Bengaluru for the offences

punishable under Sections 22(c), 23(c), 27, 27(A), 28, 29, and

32-B(d) of the NDPS Act punishable under Sections 22(c), 23(c),

27, 27(A), 28, 29, and 32-B(d) of NDPS Act had approached this

court in Crl.P.No.7607/2020 seeking to enlarge him on bail

under Section 439 of Cr.P.C. The said petition was considered on

merits and was came to be dismissed vide of dated 31.07.2021.

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Even while considering the said petition, seizure mahazar now

referred to by the learned Senior Counsel was placed before the

court and the same was taken into consideration in appreciating

the rival contentions of the parties.

14. It is the contention of the prosecution that a parcel

had arrived at foreign post office, Chamrajpet, Bengaluru which

was suspected to be containing contraband-MDMA. On the basis

of the credible information, the NCB officials after getting

necessary instructions from the Superintendent, visited the post

office and seized the parcel in the presence of two panchas. The

said parcel was booked from Netherlands, addressed to one

Karthik Pramod, resident Manipal of Udupi District i.e., accused

No.2. The address of the consignor was not found on the parcel,

no postage was paid for it. When the parcel was opened, there

were three plastic pouches and the same were containing purple

coloured tablets. The appearance of the substance was tallying

with the MDMA and it was weighing 142 grams. Sample was

drawn and the contraband was seized under the mahazar in the

presence of panchas.

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15. In Mohanlal (supra), the Hon'ble Apex Court

considered standing order No.1 of 1989 dated 13.06.1989, which

prescribes the procedure to be followed for seizure, sampling

safe keeping and disposal of the seized drugs, narcotic and

psychotropic substances, which is followed throughout the

country. Ministry of Finance, Department of Revenue,

Government of India, in terms of the Circular dated 23.02.2011

directed all the State Governments to follow the procedure

prescribed in complying the order strictly. But however, the

Hon'ble Apex Court suspected as to whether such procedure for

seizing, sampling, safe keeping and disposal of the drugs is

actually being followed persistently. Pilferage of the contraband

and recirculation of the drugs in the market which is considered

as major hazard and appointed an Amicus Curiae with a view to

make a realistic review of the procedure for search, disposal or

destruction of the narcotics and the remedial steps that need to

be taken to plug the loopholes, if any. The Hon'ble Apex Court

called for the reports from all the stake holders from each of the

States and considered the same in the light of the reports

submitted by the Amicus Curiae and found that no proper

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storage facilities are available in most of the States. It is also

found that there was no certainty as to who is authorized to

apply to the court for destroying the seized contraband and

whether there has been any failure or dereliction in making such

application.

16. With regard to seizure, sampling, the Hon'ble Apex

Court noticed that, as per Section 52-A(2)(c) of the NDPS Act,

the Central Government is required to prescribe by a notification

the procedure to be followed for seizure, storage, and disposal of

the drugs and psychotropic substances. In pursuance of the

same, Standing Order No.1 of 1989 which prescribes the

procedure to be followed while conducting seizure of the

contraband was issued. There is reference of two subsequent

standing orders one dated 10.05.2007 and the other dated

16.01.2015 dealing with disposal and destruction of seized

contraband and do not alter or add to the earlier standing order

that prescribes the procedure for conducting seizures. The

Hon'ble Apex Court specifically considered para 2.2 of the

Standing Order No.1 of 1989 which prescribes drawing samples

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from the seized contraband on the spot at the time of recovery

itself. But the court considered that most of the States have

claimed that no samples are being drawn at the time of seizure.

It was noticed that it is only Directorate of Revenue Intelligence

is the agency which claims that samples are drawn at the time of

seizure, while Narcotic Control Bureau asserts that it does not do

so. Therefore, it was opined that there is no uniform practice or

procedure that is being followed by the States or the Central

agencies in the matter of drawing samples. It is held that this is

the area that needs to be suitably addressed in the light of the

statutory provisions which ought to be strictly observed given

the seriousness of the offences under the Act and the

punishment prescribed by law in case of the same are proved.

Therefore, the said issue was dealt in detail in an attempt to

remove the confusion that prevails regarding the true position as

regards drawing of samples. The Hon'ble Apex Court referred to

Section 52-A(2)(c) which prescribes that seizure of the

contraband is to be forwarded either to the officer-in-charge of

the nearest police station or to the officer empowered under

Section 53 who shall prepare an inventory as stipulated in the

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said provision and make an application to the Magistrate for the

purpose of (a) certifying the correctness of the inventory, (b)

certifying photographs of such drugs or substances taken before

the Magistrate as true, and (c) to draw representative samples in

the presence of the Magistrate and certifying the correctness of

the list of samples drawn. Therefore, as per Section 52-A(3) the

process of drawing up samples has to be in the presence and

under the supervision of the Magistrate and the entire exercise is

to be certified by him to be correct.

17. After observing the position of law, the Hon'ble Apex

Court considered the question of drawing of samples at the time

of seizure which, more often than not takes place in the absence

of the Magistrate. This is so especially when according to Section

52-A(4) of the Act, samples drawn and certified by the

Magistrate in compliance with sub-section(2) and (3) of Section

52-A to constitute primary evidence for the purpose of the trial.

It is specifically observed and stated that, suffice it to say that

there is no provision in the Act that mandates taking of samples

at the time of seizure. However, the Hon'ble Apex Court held

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that a conflict between the statutory provision governing taking

of samples and the Standing Order issued by the Central

Government is evident when the two are placed in juxtaposition.

There is no gainsaid that such a conflict shall have to be resolved

in favour of the statute on the first principles of interpretation

but the continuance of the statutory notification in its present

form is bound to create confusion in the minds of the authorities

concerned instead of helping them in the discharge of their

duties. Therefore, the Hon'ble Apex Court directed the Central

Government to re-examine the matter and take suitable steps in

the above direction. It is pertinent to note that learned Amicus

Curiae appointed in the said case argued that if an amendment

of the Act stipulating that the samples be taken at the time of

seizure is not possible, the least that ought to be done is to

make it obligatory for the officer conducting the seizure to apply

to the Magistrate for drawing of samples and certification etc.

without any loss of time. In the light of this, the Hon'ble Apex

Court held that the officer conducting the seizure is also obliged

to report the act of seizure and the making of the application to

the superior officer in writing so that there is a certain amount of

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accountability in the entire exercise, which is being neglected for

variety of reasons. It is also held that seizure of the contraband

and the sampling and certification cannot be left to the whims of

the officers concerned. With regard to time-frame within which

the officer has to act in accordance with Section 52-A of the Act,

the Hon'ble Apex Court thought it fit not to prescribe a time-

frame, but to suggest that an application for sampling and

certification ought to be made without undue delay. However,

the court summed up by saying that the sampling shall be done

under the supervision of the Magistrate as discussed in paras 15

to 19 of its judgment. The Hon'ble Apex Court specifically

directed the Central Government to re-examine the matter and

take suitable steps in issuing the directions to the investigating

officer in the light of the conflict between Standing Order No.1 of

1989 and the procedure contemplated under the statute. This

being the position of law, I do not find any merit in the

contention of the learned Senior Counsel to hold that since the

sample was drawn at the spot under the seizure mahazar, the

procedure adopted by the investigating officer gets vitiated and

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the entire seizure of the contraband and also the sample, is to

be ignored.

18. In R.Paulsamy (supra), the Hon'ble Apex Court

categorically held that it would amount to pre-judging the case

made out by the prosecution regarding compliance with Sections

52 and 57 of the NDPS Act at the time of considering the bail

application. The Hon'ble Apex Court reminded the presumption

of law that all official acts are presumed to have been performed

regularly. Such presumption can be rebutted only during trial

and not merely saying that no document has been produced

before the court at the time of considering the bail application.

19. The learned Senior Council contended that dealing

with crypto currency is not prohibited and therefore, the

petitioner cannot be linked with such dealing to the offence in

question is considered in the light of the facts and circumstances

of the case. Even though dealing with crypto currency is not

completely barred, it is the contention of the prosecution that

the petitioner is dealing with crypto currency for the purpose of

purchasing the contraband and such dealings would be difficult

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to track. To contend that the petitioner was dealing with crypto

currency for various dealings, the prosecution is relying on

voluminous documents, it has to be proved during trial. Suffice it

to say at this stage that prima facie materials are placed to

connect the petitioner to the offence in question and it cannot be

concluded at this stage that the petitioner is falsely implicated in

the matter without any basis.

20. While passing the order on the previous petition filed

by the petitioner, all these materials have been placed before

this court and on consideration of the same, it was opined that

the materials that are collected by the investigating officer prima

facie sufficient to connect the petitioner to the offence in

question and to contend that seized contraband was of

commercial quantity of MDMA in the name of accused No.2

through Darkweb using the user name as 'FAHIMMESCO' through

the mail-ID of the petitioner, for the purpose of retail distribution

amongst others. It was also opined that in view of the materials

that are placed before the court, it cannot be held that there are

reasonable grounds for believing that the petitioner is not guilty

of the offence alleged which is sine-qua-non for grant of bail to

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the accused under the Act. Even though learned Senior Counsel

contended that there are serious procedural lapses in seizing the

sample and preserving the same, the same cannot be accepted

at this stage.

21. Even though filing and maintaining the successive

bail petition is not completely barred, it is the settled proposition

of law that the petitioner has to make out additional grounds

which were not available at the time of considering the first bail

petition or there should be sufficient materials which enables the

court to form a different opinion than the one which was drawn

at the first instance. But in the present case, none of these

circumstances, could be found to consider the successive bail

petition filed by the petitioner. Therefore, I am of the opinion

that the petitioner is not entitled for bail. Hence, I answer the

above point in the "negative" and proceed to pass the following:

ORDER

The criminal petition is dismissed.

Sd/-

JUDGE MBS/-