Karnataka High Court
Sri. Syed Dadapeer vs The Union Of India on 12 August, 2022
Bench: M G Uma
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION No.3999/2022
BETWEEN:
SRI. SYED DADAPEER
S/O. SYED MUNNI
AGED 40 YEARS
RESIDING AT MUTTU MANYAMMA TEMPLE
TIPPU NAGAR, OLD MELEKOTE MAIN ROAD
TUMKUR, MELEKOTE - 572 102.
... PETITIONER
(BY SRI: SHAIK ISMAIL ZABIULLA, ADVOCATE)
AND:
THE UNION OF INDIA
BY NCB POLICE STATION
REPRESENTED BY SPP
HIGH COURT BUILDING
BANGALORE - 560 001.
... RESPONDENT
(BY SRI: SHANKAR .H.S., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
SPL.C.C.NO.1253/2021 REGISTERED AT RESPONDENT
NCB.F.NO.48/1/1/2021/BZU FOR THE ALLEGED OFFENCE
PUNISHABLE UNDER SECTION 20(B)(II)(C), 27, 27A, 28 AND 29 OF
NDPS ACT, PENDING ON THE FILE OF THE XXXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPL.JUDGE (NDPS)
BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 29.07.2022 COMING ON FOR
2
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioner-accused No.1 is before this Court seeking
grant of bail under Section 439 of Cr.P.C., in Spl.C.C.No.1253
of 2021 registered by the Intelligence Officer, Narcotics
Control Bureau in NCB.F.No.48/1/1/2021/BZU, for the
offences punishable under Section 8(c) read with Sections
20(b)(ii)(C), 27, 27A, 28 and 29 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'NDPS Act'), on
the basis of the first information lodged by informant -
Intelligence Officer, Narcotics Control Bureau (for short
'NCB').
2. Brief facts of the case are that, accused Nos.1 and
2 were found in possession of 22.5 kgs of ganja held in a
gunny bag and he was caught red handed by NCB Officials in
the presence of panchas. The accused was produced before
the learned Magistrate along with the contraband which was
seized. Thus the petitioner along with accused No.2 has
committed the offence punishable under Section 8(c) read
with Sections 20(b)(ii)(C), 27, 27A, 28 and 29 of the NDPS
Act.
3. Heard Sri Shaik Ismail Zabiulla, learned counsel
for the petitioner and Sri H S Shankar, learned High Court
Government Pleader for the respondent-State. Perused the
materials on record.
4. Learned counsel for the petitioner submitted that
the petitioner being accused No.1 had approached this Court
seeking grant of bail by filing Criminal Petition No.9063 of
2021. The said petition came to be dismissed vide order
dated 21.01.2022. While disposing of the said petition, it is
observed that except the complaint, the charge sheet
materials are not produced before this Court. But now, the
petitioner had produced the charge sheet, which itself goes to
show that the procedures as contemplated under law for
drawing the sample for the purpose of sending for FSL
examination, was not followed. It is stated that substance
found in 19 pouches were transferred to one gunny bag and
from the said gunny bag samples were drawn, which is in
gross violation of the procedure that is contemplated for
drawing the samples from each of the bags. The procedural
lapse will go to the root of the matter which entitles the
petitioner for grant of bail.
5. Learned counsel places reliance on the decision in
the case of Union of India Vs Bal Mukund and Others1, to
contend that when there are gross violation of the procedure
for drawing the sample, the accused is entitled for grant of
bail. Hence, he prays to allow the petition.
6. Per contra, learned High Court Government
Pleader opposing the petition submitted that similar petition
filed by the petitioner in Criminal Petition No.9063 of 2021
was considered on merits and it came to be dismissed on
21.01.2022. All the required documents were produced
before this Court and the same were considered. It is
specifically held that the petitioner is not entitled for grant of
bail in view of the seriousness of the offence. The said order
was not challenged by the petitioner.
7. Learned High Court Government Pleader further
submitted that as per para 6 of the complaint, the sample
from each of the bag were collected and tested by using the
Drug Detection Kit. It is specifically stated in the complaint
that all the bags were checked and found to have contained
(2009) 12 SCC 161
flowering and fruiting tops of the cannabis plant. A small
quantity of the substance from each of the bag were tested
using Drug Detection Kit, which gave positive result. Only
after this chemical analysis, the substance in different bags
were transferred to a gunny bag. Therefore, there is no
procedural irregularity to enable the petitioner to be enlarged
on bail. The petition was already considered on merits and
there are no merits in the contention raised by the petitioner.
Hence, he prays for dismissal of the petition.
8. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would
arise for my consideration is:
"Whether the petitioner is entitled
for grant of bail under Section 439 of
Cr.P.C.?"
My answer to the above point is in 'Negative' for the
following:
REASONS
9. It is not in dispute that the petitioner had
approached this Court by filing Criminal Petition No.9063 of
2021 seeking to release him on bail. The said petition came
to be dismissed on merits vide order dated 21.01.2022.
While passing the said order, the contention taken by the
prosecution that commercial quantity of contraband i.e., 22.5
kgs of ganja were recovered and after investigation, charge
sheet is also filed for the above said offences, was considered
and it was held that since the commercial quantity of
contraband was seized from the possession of the petitioner
who is arrayed as accused No.1, he is required to satisfy twin
conditions as mentioned under Section 37(1)(b)(ii) of NDPS
Act. A categorical finding is recorded that there are sufficient
reasonable ground to find the involvement of the accused for
the offences alleged and there are no grounds for believing
that the accused is not guilty of the said offences.
Accordingly, the petition came to be dismissed.
10. Now the contention of the petitioner is that even
though the charge sheet is filed by the Investigating Officer,
the procedure for drawing sample from the contraband was
not followed by the Investigating Officer. Since there is
procedural irregularity, the petitioner is entitled to be
enlarged on bail. In support of his contention, he placed
reliance on several decisions which are produced along with
the memo dated 15.06.2022. However, learned counsel for
the petitioner would concede that in those decisions, the
accused were given benefit of doubt after full-fledged trial.
11. But in the present case, the matter is still at the
stage of considering the petition for grant of bail. At this
stage, it is to be considered as to whether prima facie the
Investigating Officer has followed the procedure or not. The
materials on record disclose that the sample from each of the
bags were collected separately and tested by using Drug
Detection Kit. After getting the positive result that the
contraband are flowering or fruiting tops of the cannabis
plant, the sample was collected for the purpose of forwarding
the same for chemical examination. The procedure adopted
by the Investigating Officer as mentioned in the first
informant cannot be found fault with at this stage to conclude
that proper procedures are not followed by the Investigating
Officer. The decision that are relied on by the learned counsel
for the petitioner were rendered after full-fledged trial, where
the Court is expected to consider in detail about the
procedure that is followed in seizure and drawing of samples
from the contraband.
12. Learned counsel for the petitioner specifically
drawn my attention to the decision of Bal Mukund (supra) in
support of his contention that non-compliance of the
procedure as contemplated under law should result in
granting bail to the accused.
13. In Bal Mukund (supra), the Hon'ble Apex Court
had an occasion to consider the contention of the parties after
full fledged trial and to find out as to whether the accused is
to be convicted or not. The Court referring to the Standing
Instructions No.1 of 88, which lays down the procedure for
taking sample and also Section 55 of the Act in light of the
evidence of PW7 to hold that, the witness has not testified as
to which of the bags seized had been sent for analysis and in
which of the bags, the contraband seized were found. While
considering the judgment of acquittal passed by the Trial
Court, which was confirmed by the High Court, the Hon'ble
Apex Court held that the acquittal recorded was for good and
sufficient reasons and there is no merit in the appeal.
14. The Hon'ble Apex in the case of Superintendent,
Narcotics Control Bureau, Chennai Vs R Paulswamy2,
has categorically held that it would be too early to take into
account and judge the matter regarding non compliance with
the formalities during the bail stage, since recording of
findings under Section 37 of the Act was a sine-qua-non for
granting bail under the Act and held at para 6 as under:
"6. In the light of Section 37 of the Act no
accused can be released on bail when the
application is opposed by the Public Prosecutor
unless the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offences and that he is not likely to
commit any offence while on bail. It is
unfortunate that matters which could be
established only in offence regarding compliance
with Sections 52 and 57 have been pre-judged by
the learned Single Judge at the stage of
consideration for bail. The minimum which
learned Single Judge should have taken into
account was the factual presumption in law
position that official acts have been regularly
performed. Such presumption can be rebutted
only during evidence and not merely saying that
no document has been produced before the
AIR 2000 SC 3661
learned Single Judge during bail stage regarding
the compliance of the formalities mentioned in
those two sections."
15. This answers the contention raised by the learned
counsel for the petitioner seeking releasing the petitioner on
bail only on the ground of procedural lapses. Therefore, I do
not find any merit in the contention of the learned counsel for
the petitioner. Hence, I answer the above point in Negative
and proceed to pass the following:
ORDER
The Criminal Petition is dismissed.
Sd/-
JUDGE
SMJ & *bgn/-
