Mr Zakir Hussain vs State By
2022 Latest Caselaw 10832 Kant

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                                                              R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF JULY, 2022

                          BEFORE

       THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

        CRIMINAL PETITION NO.2612 OF 2022

BETWEEN:

MR. ZAKIR HUSSAIN,
S/O. SHRI. MOHAMMED HUSSAIN,
AGED ABOUT 34 YEARS,
RESIDING AT UPPARPALYA,
TURIGERE POST, ADIYAR HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 101.                  ...   PETITIONER

[BY SRI. DHANANJAY JOSHI, SENIOR ADVOCATE
  FOR SRI. RUDRABHUSHAN C.B., ADVOCATE]

AND:

STATE BY
INTELLIGENCE OFFICER,
NARCOTICS CONTROL BUREAU,
BANGALORE UNIT,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.                        ... RESPONDENT

[BY SRI. MADHUKAR M. DESHPANDE, SENIOR C.G.S.C.]

                               ***
      THIS CRIMINAL PETITION IS FILED UNDER 439 OF CR.P.C.,
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
NCB.F.NO.48/1/05/2021/BZU, REGISTERED BY N.C.B. POLICE,
BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
8(c) READ WITH SECTION 20(b)(ii)(C), 23, 27A, 28 AND 29 OF
THE NDPS ACT 1985 AND THE LEARNED XXXIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS),
BENGALURU HAS REJECTED THE BAIL PETITION ON 25.01.2022 IN
CRL.MISC.NO.139/2022.
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     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.06.2022 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:

                          ORDER

This is a successive bail petition filed by accused

No.2 praying to enlarge him on bail in relation to a case

registered by respondent/NCB in NCB F.No.48/1/5/2021/

BZU for offences punishable under Sections 8(c) read

with Section 20(b)(ii)(C), 23, 27(A), 28 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

[hereinafter referred to as 'NDPS Act' for short].

2. The petitioner had approached this Court in

Criminal Petition No.3921/2021 seeking similar prayer

and the said petition was dismissed by an Order dated

14.07.2021.

3. Heard the learned senior counsel for petitioner

and the learned counsel for respondent.

4. The learned senior counsel submitted that,

this Court dismissed the earlier petition when the

investigation was still pending and now the investigation

is over and the entire material is available on record

including the FSL Report and therefore, the petitioner is

before this Court praying to enlarge him on bail.

5. The learned senior counsel contends that the

alleged ganja was concealed underneath the coconut

bags and therefore it cannot be said that the petitioner

was in conscious possession of ganja. He contends that

the petitioner was only the owner-cum-driver of the

truck which was transporting the load of coconuts and he

was not aware that there was ganja in the truck. He

contends that there is non-compliance of Section 42 of

the NDPS Act, as the secret information said to be

received by the complainant was not reduced into writing

and reported to his superior officer. He further contends

that no quantitative analysis of the seized material has

been carried out and in the absence of quantitative

analysis, prosecution must fail. He contends that the

search and seizure has been carried out during night

hours on a private vehicle, which is in violation of the

mandatory provisions of Sections 42 and 43 of the NDPS

Act. He has also contended that the samples were drawn

on 12.04.2021 and the FSL report was received on

11.06.2021, which is not within 15 days and it is in

violation of Standing Instructions 1/88, hence on this

ground also the petitioner is entitled for bail.

6. The learned senior counsel has also contended

that no analysis by separation of the seeds, stems, buds

and flowers etc, has been carried out and therefore it

cannot be said that the quantity of the ganja seized is

commercial quantity. It is further contended that the

prosecution has nowhere alleged that the petitioner was

engaged in financing illicit traffic or harbouring the

offenders, hence Section 27A of the NDPS Act also does

not attract. He therefore submits that there are

reasonable grounds for believing that the petitioner is

not guilty of the alleged offences and therefore seeks to

allow the petition and release the petitioner on bail.

7. The learned senior counsel has relied on a

decision of the Hon'ble Apex Court in Abdul Rashid

Ibrahim Mansuri vs. State of Gujarat reported in

(2000)2 SCC 513 to contend that it is imperative on

the Officer who receives a credible information that any

narcotic drug or psychotropic substance has been

concealed in any building, conveyance or enclosed place,

to take it down in writing and he shall forthwith send a

copy thereof to his immediate official superior. He

contends that the action of the officer, who claims to

have exercised it on the strength of such unrecorded

information, would become suspect.

8. Per contra, the learned counsel appearing for

respondent/NCB contends that this Court has already

rejected the prayer of the petitioner and there are no

changed circumstances to once again consider his bail

petition. Pointing out to the order passed by this Court in

Criminal Petition No.3921/2021 he contends that this

Court has observed that an information report under

Section 42 of the NDPS Act was prepared and forwarded

to the superior officer prior to conducting seizure.

Further, a mahazar was prepared for seizure of ganja

weighing about 93.8 kgs. which was concealed in large

brown coloured jute gunny bags. He would further point

out placing reliance on the Judgments of the Hon'ble

Apex Court that non-compliance of Section 50 of the

NDPS Act would not invalidate the effect of recovery

from the search of vehicle, since the recovery was

affected from the bag and Section 50 of the NDPS Act

could be made applicable only in case of personal seizure

of contraband material.

9. Learned counsel for the respondent has

further contended that the procedures contemplated

under law for the search and seizure has been strictly

followed and there are sufficient material to show that

the petitioner is involved in a serious offence of

trafficking ganja and a commercial quantity of ganja

weighing 93.8 kgs. has been seized and therefore there

is a prima facie case against the petitioner. He contends

that Section 37 of the NDPS Act restricts grant of bail to

a person against whom there is a prima facie case. He

therefore seeks to reject the petition.

10. It is the case of prosecution that, on

08.04.2021 at about 17.45 hours, a secret information

was received from reliable source that two persons are

carrying huge quantity of ganja in their truck bearing

registration No.KA-16-A-9235 and that they will be

entering Bengaluru through Devanahalli toll gate around

1.00 a.m. The Investigation Officer along with the NCB

team from Bengaluru Zonal unit secured independent

witnesses and they proceeded to the spot and

intercepted the vehicle, in which the petitioner and

another person were present. They interrogated them

and on searching the vehicle, found three large brown

coloured jute gunny bags concealed beneath the huge

load of coconuts inside white gunny bags. The said jute

gunny bags contained flowering and fruiting tops of the

cannabis plants.

11. The material on record would disclose that an

information report under Section 42 of the NDPS Act was

prepared on receiving the secret information and it was

sent to the Assistant Director, NCB. The Assistant

Director, NCB has authorized to search under sub-

Section (2) of Section 41 of the NDPS Act. Further,

sample of the suspected material was collected from the

gunny bag and it was tested with the field drug detection

kit, which gave positive result for ganja. The contraband

was seized which weighed 93.8 kgs.

12. The material on record would further disclose

that the prosecution sought permission from the Court to

draw samples under Section 52A of the NDPS Act, so

that the seized narcotic drugs could be thereafter be

disposed of as per sub-Section (1) of Section 52A of the

Act, after retaining the certificate, photographs and

samples and also to forward the original sample to the

Government laboratory for chemical analysis. The

samples were drawn accordingly with certification by the

learned Magistrate under Section 52A(3) of the NDPS

Act, who certified that the inventory is as per the seizure

documents etc, and thus certifying the correctness of the

inventory. After the samples were sent for chemical

analysis, a test report was received confirming the

contraband as ganja.

13. Going through the material on record, this

Court finds that there is no violation of the mandatory

provisions with regard to search and seizure of ganja and

the quantitative analysis, taking sample and sending the

contraband for chemical examination. Hence, the

contentions raised by the learned senior counsel, in this

regard cannot be accepted.

14. It is contended that the chemical analysis

report has not been received within 15 days as per the

Standing Instruction No.1/88. In this regard, the learned

counsel for the petitioner has relied on a decision

rendered in the case of Chandru Kunthur

Raghuvegowda vs. State by Inspector of Customs

CIU, Bengaluru, reported in ILR 2017 KAR 4053.

15. The Hon'ble Apex Court in the case of Union

of India vs. Bal Mukund and others reported in

(2009)12 SCC 161 which was relied on by this Court in

the above referred Judgment has not held that infraction

of Standing Instruction No.1/88 is a ground for releasing

the accused on bail. In the case on hand, there is a

report of the FSL confirming that the contraband is

ganja. Hence, merely because the report is not received

within 15 days is not a ground to release the accused on

bail. There is no inordinate delay in receiving the FSL

Report.

16. In the case of Union of India Vs. Mohanlal

and another reported in (2016)3 SCC 379 relied on by

the learned counsel for the respondent, the Hon'ble

Apex Court at para 19 has held as under :

"19. ..... There is in our opinion no manner of doubt that the seizure of the contraband must be followed by

an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A. ....."

17. The learned senior counsel has contended

that the alleged bag containing ganja was hidden

underneath the coconut bags and the petitioner being

the driver of the truck was only accompanying accused

No.1 for transporting coconuts and therefore, it cannot

be said that he was in conscious possession of ganja.

18. The Hon'ble Apex Court in the case of Union

of India Vs. Md. Nawaz Khan reported in (2021)10

SCC 100 while considering what amounts conscious

possession has observed in para 26 as under:

"26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 : (2010) 3 SCC (Cri) 1431] , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 : (2015) 3 SCC (Cri) 881] , this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge."

19. The truck from which the ganja was seized

was found moving in the wee hours of 09.04.2021. The

petitioner is admittedly the owner-cum-driver of the

truck. Three large brown coloured jute gunny bags were

concealed beneath the huge load of coconuts. The

voluntary statement of the petitioner was recorded.

20. Under Section 35 of the NDPS Act, in any

prosecution for an offence under the Act, which requires

a culpable mental state of the accused, the Court shall

presume the existence of such a mental state but, it shall

be a defence of the accused to prove the fact that he had

no such mental state with respect to the act charged as

an offence. In the case on hand, at this stage, this Court

finds that the petitioner had real knowledge of the nature

of the substance concealed in the jute gunny bags.

21. Section 37 of the NDPS Act regulates the

grant of bail in cases involving offences under the NDPS

Act. Section 37 reads as follows:

"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 under section 19 or section 24 or section 27-A 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 sub-section (1) are in addition to the limitations under the Criminal Procedure Code , 1973 (2 of 1974) or any other law for the time being in force, on granting of bail".

22. The learned counsel for the respondent has

relied on a decision of a coordinate bench of this Court in

the case of Emmanuel Michael Vs. Union of India

passed in Criminal Petition No.3406/2021, disposed

of on 08.10.2021, wherein this Court has relied on a

decision of the Hon'ble Apex Court in Paulswamy's

case [(2000) 9 SCC 549] relating to matter regarding

non-compliance with the formalities during the bail

stage. Para 24 of the said order is extracted hereunder:

"24. It is relevant to refer to the decision of Paulswamy (supra), wherein, the Hon'ble Apex Court 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 state 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 resumption can be rebutted only during evidence and not merely saying that no document has been reduced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections. ....."

emphasis supplied

In so far as quantity of ganja seized, this Court has

already considered in the earlier petition that the same is

much more than the commercial quantity. Further, the

accused has been found transporting ganja in his vehicle

and at this stage, the material collected is sufficient to

show that he had real knowledge of the nature of

substance concealed in the jute gunny bags beneath the

load of coconuts. Hence, taking into consideration all the

above, this Court is of the considered view that, a prima

facie case is made out against the petitioner and it

cannot be said at this stage that there are reasonable

grounds for believing that the petitioner is not guilty of

the offence alleged against him.

Hence, the following:

ORDER

Criminal Petition is dismissed.

SD/-

JUDGE

Hb/Ksm*