Karnataka High Court

Sri Kra Michel vs Union Of India on 6 October, 2023

Bench: S Vishwajith Shetty

                                         -1-
                                                      NC: 2023:KHC:36261
                                                  CRL.P No. 7597 of 2023




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 6TH DAY OF OCTOBER, 2023

                                      BEFORE
                THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                      CRIMINAL PETITION NO. 7597 OF 2023
             BETWEEN:

             SRI. KRA MICHEL,
             AGED ABOUT 31 YEARS,
             S/O MICHEL,
             R/O VILLA 754, RUE DES ANNETTE,
             ABIDJAN,
             NATIONALITY COTE D I' VOIRE.
                                                            ...PETITIONER
             (BY SRI. BALAKRISHNA BABURAO, ADVOCATE)

             AND:

             UNION OF INDIA,
             NARCOTICS CONTROL BUREAU,
             REPRESENTED BY PUBLIC PROSECUTOR,
Digitally
signed by    AND CGSC FOR NCB,
NANDINI MS
Location:    HIGH COURT OF KARNATAKA
HIGH COURT
OF           BENGALURU - 560 001.
KARNATAKA
                                                          ...RESPONDENT
             (BY SRI. H.S. SURESH, ADVOCATE)

                  THIS CRL.P IS FILED U/S.439 OF CR.P.C PRAYING TO
             ENLARGE THE PETITIONER ON BAIL IN SPL.C.C.NO.1503/2023
             (NCB.F.NO.48/1/32/2022/BZU),        REGISTERED      BY   THE
             RESPONDENT PENDING ON THE FILE OF XXXIII ADDITIONAL
             CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT FOR
             NDPS CASES, BENGALURU FOR THE OFFENCE P/U/S 8(c),
             20(b)(ii)A, 21(c), 22(b)(c), 23(a)(b), 27, 27A, 28 AND 29 OF
             N.D.P.S. ACT.
                                 -2-
                                             NC: 2023:KHC:36261
                                         CRL.P No. 7597 of 2023




     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:


                               ORDER

Accused No.4 in Spl. C.C. No.1503/2023 pending before

the Court of XXXIII Additional City Civil and Sessions Judge and

Special Judge for NDPS Act at Bengaluru for the offences

punishable under Sections 8(c), 20(b)(ii)(A), 22(B), 23(A)(B),

27, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic

Substances Act (hereinafter referred to as 'NDPS Act' for short)

is before this Court seeking regular bail.

2. Heard the learned counsel for the parties.

3. NCB F. No.48/1/32/2022/BZU was registered by the

respondent - Police on 28.12.2022 against accused Nos.1 to 3

and seizable quantity of drugs like Ganja, Cocaine and Hashish

were seized from their possession. In the follow-up action

based on the confession statement of the said accused person,

the petitioner was apprehended on 05.01.2023 in Goa and from

his possession 280 grams of Ganja, 103 grams of Hashish, 57

grams of Cocaine, 141 grams of Amphetamine in Brown and

White Color, 99 Nos. of MDMA Pills weighing 46 grams of

MDMA, 422 Nos. of LSD Blots weighing 07 grams was seized.

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

Petitioner was thereafter arraigned as accused No.4 in the case.

Investigation in the case is completed and charge sheet has

been filed for the aforesaid offences in total against four

persons.

4. Petitioner's bail application filed before the Court of

the XXXIII Additional City Civil and Sessions Jduge and Special

Judge (NDPS), Bengaluru in Crl. Misc. No.722/2023 was

rejected on 13.02.2023. Under these circumstances, the

petitioner is before this Court.

5. Learned counsel for the petitioner having reiterated

the grounds urged in the petition submits that though the

contraband articles seized from the petitioner is of commercial

quantity, there is total non-compliance of Section 50 of the

NDPS Act, 2012 in the present case. He further submits that

the contraband articles were seized from the pouch, which the

petitioner was having and therefore Section 50 of the NDPS Act

would be applicable to the seizure. He also submits that

accused Nos.1 to 3 from whom commercial quantity of drugs

was seized, have been enlarged on bail even prior to filing of

charge sheet. Accordingly, prays to allow the petition.

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

6. Per contra, learned counsel appearing for the

respondent, who has filed his statement of objections has

opposed the bail application and submits that having regard to

Section 37(1)(b) of the NDPS Act, since commercial quantity of

drug is seized from the possession of the petitioner, the

petitioner is not entitled for bail. However, he does not deny

the submission made by the learned counsel for the petitioner

that Section 50 of the NDPS Act has not been complied in this

case.

7. The material on record would go to show that on

receipt of credible information on 28.12.2022 to the effect that

one shipment suspected to contain drugs shipped from USA

was lying in the Post Office, Chamarajapet, Bengaluru, after

complying the requirements under Section 42 of the NDPS Act,

the NCB officials had visited the Post Office and after

introducing themselves to the Post Master, had collected the

consignment which was in the name of Pavan Kumar. From the

said consignment, contraband articles - Ganja, Hashish,

Cocaine was seized and subjected to panchanama.

8. During the course of investigation in the said case,

accused Nos.1 to 3 were apprehended and based on their

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

confession statement, the NCB Officials had visited Goa to

apprehend the petitioner herein who allegedly had supplied

drugs to accused Nos.1 to 3 earlier. On 05.01.2023, the

petitioner was allegedly apprehended at Arambol Beach, Goa

and from his possession, they had seized multiple drugs of

which two items are of commercial quantity. From a perusal of

the panchanama/mahazar dated 05.01.2023, which was

prepared after the drugs were seized to panchanama, it is seen

that there is absolutely no compliance of requirement of

Section 50 of the NDPS Act. Undisputedly, the drugs were

found in the pouch which was with the petitioner and the same

was allegedly handed over by the petitioner to the NCB Officials

and thereafter, they had opened the said pouch and seized the

drugs from the said pouch.

9. Learned counsel appearing for the respondent has

not disputed the submission made by the learned counsel for

the petitioner that there is no compliance of Section 50 of the

NDPS Act in the present case while the search and seizure was

done from the person of the petitioner herein on 05.01.2023.

Section 37(1)(b) of the NDPS Act provides fro certain rigors for

grant of bail to the accused persons, who are involved in

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

offences punishable under the NDPS Act wherein the

commercial quantity of drugs are involved, and therefore, a

strict compliance of the mandatory provisions of the Act is

expected from the officials/Investigation Officers. The Junior

Intelligence Officer, NCB, Bengaluru, who had conducted the

search and seizure of the drugs from the person of petitioner

on 05.01.2023 at Arambol Beach, Goa has failed to comply the

mandatory requirements of Section 50 of the NDPS Act before

proceeding to search the petitioner. Since the contraband

articles were found in the pouch which was in possession of the

petitioner, Section 50 of the NDPS Act becomes applicable in

view of the judgment of the Hon'ble Apex Court in the case of

Arif Khan alias Agha Khan Vs. State of Uttarkhand

reported in AIR 2018 SC 2123.

10. The respondent-Narcotics Control Bureau is a

specialized unit created by the Union Government for the

purpose of investigating cases registered for the offences under

the NDPS Act. The officers of the respondent-Bureau are

therefore expected to know the procedure that is required to be

followed while investigating cases registered under the NDPS

Act. Since Section 37(1)(b) of NDPS Act provides for certain

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

rigors for granting bail to accused persons who are involved in

the offences registered under the NDPS Act involving

commercial quantity of drugs, the mandatory provisions of law

under the NDPS Act is expected to be complied with by the

officers investigating cases registered for the offences under

the NDPS Act. Failure to comply with the mandatory

requirements of the NDPS Act, will enure to the benefit of the

accused persons. This Court has noticed that certain

circulars/guidelines and standing orders are issued by the

Central Government for the benefit of the officers who

investigate crimes under the NDPS Act. Inspite of the same,

this Court has often come across cases where the mandatory

provisions of the NDPS Act are not complied with by the

Investigating Officers. Such default on the part of the

Investigating Officers will aid the accused persons either to get

enlarged on bail or to get an order of acquittal. Therefore, the

officers investigating the cases should be made accountable for

such lapses and necessary steps is required to be taken to curb

the chances of deliberate omission on the part of the

Investigating Officers to comply the mandatory requirement of

the provisions of the NDPS Act.

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

11. Accused Nos.1 to 3 from whose possession,

commercial quantity of contraband articles were seized have

been already granted regular bail by the Sessions Court even

before the charge sheet has been filed. Based on the

confession statement of the said accused persons, the

petitioner has been apprehended in the case and arraigned as

an accused. Investigation in the case is completed and now the

charge sheet has been filed. Accordingly, the following:

ORDER

The petition is allowed.

The petitioner is directed to be enlarged on bail in Spl.

C.C. No.1503/2023 pending before the Court of XXXIII

Additional City Civil and Sessions Judge and Special Judge for

NDPS Act at Bengaluru for the offences punishable under

Sections 8(c), 20(b)(ii)(A), 22(B), 23(A)(B), 27, 27A, 28 and

29 of NDPS Act, subject to the following conditions:

a) Petitioner shall execute personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties for the likesum, to the satisfaction of the jurisdictional Court;

NC: 2023:KHC:36261 CRL.P No. 7597 of 2023

b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;