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"12. After carefully examining the arguments
advanced by the learned counsel for the parties and
having cursorily glanced at the records, we are of
the opinion that the impugned order cancelling the
bail granted in favour of Bharat Chaudhary (A-4), is
not sustainable in view of the fact that the records
sought to be relied upon by the prosecution show
that one test report dated 6-12-2019, two test
reports dated 17-12-2019 and one test report
dated 21-12-2019 in respect of the sample
pills/tablets drawn and sent for testing by the
prosecuting agency conclude with a note appended
by the Assistant Commercial Examiner at the foot
of the reports stating that "quantitative analysis of
the samples could not be carried out for want of
facilities".
13. In the absence of any clarity so far on
the quantitative analysis of the samples, the
prosecution cannot be heard to state at this
preliminary stage that the petitioners have been
found to be in possession of commercial quantity of
psychotropic substances as contemplated under the
NDPS Act. ..."
11. This Court in the case of Shekappa (supra) in paragraph
No.14 has observed as follows:-
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"14. ... In the absence of the report as
provided under Rule 14 of the NDPS (Seizure)
Rules, 2022, serious doubt arises with regard to the
quantity of Psychotropic Substance contained in the
tablets which were allegedly being exported in the
name of the company of which the petitioners are
the directors. The object behind obtaining a report
under Rule 14 of the NDPS (Seizure) Rules, 2022 is
to ensure fair play in the investigation. Punishment
for offences under NDPS Act depends on the
quantity of contraband article seized. Even if it is
presumed that the investigating officer may have
some difficulty in strictly complying the time frame
provided under Rule 14 of the NDPS (Seizure)
Rules, 2022, but atleast at the time of filing final
report, compliance of this Rule is expected to be
adhered to."
12. In the case of Mujeeb Mehboob (supra) since FSL
Report does not clearly indicate about the contents of the
seized contraband article, this Court has observed that "FSL
Report throws no light as to the percentage of the aforesaid
ingredients in the quantity seized and there is still doubt as to
what was seized was actually charas and ganja" and had
granted regular bail to accused where commercial quantity of
contraband article was seized.
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13. In the present case, though contraband article seized
totally weighed 37.527 kgs, the entire contraband article
cannot be considered as ganja within the meaning of Section
2(iii)(b) of the NDPS Act. The seized contraband article is said
to be ganja gummies which contains aforesaid four contents,
which are said to be prohibited drug/substance.
14. In addition to the aforesaid, it is also noticed that there is
no compliance of requirement of Section 38 of the NDPS Act in
the present case. Section 38 of the NDPS Act, reads as
follows:-
"38. Offences by companies.--(1) Where an
offence under Chapter IV has been committed by a
company, every person, who, at the time the offence was
committed was in charge of, and was responsible to, the
company for the conduct of the business of the company
as well as the company, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against
and punished accordingly:
Provided that nothing contained in this sub-section
shall render any such person liable to any punishment if
he proves that the offence was committed without his
knowledge or that he had exercised all due diligence to
prevent the commission of such offence.
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(2) Notwithstanding anything contained in sub-
section (1), where any offence under Chapter IV has been
committed by a company and it is proved that the offence
has been committed with the consent or connivance of,
or is attributable to any neglect on the part of, any
director, manager, secretary or other officer of the
company, such director, manager, secretary or other
officer shall be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished
accordingly.
Explanation.--For the purposes of this section,--
(a) "company" means any body corporate and
includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner
in the firm."
15. In the complaint which is filed after completing
investigation, allegation is made that orders were placed by the
petitioner for importing contraband article in the name of the
Company known as M/s. Rolling Filters Private Limited of which
petitioner is said to be the CEO. It is also alleged that the
money was transferred from the account of the Company for
the purpose of importing the contraband article and the
Company has made huge profit for the financial years 2018-19
onwards till 2022-23. It is stated that there is a manifold
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increase in the profits of the Company, which is suspicious and
it is also alleged that the premises of the Company was being
used for the purpose of stocking the contraband article. In view
of the aforesaid allegations, prima facie, it appears that
Company is a necessary party to the proceedings and it
becomes doubtful whether in the absence of the Company,
petitioner, who is said to be the CEO of the Company alone can
be prosecuted for the alleged offences. When the aforesaid
aspect of the matter was pointed out to the learned counsel for
the respondent, he has not disputed the same. Considering the
aforesaid lacunas in the case of the prosecution, rigour under
Section 37(1)(b) of the NDPS Act cannot be strictly made
applicable as against the petitioner, who has no other criminal
antecedents and it also cannot be definitely said that the seized
contraband article is of commercial quantity. Under the
circumstances, I am of the opinion that the prayer made by the
petitioner for grant of regular bail needs to be answered
affirmatively. Accordingly, the following order:-
16. The petition is allowed. The petitioner is directed to be
enlarged on bail in Spl. C.C. No.2251/2024 pending before the
Court of XXXIII Addl. City Civil and Sessions Judge and Special
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Judge (NDPS), Bengaluru, arising out of NCB
F.No.48/1/13/2024/BZU registered by NCB, Bengaluru Zonal
Unit, for the offences punishable under Section 8(c) read with
Sections 23(c), 27, 27A and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, subject to the following
conditions:
a) Petitioner shall execute a personal bond for a
sum of Rs.1,00,000/- with two sureties for the
likesum, to the satisfaction of the jurisdictional
Court;
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;
c) The petitioner shall not directly or indirectly
threaten or tamper with the prosecution witnesses;
d) The petitioner shall not involve in similar
offences in future;
e) The petitioner shall not leave the jurisdiction
of the Trial Court without permission of the said
Court until the case registered against him is
disposed off.
SD/-
(S VISHWAJITH SHETTY)
JUDGE
