Dismissed

Emmanuel Michael v. Union of India

Karnataka HC8 Oct 2021CRL.P/3406/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the bail petition of an arrested accused in a narcotics case. The court held that commercial quantities of drugs were recovered based on the accused's voluntary statement, satisfying the strict conditions of Section 37(1)(b)(ii) of the NDPS Act to refuse bail.

What did the court decide?

Petition under Section 439 Cr.P.C. for bail in NCB Crime No.48/1/20/2020/BZU dismissed.

Emmanuel Michael Vs Union of India — Narcotics (NDPS) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G. UMA

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CRIMINAL PETITION No.3406 OF 2021

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BETWEEN :

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EMMANUEL MICHAEL S/O MICHAEL PETER AGED ABOUT 34 YEARS R/AT NO.6(12), 2^ND FLOOR 4^TH CROSS, KAVERINAGAR HEBBAL, BENGALURU-560 024.

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… PETITIONER

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(BY SRI: HASHMATH PASHA, SENIOR COUNSEL FOR SRI: NASIR ALI, HP UNIQUE AND CO., ADVOCATES)

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AND :

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UNION OF INDIA NARCOTIC CONTROL BUREAU BENGALURU ZONAL UNIT BENGALURU-560 001. REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001.

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… RESPONDENT

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(BY SRI: MADHUKAR M.DESHPANDE, CGSC)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB CR.NO.48/1/20/2020/BZU ON THE FILE OF THE RESPONDENT NCB, BENGALURU FOR THE OFFENCES

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PUNISHABLE UNDER SECTIONS 22, 23, 27A, 28 AND 29 OF NDPS ACT, WHICH IS PENDING ON THE FILE OF THE HON’BLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPL.COURT FOR NDPS CASES, BENGALURU.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:

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O R D E R

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The petitioner-accused No.2 is before this Court seeking grant of bail under Section 439 of Cr.P.C. in NCB Crime No.48/1/20/2020/BZU of Narcotics Control Bureau, Bengaluru Zonal Unit, Kattigenahalli (for short ‘NCB’), pending on the file of learned XXXIII Additional City Civil and Sessions Judge and Special Court for NDPS cases, Bengaluru, registered for the offences punishable under Sections 22, 23, 27A, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, (for short 'NDPS Act'), on the basis of secret information.

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Brief facts of the case are that, on 17.12.2020,

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the Intelligence Officer, NCB, Bengaluru received secret information regarding a parcel lying in the foreign post office, Chamrajpet, suspecting to have contained MDMA

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pills. The information was submitted to the Assistant Director, NCB, Bengaluru under Section 42 of the NDPS Act and as per his directions, a team of officials went to the foreign post office. They found the parcel bearing No.CC089254397NL produced by the postal authority which was consigned from one John Meruj of Amsterdam, addressed to the consignee Queen Nancy of Sahakarnagar, Bengaluru. When the suspected parcel was opened in the presence of panchas, they found 314 grams of pale yellow colored round shaped pills and 296 grams of grey colored grenade shaped pills in poly pouches. All these pills were MDMA, as the same were tested in the test kit carried with the team. The said poly pouches were concealed inside the clothes and a waybill was also annexed to the same. All these materials were seized under the seizure mahazar and deposited with the officer in-charge of the godown of NCB, Bengaluru.

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3. On the basis of secret information, two African

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nationals i.e., accused Nos.1 and 2 were intercepted near

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Sahakarnagar Post Office, Bengaluru, who came there to enquire about the parcel consigned in the name of accused No.1 which was containing the phone number of accused No.2. Accused No.1 was apprehended and the summons under Section 67 of NDPS Act was served. It is stated that accused No.1 revealed the name of accused No.2 as he is her friend and he is waiting outside, little far away from the post office. NCB team found accused No.2 and introduced them as NCB officials by showing their ID card. Immediately, accused No.2 started running away and with great effort, he was caught. In the incident, accused No.2 caused grievous injuries to one of the NCB officers who sustained fracture to his arm with other injuries. Crime No.155 of 2020 of Kodigehalli Police Station was registered in that regard. Summons under Section 67 of NDPS Act was served on him.

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It is stated that statements of accused Nos.1 and 2 were recorded regarding the parcel and the MDMA pills that were found therein. Both of them have confessed

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that 610 grams of MDMA pills were consigned by them in the name of accused No.1. Thereafter, accused Nos.1 and 2 were taken to the custody of NCB and they were interrogated. During custodial interrogation, the accused have revealed that another parcel bearing No.EG22836800ET containing cocaine is also booked and based on this information the NCB officials once again visited the foreign post office, Chamrajpet, Bengaluru and they could seize 235 grams of half white colored powder believed to be cocaine in the presence of panchas under the seizure mahazar. The said contraband was also deposited with the officer in-charge of godown on 21.12.2020 itself.

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It is stated that during investigation, it is found that accused No.2 is possessing fake passport and living in India illegally. He is hiding his real identity and the real name. Crime No.53 of 2021 of DJ Halli Police Station under Section 14 of Foreigners Act is registered in that regard. On 19.12.2020 the house of accused No.2 was

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searched and SBI classic visa card, two passports and the documents relating to Honda Activa were found. An account with SBI in the name of Mugmami Esther Awsi was opened who is a fictitious person and the account was being handled by accused No.2. It is found that in all Rs.1.14 crores was transacted through the said account, which is a suspicious dealing. Accused No.3 Vaibhav Gupta has transferred this amount. He was apprehended and his statement was also recorded, wherein, he has specifically stated that the said account belongs to accused No.2 and that he used to purchase MDMA from accused No.2 and used to transfer the amount to the said bank account. Thus, it is the contention of the prosecution that accused Nos.1 and 2 booked commercial quantity of MDMA and two parcels in the name of accused No.1 was received in the foreign post office. The first parcel was containing in all 610 grams of MDMA pills, whereas the second parcel was containing 235 grams of cocaine and thereby, they have committed the offences as stated above.

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6. Heard Sri.Hasmath Pasha, learned senior

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counsel for Sri.Nasir Ali, learned counsel for the petitioner and Sri.Madhukar Deshpande, learned Central Government Standing Counsel for the respondent -State. Perused the materials placed on record.

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Learned senior counsel representing the

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petitioner submitted that the petitioner is arrayed as accused No.2 without any basis. No parcel is received in his name. He never booked or collected any parcel. No drug is seized from his possession nor from his house when the search was undertaken. Petitioner is not having any criminal antecedents. He is not having any dealings with accused No.1 and therefore, he has nothing to do with the parcel addressed to accused No.1.

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Learned senior counsel further submitted that

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the Investigating Officer is only relying on the so-called confessional statement said to have been given by accused No.1 under Section 67 of NDPS Act. There is no recovery on the basis of said information. This statement is clearly

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hit by Section 25 of the Evidence Act as held by the Hon’ble Apex Court in Tofan Singh Vs State of Tamil Nadu¹ . When this information which is not admissible in law is removed, there is absolutely no material to connect the petitioner to the offences in question. He further submitted that the prosecution is trying to project as if the seizure of second parcel said to be containing contraband was on the basis of information given by accused Nos.1 and 2 in their voluntary statements. But in fact, the seizure of the contraband in the second parcel was much earlier in time and the same cannot be related to the socalled information given either by accused No.1 or by accused No.2. The seizure mahazar and the so-called voluntary statements of accused Nos.1 and 2 were submitted before the jurisdictional Magistrate only on 23.12.2020, whereas, it is the contention of prosecution that the voluntary statements of the accused were recorded and the contraband was seized on 21.12.2020. Therefore, the seizure of the contraband cannot be related

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1 (2021) 4 SCC page 1

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to the information said to have been given by the accused. On the other hand, the seizure of the parcel was effected suo-moto and subsequently, the statements styled as voluntary statements of the accused were prepared. Therefore, no reliance could be placed on those statements for any purpose. Even accused No.3 is enlarged on bail. Under such circumstances, detention of the petitioner in custody would amount to pre-trial punishment.

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Learned senior counsel contended that the seizure of the second parcel as contended by the prosecution is not on the basis of information said to have been given by accused Nos.1 and 2. The statement of one R.C.Srinivasa Murthy, the employee of foreign post office never refers to any of such information said to have been given by any of the accused. The unique number found on the parcel in question was not within the knowledge of the accused and they could not have given such information. It is stated that the voluntary statement of the petitioner was recorded for the first time on 18.12.2020. But there

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was no reference to the second parcel. It is stated that again his statement was recorded for the second time on 21.12.2020, wherein, for the first time there is reference to such parcel. One more voluntary statement was said to have been recorded on 22.12.2020, i.e., after seizure of second parcel. There is no consistency in these three statements said to have been recorded on the basis of information given by the petitioner. Even though, the second parcel said to have been seized on 21.12.2020, the same was not produced before the Special Court till 23.12.2020. The authorized officer was in possession of the documents, the contraband and the so-called statement of the accused with him till 23.12.2020 on which date, the same were produced before the learned Magistrate, thereby, the prosecution violated the procedure as contemplated under the Act and also as laid down by the Hon’ble Apex Court in Union of India Vs Mohanlal and another² .

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2 (2016) 3 SCC 379

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10. Learned senior counsel also contended that as

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per the copy of Malkhana produced by the respondent, there is reference to accused No.1 as Ramla Shedafa Nancy on 17.12.2020 itself. The said name was put forth for the first time on the said date as she was initially referred to as Queen Nancy. Therefore, prima facie it could be concluded that there was concoction of documents by the officer without following the procedures as contemplated under law.

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Thus, the learned senior counsel would contend that the investigation is completed. Both the parcels referred to by the prosecution were addressed to accused No.1 and not to the present petitioner. The petitioner was caught near the post office, while he was in the car. No contraband was seized from his possession. There is nothing to connect the petitioner to the offences in question. The passport of the petitioner is already seized. Whether the passport is fake or not, whether the petitioner is staying in India without passport or not are to

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be determined by the Court before which a separate criminal case is registered under Section 14 of the Foreigners Act. Even though, the house in occupation of the petitioner was searched, no incriminating materials were seized. The petitioner is incarcerated since nine months. Since there are no prima facie materials to connect the petitioner to the seizure of commercial quantity of contraband, Section 37(1)(b) (ii) of the NDPS Act cannot be invoked against the petitioner. He further submitted that accused No.3 has been granted bail and on the principle of parity, the present petitioner is also entitled to be enlarged on bail. Hence, he prays to allow the petition.

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Per contra, learned Central Government Standing Counsel representing the respondent opposing the petition submitted that the parcel which was seized on 17.12.2020 was addressed to accused No.1 and the same

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was consigned at the instance of accused No.2 and commercial quantity of MDMA pills weighing 610 grams

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was seized under the seizure mahazar. On 18.12.2020, accused No.1 had come along with accused No.2 to Sahakarnagar Post office to enquire about the parcel in question and at that time, both the accused were apprehended. Since accused No.2 assaulted one of the NCB officer, separate criminal case in Crime No.155 of 2020 of Kodigehalli Police Station is registered. During investigation, it is found that accused No.2 is a Kenyan National and was not having valid passport to stay in India. He is using fake passport and therefore, Crime No.53 of 2021 of DJ Halli Police Station was registered for the offence punishable under Section 14 of the Foreigners Act. When the house of accused No.2 was searched, SBI classic visa card, two passports and the documents relating to Honda Activa were found. An account with SBI in the name of Mugmami Esther Awsi was opened who is a fictitious person and the account was being handled by accused No.2. It is found that in all Rs.1.14 crores was transacted which are of suspicious nature. Accused No.3

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had transferred this huge amount to accused No2 as consideration for the contraband.

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Learned CGSC further contended that the statements of accused Nos.1 and 2 were recorded by the Investigating Officer, wherein, they have given information regarding another parcel which they had booked and expecting it in the post office. On the basis of this information, again the officials went to the foreign post office at Chamrajpet and could seize one more parcel addressed to accused No.1 which was containing 235 grams of cocaine, which is also of commercial quantity. Thus, it is clear that the petitioner-accused No.2 is actively involved in procuring and selling the MDMA pills and cocaine powder and was found in possession of commercial quantity of contraband. Under such circumstances, Section 37(i)(b) of NDPS Act comes into operation and the accused is not entitled to be enlarged on bail.

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Learned CGSC submitted that the Investigating Officer conducted the investigation in a proper manner and

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there is compliance of all the requirements of law. Seizure of the second parcel containing the contraband was only on the basis of information provided by accused Nos.1 and 2 in their statements. Therefore, the voluntary statements of accused Nos.1 and 2 assumes importance, in spite of the decision in Tofan Singh (supra) . When the information leads to the recovery of incriminating materials, such information is not hit by Section 25 of the Evidence Act. But on the other hand, it is covered under the exception under Section 27 of the Evidence Act.

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Learned CGSC further submitted that the information regarding the arrival of a parcel suspected to have containing MDMA was received on 17.12.2020 and on the same day, the parcel was opened in the presence of panchas and the officials of the post office and the contraband found therein was seized after testing the same with the test kit and found that the same is MDMA pills, which is of commercial quantity. The information was submitted to the higher officers before proceeding to the

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post office and at the time of seizing the contraband and thereafter, all the procedures were followed. The contraband seized was given to the custody of godown under the godown receipt dated 21.12.2020 which is received therein at 15.00 hours. Receipt of the substance was entered in the register maintained in Malkhana. The Intelligence Officer who is authorized under the Act and the Assistant Director of NCB are the responsible officers of NCB who discharged their official duty regularly and in the ordinary course of business. The materials placed before the Court prima facie disclose compliance of all such procedures as contemplated under the Act and also as laid down by the Apex Court in Mohanlal (supra). Therefore, there is no basis to suspect these responsible officers concocted any of the documents as contended by the learned senior counsel. The procedure followed by the officers at each and every stage are documented and produced before the learned Magistrate along with the final report, copy of which is also served on the accused. Under such circumstances, the contention that the officers are in

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the position of concocting the documents, cannot be accepted.

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Learned CGSC further submitted that in Jamatalashi, there is reference to the mobile phones seized from the custody of accused Nos.1 and 2. These mobile phones contained incriminating whatsapp chats between accused Nos.1 and 2 and there is reference to the dealing with the contraband by both the accused. Moreover, accused Nos.1 and 2 are referring to each other with secret names. Accused No.1 is referring to the petitioner as ‘Bastard’, only to conceal their identity in the chats.

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Thus, the learned CGSC would submit that there are sufficient prima facie materials to connect the petitioner to the offences in question and therefore, the rigor of Section 37(1)(b)(ii) of NDPS Act, is to be addressed. When it cannot be held that the petitioner is not guilty of the offence in question and that he is not

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likely to commit any offence while on bail, he is not entitled for grant of bail.

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Alternatively, learned CGSC submitted that the petitioner is not having valid passport to stay in India. He was using fake passport to enter and stay in India and therefore, a separate criminal case is registered in Crime No.53 of 2021 of DJ Halli Police Station under Section 14 of the Foreigners Act. Therefore, even if the petitioner is to be enlarged on bail for any reason, he has to be detained in the Detention Centre as held by this Court is

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Babul Khan and another Vs State of Karnataka and another³ . Accordingly, he prays for dismissal of the petition.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arises for my consideration is:

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3 Crl.P.No.6578 of 2019 DD 19.05.2020

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“Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?”

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My answer to the above point is in ‘Negative’ for the following:

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R E A S O N S

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The specific contention of the prosecution is that on the basis of secret information, they found a parcel in the foreign post office at Chamrajpet, which was containing two separate packets, weighing 314 grams and 296 grams of MDMA pills. It is also its contention that accused Nos.1 and 2 were apprehended while they were near the post office at Sahakaranagar for enquiring about the parcel in question. Both the accused were subjected to interrogation and they revealed about another parcel that is expected in the name of accused No.1. On the basis of this information, the NCB officials again went to foreign post office at Chamrajpet and found that another parcel addressed to accused No.1, which was containing 235 grams of cocaine. Both the parcels were consigned in the

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name of accused No.1 and were containing the phone number of accused No2. The mobile phones of accused Nos.1 and 2 were seized, which were containing whatsapp chats between the two, which reasonably refers to the drug business they are conducting and referring to each other with secret names. The house of the petitioner was searched and found two passports, SBI classic visa card and documents relating to the vehicle etc., During investigation, it is found that the passport held by the petitioner is fake one and the SBI account in the name of one Mugmami Esther Awsi, who is a fictitious person is held but the account was being operated by the petitioner himself. The account details reveal that huge sums of money to a tune of more than one crore is deposited in the said account. There were suspicious transactions. Accused No.3 gave his statement revealing the fact that he himself transferred Rs.1.14 crores in favour of accused No.2 through the said SBI bank account. Thus, it is the contention of prosecution that there are sufficient materials to constitute the offences against the petitioner

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and therefore, the final report is filed for the above said offences.

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On the other hand, it is contended by the

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petitioner that there was no recovery at his instance and that the so-called information provided under Section 67 of the NDPS Act by the co-accused is hit by Section 25 of the Evidence Act, in view of the decision of Hon’ble Apex Court in Tofan Singh (supra). Moreover, it is also his contention that the recovery of second parcel was much earlier to the so-called voluntary statement of accused Nos.1 and 2 as all these documents were produced before the learned Magistrate on 23.12.2020 i.e., about 2 days

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later. Therefore, he would contend that there is concoction of documents to implicate the petitioner without any basis.

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It is the contention of prosecution that accused Nos.1 and 2 were apprehended on 18.12.2020, when both of them have came near the post office at Sahakarangar for collecting the parcel, which was seized by the

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authorized officer on 17.12.2020 itself from the post office at Sahakarnagar. When NCB officials found the petitioner sitting in the car near Sahakaranagar Post Office on the basis of information given by accused No.1, introduced themselves to him and the petitioner started running away and even assaulted the officials which has resulted in injuries including fracture of hand to one of the official. It is their further contention that accused Nos.1 and 2 were taken to their custody and subjected them to interrogation. Their statements were recorded on 20.12.2020, wherein, accused No.1 revealed about another parcel lying in the foreign post office, Chamrajpet. Accordingly, NCB officers again went to the foreign post office and seized the second parcel on 21.12.2020. It is stated that the seized contraband were deposited in the official go-down under the go-down receipt. The extract of Malkhana register is produced as additional document No.3, which discloses that the contraband seized on 17.12.2020 and again on 21.12.2020 were deposited therein. The statements along with the requisition for conducting inventory and drawing

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sample in terms of the directions issued by the Hon’ble Apex Court in Mohanlal (supra) was submitted before the learned Magistrate on 23.12.2020.

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In the light of these contentions of the prosecution, the submissions made by the learned senior counsel are to be considered. When specific contention is taken by the prosecution which is also supported by the documents and when it is stated that all those documents are chronologically placed before the learned Magistrate while filing the final report, the same cannot be ignored at this stage to arrive at a conclusion that the accused have never given any information to the NCB officials to seize

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the second parcel in the foreign post office or the voluntary statements, seizure mahazar, go-down receipts, Malkhana register etc., were concocted by the authorized officer only with an intention to implicate the petitioner in the case. There is nothing on record to accept the contention of the learned senior counsel in this regard. Of course, the seizure mahazar and the statements of the accused were

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produced before the learned Magistrate on 23.12.2020 and not on 20.12.2020 or 21.12.2020 as the case may be. But, the godown register and Malkhana register prima facie support the contention of prosecution regarding date and time of entrusting the seized articles to the custody of Malkhana. If the seizure mahazar is considered in the light of statement of the accused, it gets support to the contention taken by the prosecution. Under such circumstances, I do not find any reason to form an opinion that NCB officials have concocted all the documents in their anxiety to falsely implicate the petitioner. No motive is imputed against NCB officers for such false implication. Section 114 of the Evidence Act enables the Court to presume the existence of certain facts and as per Clause(e), the judicial and official acts are presumed to have been regularly performed. This legal presumption cannot be dislodged so easily without there being any support.

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It is relevant to refer to the decision of

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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:

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“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

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document has been reduced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections.”

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Emphasis supplied

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Therefore, I am not inclined to accept the contention taken by the learned senior counsel regarding concoction of documents on the basis of belated submission of such documents including the statements of the accused before the learned Magistrate, with some ulterior motive.

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The seizure of two parcel on two different dates which were containing commercial quantities of MDMA pills and cocaine is not in serious dispute. The contraband were also tested by using test kit, which prima facie confirms the contraband as explained. Of course, both the parcels were addressed to accused No.1 and not to accused No.2. But it is the contention of prosecution that the parcel was containing the phone number which belongs to the petitioner. Accused No.2 had accompanied accused No.1 to the post office at Sahakarnagar and was

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waiting in the car while accused No.1 went to the post office, apparently to enquire about the parcel addressed to her. On the basis of information given by accused No.1, NCB officials found accused No.2 in the car and when they introduced themselves, accused No.2 said to have started running away even causing injuries to one of the officials. A separate criminal case in that regard is registered against the petitioner in Kodigehalli Police Station. There was seizure of one more parcel when accused Nos.1 and 2 were in the custody of NCB. All these facts and circumstances support the contention of prosecution made against the petitioner. Moreover, the whatsapp chats said to have been held between accused Nos.1 and 2 referring to one another with secret names is also one of the circumstance as the said chats were produced before this Court and there is reference to thousands of rupees, parcel, meeting near the road, collecting of stuffs from the post office etc.,

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It is also the contention of prosecution that the

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house which was in the occupation of the petitioner was searched and found two passports, document relating to the vehicle and SBI classic visa card. It is stated that the passport held by the petitioner is a fake one and one more criminal case under the provisions of the Foreigners Act is registered against him with D J Halli Police Station. It is also stated that the account in SBI standing in the name of one Mugmami Esther Awsi is suspected to be a fictitious person and the account was being handled by accused No.2. It is said that Rs.1.14 crores was transferred to this account by accused No.3, who explained in his statement that the same is towards purchase of drugs from accused No.2. These clinching materials cannot be ignored at this stage to conclude that the petitioner is in no way concerned to the offences in question. The prosecution is relying on small and tiny circumstances to connect the petitioner to the offences in question, but when all the dots are joined together it will lead to a reasonable conclusion

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regarding involvement of the petitioner in the offences in question.

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Even though both the parcel were addressed to accused No.1, at this stage, the petitioner cannot contend that he is no way concerned to the said parcels. It is the specific contention of prosecution that the phone number mentioned on the parcel is that of the petitioner. If the petitioner was not concerned to the parcel in question, he going along with accused No.1, waiting in the car near the post office, trying to escape even at the risk of causing injuries to NCB official, would not have arisen at all. These circumstances cannot be ignored at this stage.

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In Tofan Singh (supra), the Hon’ble Apex Court, per majority, held that the powers conferred on officers empowered under Section 53 of NDPS Act are such that they meet the test of being police officers for the purpose of Section 25 of the Evidence Act. The officers empowered under Section 53 of NDPS Act are vested with all the powers of investigation and power to file police

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report in respect of the offences under NDPS Act. Any statement made to such officer during the course of inquiry or investigation thus can qualify as a confessional statement. However, any confessional statement made before such officers attract the bar under Section 25 of the Evidence Act subject to Section 53(A) of the NDPS Act.

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In the present case, it is the specific contention of the prosecution that on the basis of information given by the accused in their statements recorded on 20.12.2020, the second parcel arrived in the foreign post office, Chamrajpet and the same was seized on 21.12.2020. Under such circumstances, it amounts to

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discovery of facts on the basis of information given by the accused. However, it is the contention of learned senior counsel that the petitioner has not given any information which has led to recovery of the parcel in question and the statements were concocted by the Investigating Officer. It is also contended that the parcel in question was seized

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much earlier to 20.12.2020 and the same was withheld by the Investigating Officer.

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Learned CGSC produced additional documents to show that the first parcel was seized in the foreign post office on 17.12.2020. Accused Nos.1 and 2 were apprehended near the post office at Sahakarnagar on 18.12.2020. Statements of accused Nos.1 and 2 were recorded on 20.12.2020 and the second parcel was seized on 21.12.2020. In the meantime, the Malkhana register shows that the first parcel was deposited on 17.12.2020 and the second one was deposited on 21.12.2020. The godown receipt discloses that the package P4 along with packing materials P5 containing goods as described in the mahazar dated 21.12.2020 seized at the foreign post office, Chamrajpet was received and entered in the godown register on 21.12.2020 at 14.45 hours. As per the seizure mahazar, the panchanama drawn in the foreign post office, Chamrajpet was drawn between 11.00 to 13.00 hours. A detailed seizure report is submitted by the

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Investigating Officer to the Assistant Director, NCB on 22.12.2020 and all the relevant documents along with the requisition for certifying the inventory as required in view of the direction of Mohanlal (supra) was submitted to the learned Magistrate on 23.12.2020. If the contention of learned senior counsel regarding concoction of documents and unreasonable delay in submitting the mahazar and the contraband before the learned Magistrate is considered in the light of these sequence of events, I do not find any support for such concoction of documents and the same is to be rejected out rightly at this stage. The submission of the learned CGSC that all the relevant documents including reports regarding Jamatalashi and Malkhana register were submitted before the learned Magistrate as a part of final report assumes importance. Therefore, I am of the opinion that the Intelligence Officer being the Investigating Officer has followed the procedure contemplated under law. I do not find any unreasonable delay or concoction of any materials as contended by the learned senior counsel.

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31. In Mohanlal (supra), the Hon’ble Apex Court

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considered the factual situation that even though the Standing Order No.1/1989 was issued on 13.06.1989 prescribing the procedure to be followed for seizure, safe keeping and disposal of the seized drugs and necessary instructions were also issued to follow the standing order strictly, required facilities to adhere to the standing order were not made available. In that regard, the Hon’ble Apex Court had issued directions vide its order dated 03.07.2012 in Union of India Vs Mohanlal and another⁴ for collection of information regarding seizure, storage, disposal and destruction of the seized contraband and regarding the judicial supervision over the same. After getting necessary information, the Court issued the directions at para 31 regarding the seizure of the contraband as under:

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“31. To sum up we direct as under:

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4 2012 7 SCC 712

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31.1. No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the magistrate as discussed in paras 15 to 19 of this order.

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Therefore, it is clear that in view of Section 52A of NDPS Act, the seized contraband is directed to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of NDPS Act, who is also authorized to prepare an inventory as stipulated in the said provision and make an application to the Magistrate for the purpose of certifying

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the correctness of the inventory, photographs of such drugs and substance or to draw representative samples and also to certify the correctness of list of sample so drawn. The word ‘no sooner’ used in the direction is a relative term and it cannot be stated that the very next moment the procedures are to be followed. I am of the opinion that such procedures are to be followed within a reasonable time under the facts and circumstances of each case.

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Section 53 of NDPS Act deals with the power to

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the Investigating Officer of certain Departments with powers of officer in-charge of police station for which a Notification is to be published in the Official Gazette of the Government concerned. In the present case, the officer who conducted search and seizure is the authorized officer of the rank of Intelligence Officer. Moreover, the documents that are produced before the Court by the learned CGSC disclose that soon after seizing of the contraband, the substances were deposited in the

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Malkhana meant for storage of such substance. When the Act contains sufficient checks and balances to ensure compliance of the procedure contemplated therein and the prosecution produces materials to prima facie show compliance of such procedure, the same cannot be ignored to form an opinion that the officers have concocted the documents to show such compliance. Such an opinion would be against the spirit of presumption as contemplated under Section 114(e) of the Evidence Act. Of course, if the accused could demonstrate from the materials on record that there is non compliance of such procedure, an adverse inference could definitely drawn against the Investigating Officer even though he is the responsible officer.

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When the prosecution is successful in placing reasonable materials to contend that the commercial quantity of contraband under the Act was seized, which could be related to the accused and when Section 27A of NDPS Act is also invoked against the accused, Section 37(1)(b)(ii) of NDPS Act comes into operation. The twin

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requirements under sub-clause (ii) is to be satisfied before proceeding to allow the bail application filed by the accused.

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35. In State of Kerala and Others Vs Rajesh

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and Others⁵ , the Hon’ble Apex Court once again considered the requirements of Section 37(1)(b) of the NDPS Act, while dealing with bail application filed by the accused and referred to its earlier decision in Ram Samujh (supra) and held that satisfaction of twin requirements under Section 37(1)(b) of NDPS Act is sinequa-non for grant of bail. It is appropriate to extract paras 19 and 20 of the said judgment, which read as under:

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“19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the

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5 (2020) 12 SCC 122

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negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

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20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under Cr.P.C, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the

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matter of bail under the NDPS Act is indeed uncalled for.”

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(Emphasis supplied)

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Thus, the position of law is well settled that the satisfaction of twin requirements as provided under Section 37(1)(b)(ii) of NDPS Act is sine-qua-non for releasing the person accused of commission of offence involving commercial quantity, even after providing opportunity to the Public Prosecutor to oppose the application for such release. Therefore, the intention with which Section 37(1)(b)(ii) of NDPS Act is inserted in the Act is to be taken into consideration while dealing with offences referred to in the section.

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Secret information was said to have been received which led to the seizure of first parcel which was containing MDMA pills of commercial quantity. Accused Nos.1 and 2 were apprehended when they came to the post office at Sahakarnagar to collect the said parcel. The parcel was addressed to accused No.1. It was containing

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the phone number of accused No.2. Both the accused were interrogated and information were collected by them. The information so collected led to seizure of second parcel in Foreign Post Office at Chamrajpet, containing cocaine which is of commercial quantity. Both the substances were tested at the spot with the test kit and proved to be the contraband as referred to above. The seized substance along with the seizure mahazar and other documents were produced before the learned Magistrate with a request to take inventory. The learned Magistrate passed an order permitting the Intelligence Officer to produce the contraband for inventory and accordingly the same was produced. Sample was drawn and necessary certificates were appended. The samples were forwarded to FSL for chemical analysis. After investigation, the final report in the form of complaint is already filed which contain all the necessary documents which are sufficient to form an opinion against the accused. At this stage, it cannot be concluded that there are any reasonable grounds for believing that the petitioner is not guilty of

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such offence and that he is not likely to commit any offence while on bail. Therefore he is not entitled for grant of bail.

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Even though the learned senior counsel contended that accused No.3 is already enlarged on bail and that the petitioner is entitled for benefit of parity, the same cannot be accepted in view of the fact that the allegation against accused No.3 is entirely different. It is stated that accused No.3 used to purchase huge quantity of contraband from the petitioner and had transferred crores of rupees in his favour through his bank account. Therefore, the benefit of parity cannot be extended to accused No.2 to enlarge him on bail.

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38. In view of the discussions held above, I answer

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the above point in ‘Negative’. As a result, the petition is

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dismissed.

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Sd/JUDGE

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*bgn/-

Emmanuel Michael v. Union of India

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Emmanuel Michael v. Union of India

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