Bail applications by two accused in a case of transporting 137.212 kg of ganja, a commercial quantity. The court held that the absence of an FSL report and non-compliance with NCB Standing Instructions No.1/88 are not grounds for bail, that prima facie material sufficed, and dismissed both petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON’BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION No.5969 OF 2021
C/W CRIMINAL PETITION NO.3320 OF 2021
IN CRL P NO.5969 OF 2021:
BETWEEN :
ANSAF K.B. S/O ANDHUNHI AGED ABOUT 26 YEARS R/AT KEDUBADY HOUSE MANJESHWAR, PAVOOR POST KASARGOD, KERALA-671 323.
… PETITIONER
(BY SRI: LETHIF B., ADVOCATE)
AND :
THE STATE OF KARNATAKA THROUGH THE POLICE INSPECTOR E AND N CRIME POLICE STATION MANGALURU CITY REPRESEBTED BY SPP HIGH COURT BUILDING BENGALURU-560 001.
… RESPONDENT
(BY SRI: K.S.ABHIJITH, HCGP)
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IN CRL P NO.3320 OF 2021:
BETWEEN :
KALANDAR MOHAMMAD SHAH S/O V.KI. SIDDIQ AGED ABOUT 35 YEARS R/AT KHALANDAR MANZIL NEAR PATHWADI BADRIA JUMMA MASJID UPPALA, KASARAGOD KERALA-671 322.
….PETITIONER
(BY SRI: B.LETHIF, ADVOCATE)
AND:
THE STATE OF KARNATAKA THROUGH THE POLICE INSPECTOR E AND N CRIME POLICE STATION, MANGALURU CITY REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU-560 001.
…RESPONDENT
(BY SRI: K.S.ABHIJITH, HCGP)
THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN CR.NO.22/2020 OF E AND N CRIME P.S., MANGALURU CITY FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 8(C), 20(B)(ii)(c) OF NDPS ACT.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS TODAY, THE COURT PASSED THE FOLLOWING:
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COMMON ORDER
The petitioners-accused Nos.1 and 3 are before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.22/2020 of E and N Crime Police Station, Mangaluru city, registered for the offences punishable under Sections 8(c), 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), on the basis of first information lodged by the informant Kabbal Raj.
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as per the instructions of higher officers proceeded to pump well junction along with the Gazetted Officer and panchas. They noticed the pickup vehicle and the swift car in question coming from Bengaluru and gave signal to stop the same. Instead of stopping, both the vehicles sped towards Nanthuru junction, which were chased by the police and the information was also given for the other police officials who were on patrolling duty. As a result of which, a barricade was put and both the vehicles were waylaid near the road divider and two persons who were in the car managed to run away, while two persons in the pickup vehicle were surrounded by the police. They were accused Nos.1 and 2. The vehicle was loaded with bananas. Accused Nos.1 and 2 were enquired in the presence of Gazetted Officer and panchas and they revealed that they are transporting ganja in three different bags concealed under bananas. The bags were verified which were containing different packets of ganjas. Those packets were separately weighed and seized under the mahazar. Accused Nos.1 and 2 gave information that
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accused Nos.3 and 4 were in the swift car who ran away from the spot and one bag containing ganja is kept in the car. Accordingly, when the car was searched, a bag containing 15 packets of ganja was found. Those packets were also weighed separately and seized under the mahazar. It is stated that there were in all 137.212 kgs of ganja valued at Rs.12,60,000/-. The accused were not having any licence or permit to transport the same. It was found that the accused were transporting the same to Kerala after purchasing it in Vishakapatnam and transported through Bengaluru-via-Mangaluru. Therefore, it is stated that accused Nos.1 to 4 were found in possession and transporting commercial quantity of ganja and thereby, contravened Section 8(c) and committed the offence punishable under Section 20(b)(ii)(C) of NDPS Act.
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Inspector of Customs Vs MS Daphira Wallang1 and
contended that if the chemical analysis report is delayed, the accused are entitled to be enlarged on bail. Learned Counsel also relied on the Standing Instructions No.1/88 issued by Narcotics Control Bureau, New Delhi, to contend that the chemical analysis report is required to be secured within 30 days, failing which, the accused are entitled to be enlarged on bail.
1 ILR 2010 KAR 190
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Investigating Officer, the cognizance for the offence is not taken by the learned Magistrate, as the FSL report is not produced to prima facie show that the articles seized is the contraband as contented by the prosecution. Under such circumstances, the petitioners are not required to be detained in custody and their detention in custody would amount to pre-trial punishment. He further contended that the petitioners are not having criminal antecedents and they are the permanent residents of the addresses mentioned in the cause title to the petition and are ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, he prays for allowing the petitions.
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question is prima facie classified as ganja by the officials who were trained in identifying the same as the informant and other officials are from Narcotic Crime Police Station, which is a special cell for the purpose under the special enactment. Huge quantity of ganja weighing 137.212 was seized in the presence of panchas and the Gazetted Officer. The sample was drawn and the same is sent for chemical examination. The report is still awaited. In the meantime, the accused were questioned and their statements were recorded. The accused have confessed regarding commission of the offence and gave details of other accused who are involved in the case. The information collected from accused Nos.1 and 2 led the Investigating Officer to apprehend accused Nos.3 and 4 and in seizing the contraband. Under such circumstances, it cannot be said that there are no prima facie materials to connect the accused to the offence in question.
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Investigating Officer in drawing/storing/testing and in disposal of samples of narcotic drugs and it is directory in nature. It is not mandatory to enable the accused to take advantage of the same for the purpose of enlarging on bail ignoring all other prima facie materials. Since the contraband seized is of commercial quantity weighing 137.212 kgs, Section 37(1)(b)(ii) of NDPS Act comes into operation and since there are prima facie materials which are sufficient for the present to connect the accused to the offence in question, prays to reject these petitions.
2 (2020) 12 SCC 122
3 (1999) 9 SCC 429
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twin requirements under Section 37(1)(b) is sine-qua-non for grant of bail.
4 Crl.P.No.7386/2020 DD 06.02.2021
5 (2000) 9 SCC 549
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cannot be ignored at this stage. Therefore, he contends that this Court cannot form an opinion to the effect that the accused are not guilty of such offence and that they are not likely to commit any offence while on bail. Unless the Court is satisfied with these two requirements, the accused are not entitled for grant of bail. Accordingly, he prays for dismissal of the petitions.
“Whether the petitioners are entitled for grant of bail under Section 439 of Cr.P.C.?”
My answer to the above point is in ‘Negative’ for the following:
R E A S O N S
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dealing with narcotic drugs and its easy availability would attract the youngsters, especially the students and within no time they would be addicted to it. The same would have an impact on the younger generation in particular and on the society as a whole. But it is found that the required number of forensic labs are not being established to cater to the need of the day.
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authority. The Standing Order/Instructions/Guidelines cannot override the effect of the statute or it cannot impose some more conditions or requirements which are not there in the statute. NCB as guidelines to the Investigating Officer suggested to secure the FSL report within a maximum period of 30 days, only on the ground that some of the Courts may reject the prayer of the investigating authority to extend custody of the accused on the sole ground that the FSL report is not made available. It is under such circumstances, the Instruction in question was issued. The same cannot be relied on by the Court to enlarge the accused on bail, when the prosecution is relying on other materials to substantiate its contentions that the seized substance is in fact narcotic drugs or psychotropic substances.
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reasonable doubt. Under such circumstances, producing FSL report before the Court during trial is inevitable. But now it is only the stage to consider the bail application filed by the petitioner. At this stage, the prosecution is not required to place materials to prove the guilt of the accused, muchless, the same beyond reasonable doubt. It is only the reasonable grounds which are to be weighed to form an opinion as to whether the accused is entitled to be enlarged on bail or not. This is not the stage to ignore the materials that are collected by the Investigating Officer and placed before the Court. That being the situation, there is absolutely no reason to ignore clinching materials that are placed before the Court by the Investigating Officer that the seized substance is in fact the contraband as specified in the records. Prima facie materials which suggest that the substance is the contraband as specified in the seizure mahazar, coupled with the statements of witnesses and the information provided by the accused which led to such seizure, cannot be ignored at this stage. Therefore, I am of the opinion that non compliance of the
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guidelines found in the Standing Instructions issued by NCB, New Delhi referred to by the learned counsel for the petitioners, cannot be the sole basis to seek bail.
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the date of receipt of the sample is an ideal situation but it is next to impossibility, as required number of Forensic Labs are not established and no such facilities are made available to the existing Labs to equip them to analyse the samples and forward the report within such short period of time. Of course, if there are no materials to constitute the offence and the Court forms an opinion that there are no reasonable grounds to believe that the accused is guilty of such offence, definitely the accused will be entitled to be released on bail. But that does not mean to say that the Court must ignore all other materials and only insist for FSL report.
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satisfaction of the Court regarding reasonableness of the materials on record for believing that the accused is or is not guilty of the offence(s) in question. This finding is for a limited purpose for disposal of the bail application filed by the accused and not for any other purposes.
“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
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operative part of the said section is in the 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.
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
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the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.”
(Emphasis supplied)
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.
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accused Nos.1 and 2, the Investigating Officer could also apprehend accused Nos.3 and 4 who were said to have been traveling along with accused Nos.1 and 2 and on seeing the police have ran away from the spot. The contraband was seized under the seizure mahazar in the presence of panchas. Samples were drawn and forwarded to forensic lab for analysis. It is admitted that the report is still awaited. It is stated that the charge sheet is filed by the Investigating Officer. Under this situation, the contention of learned counsel for the petitioners that there is absolutely nothing on record to hold that the seized substance is contraband which could be classified as ganja and Section 37(1)(b) of NDPS Act is not attracted to the facts of the case, cannot be accepted.
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concealed in three separate bags. The first bag was containing 18 packets, second and third were containing 15 packets each. Similarly, in the swift car one bag was found which was containing 15 packets with similar seeds and leaves of ganja and total substance was weighing 137.212 kgs of ganja.
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were seized in the presence of Assistant Commissioner of Police, who is a Gazetted Officer.
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which was following the pickup vehicle. This information provided by accused Nos.1 and 2 led to seizure of the substance from the vehicles. The fact that the substance was secretly hidden under the bananas and accused Nos.3 and 4 running away from the spot abandoning the vehicle, are also the circumstances to be taken into consideration at this stage. These are the reasonable grounds that are relied on by the prosecution at the time of considering the bail application of the petitioners.
materials are to be ignored only on the ground that the FSL report is not yet received. The plain language of Section 37(1)(b) of the NDPS Act, means that the Court must start with a negative approach towards granting bail to the accused of the offence involving commercial quantity and only after satisfying itself that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any
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offence while on bail, can proceed to order for releasing the accused on bail.
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not enable this Court to form such opinion in favour of the accused.
“(I).The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
6 AIR 2020 SC 3255
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(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances;
(III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;
(IV). Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification stand dismissed.”
(Emphasis supplied)
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Note 4 of the Notification dated 19.10.2001 reads as
under:
“The quantities shown in column 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substance of the particular drug in dosage form or isomers, esters, ethers and salts or these drugs, including salts or esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.”
Thus, the position of law is very well settled in view of the above and therefore, quantitative analysis of the substance to find out the pure quantity of the contraband is not the requirement of law to bring the substance within the ambit of commercial quantity and the contention of the learned counsel for the petitioners which is against this settled proposition of law, is to be rejected.
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having the fundamental right to life and liberty under Article 21 of Constitution of India, the same is subject to reasonable restrictions and it is not an unfettered right. When the interest of the society is at stake due to the conduct of the accused, detention of such person in custody is preferred keeping in mind the larger interest of the society. It is with this view in mind, Section 37(1)(b) of NDPS Act is enacted. The object of the Act is to safeguard the society and its citizens. It cannot be said that Section 37(1)(b) is without any safeguards in favour of the accused. Sufficient checks and balances are provided in the special enactment to compel the Investigating Officer to follow the procedures as contemplated under law. This will prevent the abuse of the authority given under the enactment and it will also safeguard the interest of the accused.
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yet taken, as the FSL report is not made available to confirm that the substance seized is contraband as described by the Investigating Officer. Under Section 190 of Cr.P.C. the Magistrate is required to take cognizance on receipt of a complaint of facts which constitute an offence, or upon a police report of such facts or upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Before issuing process to the accused under Section 204 of Cr.P.C. the Magistrate has to form an opinion that there are sufficient grounds for proceeding against the accused. Under Section 227 of Cr.P.C. i.e., after securing the presence of the accused, the Magistrate is once again required to consider the materials on record and after hearing the accused and the prosecution, to form an opinion as to whether there is or not sufficient ground for proceeding against the accused. If no such grounds are made out, the accused will be entitled for discharge. Therefore, while taking cognizance, it is only the prima facie materials to constitute an offence are sufficient. The
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Court cannot consider that the FSL report is the only material to constitute the offence under NDPS Act. I do not find any reason to ignore all other materials that are relied on by the prosecution, to allow the bail application.
“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
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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)
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the petitioners are not entitled to be enlarged on bail. Hence, I answer the above point in ‘Negative’.
In the result, both the petitions are dismissed.
Sd/JUDGE
*bgn/-
3 issues framed by the court
Whether the petitioners are entitled to bail under Section 439 Cr.P.C. in a case involving commercial quantity of ganja under the NDPS Act?
Whether non-receipt of the FSL report and non-compliance with NCB Standing Instructions No.1/88 entitle the accused to bail?
Whether quantitative analysis excluding neutral substances is required to bring the seized substance within commercial quantity?
Colour shows how this judgement treated each authority
Inspector of Customs Vs MS Daphira WallangReferred¶5
ILR 2010 KAR 190 · Who else cites this
State of Kerala and Others Vs Rajesh and OthersRelied on¶19
(2020) 12 SCC 122 · Who else cites this
Union of India Vs Ram Samujh and AnotherReferred¶19
(1999) 9 SCC 429 · Who else cites this
Sri.Mohmed Ali Tojori Vs State of KarnatakaReferred¶10
Crl.P.No.7386/2020 DD 06.02.2021
Supdt. Narcotics Control Bureau, Chennai Vs R.PaulswamyRelied on¶30
(2000) 9 SCC 549 · Who else cites this
Hira Singh Vs Union of IndiaRelied on¶27
AIR 2020 SC 3255 · Who else cites this
9 provisions across 3 enactments
Ansaf K.B.
Kalandar Mohammad Shah
State of Karnataka
M.G. Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
