Dismissed

Mohammad Haidar v. Union of India

Karnataka HC12 Mar 2021CRL.P/7548/2020

Case brief

AI extract

What is this about?

In the second bail application under Section 439 Cr.P.C., the High Court held that since the FSL report showed drug content (3.75 gms) within a total seized weight of commercial quantity, Section 37 NDPS Act applied. Citing Hira Singh, the court rejected the argument that only active drug content mattered. Bail petition was dismissed.

What did the court decide?

Bail petition dismissed as no reasonable grounds were made out and Section 37 of NDPS Act is applicable due to commercial quantity.

Mohammad Haidar 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 12^TH DAY OF MARCH 2021

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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CRL. P. NO. 7548/2020

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BETWEEN:

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MOHAMMAD HAIDAR, S/O ISHAQU PUZHAKKALAKATH, AGED ABOUT 21 YEARS, R/AT KHYRU MANZIL, CHETTIPADI POST, MALAPPURAM, KERALA – 676319.

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PETITIONER

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(BY SRI MRC MANOHAR, ADVOCATE)

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AND:

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UNION OF INDIA, NARCOTICS CONTROL BUREAU, BANGALORE ZONAL UNIT, REP.BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560001.

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RESPONDENT

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(BY SRI MADHUKAR 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 CR.NO.48/1/6/2020/BZU BY NCB POLICE, BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION 22, 23 AND 29 OF N.D.P.S. ACT & ETC.

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THIS CRIMINAL PETITION PERTAINING TO PRINCIPAL BENCH, BENGALURU HAVING BEEN HEARD AND RESERVED FOR ‘ORDERS’ ON 05.03.2021 COMING ON FOR ‘PRONOUNCEMENT OF ORDERS’ THROUGH VIDEO CONFERENCING AT DHARWAD BENCH, THIS DAY, THE COURT MADE THE FOLLOWING:

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: 2 :

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ORDER

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This is the second application for bail by the petitioner u/s 439 Cr.P.C., his earlier bail petition, i.e., Crl. P. No. 3571/2020 was dismissed on 08.09.2020.

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It is not necessary to narrate the facts again, suffice it to say that he is implicated of having committed offences punishable u/s 22, 23 and 29 of The Narcotic Drugs Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and FIR came to be registered against him in Crime No. NCB.F.48/1/6/2020, in connection with receipt of unregistered parcel from Netherlands addressed to one Sijah:Siddharth Premkumar at Foreign Post office, Chamarajpet, Bengaluru. The parcel contained 25 gms of MDMA ecstacy tablets. The prosecution case is that it was to the petitioner the said parcel was actually sent, the addressee was just a name lender to the petitioner.

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I have heard the arguments of Sri M.R.C.Manohar, learned counsel for the petitioner and Sri Madhukar Deshpande, learned counsel for the respondent.

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Sri M.R.C. Manohar, submitted that when the earlier application for bail was dismissed, FSL report was not available and the Court was of the opinion that the total quantity of the Narcotic substance was a commercial quantity. Now FSL report is available, according to it, the percentage of the narcotic substance is only 3.75 gms, which is a intermediary quantity. Sec.37 of NDPS Act is not applicable. Moreover, the petitioner has been implicated only on the basis of statements u/s 67 of the NDPS Act, about which the Hon’ble Supreme Court in the case of Toofan Singh Vs. State of Tamil Nadu (2020) SCC online SC 882

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has held that, it is hit by Sec. 25 of the Evidence Act. Therefore, the petitioner has made out a ground for releasing him on bail. He also submitted that the petitioner is a student and his presence is not at all necessary for investigation purpose.

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Sri Madhukar Deshpande, referring to the statement of objections filed by him to the main petition contended that

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the petitioner has not made out a changed circumstance for maintaining the second petition for bail. FSL report says that 14% of narcotic substance was detected in the sample sent to the FSL for chemical examination. The parcel was addressed to Sijah:Siddharth Premkumar, his statement shows that the contraband substances was actually sent to the petitioner. The revelation made by Sijah:Siddharth is nothing but discovery of fact within the meaning of Sec.27 of the Indian Evidence Act. In fact, the word ‘Sijah’ is a code word indicating thereby that the parcel belonged to the petitioner. Therefore, the statement u/s 67 can be acted upon. He further submits that the actual drug content in the seized substance cannot be the criteria, even the neutral substance should be taken into consideration to arrive at a conclusion whether the seized substance answers commercial quantity or not. In support of his argument, he has placed reliance on the judgment of the Supreme Court in the case of Hira Singh and another Vs. Union of India and another reported in 2020 Cri.L.J. 3677 .

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Though Sri M.R.C. Manohar has referred to the judgment of the Supreme Court in Toofan Singh case, it may be stated that in the said case, the applicability of Sec. 67 arose from a case which was decided after holding trial. At the stage of deciding bail application, the materials that could be looked into are, the FIR, the charge sheet, if investigation is completed; statements u/s 161 Cr.P.C., the panchanamas, the voluntary statements leading to discovery of a fact as envisaged under Section 27 of the Indian Evidence Act, etc. It is only after holding trial a clear conclusion can be drawn whether the discovery based on the voluntary statement or the confession statement is to be believed or not. While deciding bail application, a detailed examination is unwarranted. So, to this extent the statement u/s 67, if discovery of a fact can be made out, can be acted upon. In fact, to this effect, I have already expressed the opinion while disposing of Crl. P. No. 3571/2020.

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But now FSL report is available, it was not available when the petitioner’s first bail application was decided. According to the FSL report, the total percentage of the drug content in the seized substance is 14%, in this view, in the total quantity of the seized substance, the drug content is 3.75 gms. But, in view of the judgment of the Supreme Court in the case of Hira Singh , neutral substance cannot be excluded and therefore the seized substance is commercial quantity. Therefore, I find that the petitioner has not made out a reasonable grounds for claiming bail. Reasonable ground is something more than making out a prima facie case for bail. Sec. 37 of the N.D.P.S. Act is applicable and hence I find no case for granting bail. Bail petition is dismissed.

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Sd/JUDGE

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bvv

Mohammad Haidar v. Union of India

Case brief

What is this about?

What did the court decide?

Mohammad Haidar v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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