Mohammed Irfan Son of MoidIn and ors. Vs. the State of Karnataka and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/925438
SubjectCriminal
CourtKarnataka High Court
Decided OnMar-28-2012
Case NumberCRL.P. No. 1223 of 2012 CW CRL.P.No. 1224 of 12 AND CRL.P.No. 1627 of 12
JudgeK.N.KESHAVANARAYANA, J.
ActsCode of Criminal Procedure (CrPC) - Section 439, 167(2) ; Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985 - Sections 8, 20B, 36A(4), 19, 24, 27-A
AppellantMohammed Irfan Son of MoidIn and ors.
RespondentThe State of Karnataka and ors.
Advocates:Sri. Amar Correa, Adv
Excerpt:
[k.n.keshavanarayana, j.] code of criminal procedure (crpc) - section 439, 167(2) - special powers of high court or court of session regarding bail -- this criminal petition no. 1627/12 is filed under section 439 cr.p.c. praying to release the petitioner on bail in crime.no.242/2011 of manipal police station (earlier crime no.9/11 coastal security police, malpe) for the offences punishable under sections 8 and 20-b of ndps act.1. in all these 3 petitions filed under section 439 cr.p.c. since the petitioners are seeking the relief of bail in connection with case in crime no.242/1 1 of manipal police station registered for the offences punishable under sections 8 and 2043 of the narcotic drugs & psychotropic substances act, 1985 (for short " the ndps act"), they were heard together and are being disposed of by this common order.2. the petitioner in crl.p.nos. 1223 and 1224 of 2012 is one and the same. he has been arrayed as accused no.2. the petitioner in crl.p.no. 1627/2012 has been arrayed as accused no. 1. these petitioners along with others are accused of having possessed brown sugar weighing about 1 kg. valued at rs. 1.65.00,000/-.3. according to the case of the prosecution, at about 8.15 p.m. on 4.11.2011, p.m.diwakar. police sub inspector of coastal police station, malpe received a credible information about few persons selling and buying brown sugar near paradise resort situated close to malpe beach; immediately, he secured the presence of panchas, apprised than about the information received, thereafter along with panchas and the staff, proceeded to the place; while they were waiting near the causality section of kmc hospital, manipal at about 10.15 p.m. they saw a rickshaw being parked; at about 10.30 p.m.. car bearing registration no.ka-04-md-4115 came there with four persons and at the same time two persons came there on a motor cycle bearing registration no.ka-20-b-8411; when all of them were discussing and exchanging some articles, the police raiding party surrounded them. however, out of them few ran away while others were apprehended and they were found in possession of brown sugar, which was seized later. the petitioners herein along with others, were apprehended and brought to the police station. subsequently, the case was transferred to manipal police station on the point of jurisdiction. since the investigation officer did not file final report within 90 days, accused no.2 filed petition under section 167(2) of cr.p.c. seeking relief of bail while accused no. 1 filed application under section 439 cr.p.c. seeking relief of bail. the learned special judge rejected both the petitions and also made certain observations in the course of the order as to the manner in which the investigation has been committed. it is not necessary for me to refer to those observations nor it is necessary for this court to make any further observations thereon.4. alter the rejection of their petitions by the learned special judge, the petitioners have presented these petitions. accused no.2 has alternatively also has filed application under section 439 cr.p.c. before this court seeking bail on merits. all these petitions have been opposed by the respondent - state. i have heard both sides. perused the records made available.5. at this stage, it is submitted that the sample said to have been drawn from the substance stated to have been seized from the possession of the accused persons was sent to fsl, bangalore for chemical analysis and the chemical analysis report submitted by the fsl was in the negative. however, learned state public prosecutor submitted that in order to obtain a second opinion having regard to the peculiar circumstance, steps are being taken to send samples to the truth lab, bangalore and the report from the said lab is awaited.6. the application under section 167(2) cr.p.c. filed by accused no.2 was rejected on the ground that under section 36-a(4) of the ndps act, the period of 90 days occurring under section 167(2) cr.p.c. is extended to 180 days in respect of the offences punishable under sections 19, 24 or 27-a of the ndps act, involving commercial quantity, and the quantity said to have been seized from the possession of the accused persons was falling within the commercial quantity. however, it is the contention of the petitioner - accused no.2 that as per the law laid down by the apex court in the case of e.micheal raj vs. intelligence officer, narcotic control bureau reported in 2008 air scw 2385, the total weight of the substance seized is not relevant but it is only the percentage of substance, which is relevant for the purpose of considering the question as to whether the quanta of the substance falls within a commercial quantity ot intermediate quantity or small quantity. reliance was also placed on the decision of the apex court in the case of samt ullaha vs. superintendent narcotic central bureau reported in (2010) 3 scc (cri) 793 wherein the apex court has held that even at the stage of consideration of the application for bail, to decide whether the applicant is entitled for bail or not on the basis of the question whether the substance seized falls within the commercial quantity or otherwise, the percentage of the substance found in the contraband article seized is relevant and the same is required to be taken into consideration. in the light of these two decisions, it was contended that even while considering the application filed for bail under section 167(2) of cr.p.c. the court is required to consider as to whether the substance said to have been seized from the accused persons falls within the commercial quantity to deny the bail under the said provision by extending the benefit of provisions of section 36-a(4) of the ndps act.7. i see considerable force in the above contention. no doubt, as per section 36-a(4) of the ndps act in respect of the offence involving commercial quantity, the period for filing final report is extended to 180 days as against 90 days prescribed under section 167(2) cr.p.c.however, in the light of the law laid down in sami ullaha's case (supra), when an accused person seeks bail under section 167(2) cr.p.c. even in respect of any of the offences under sections 19, 24 or 27-a of the ndps act on the ground of default in filing the final report within the prescribed period of 90 days, before applying the benefit of sub-section (4) of section 36-a of the ndps act, the court has to prima facie record a finding as to whether or not the weight of the substance said to have been seized falls within commercial quantity. it is only if the court finds prima facie material to indicate that the substance seized falls within commercial quantity, the benefit of sub-section (4) of section 36-a of the ndps act could be extended. for the purpose of finding out the question whether or not the total weight of the substance falls under commercial quantity, as ruled by the apex court in micheal raj's case referred to supra, the percentage of the substance in the contraband article seized is relevant for consideration. in the case on hand, though to the total weight of the contraband article said to have been seized from the possession of the accused persons was 1 kg., at this stage, there is no evidence to indicate as to what was the percentage of the objectionable substance found in the said article. in fact, as noticed supra, the report now available said to have been issued by the fsl shows a negative report to the effect that the sample sent for examination was sodium hydroxide and not a narcotic drug nor a psychotropic substance. therefore, at this stage, there are no prima facie materials to indicate that the total weight of the substance said to have been seized from the possession of the accused falls within commercial quantity. it is the prerogative of the investigating officer to send the samples for a second opinion and based on report that may be received, he is at liberty to take necessary steps. however at this stage, in the absence of any material to indicate that the article said to have been seized from the possession of the accused falls within commercial quantity, the benefit of extended period of 180 days as found in sub-section (4) of section 36-a of the ndps act cannot be extended. therefore, since admittedly the final report has not been filed within 90 days as required by section (2) of section 167 cr.p.c, the accused are entitled to be enlarged on bail on account of default committed by the investigating officer. in this view of the matter, without going into the merits of the case, the petitioners viz., accused nos.1 and 2 are entitled for the relief of bail subject to conditions.8. hence, crl.p.no. 1223/12 and crl.p.no. 1627/12 are allowed. accused nos.1 and 2 are ordered to be released on bail on each of them executing personal bond for rs.2 lakhs with two sureties for the like sum to the satisfaction of the learned special judge and subject to further condition that.i) the petitioners shall not tamper or terrorise with the prosecution witnesses in any manner;ii) the petitioners, for the purpose of investigation, shall appear before the investigating officer whenever called upon to do so and shall co-operate the investigation of the case;iii) they shall appear before the court as directed by it andiv) they shall not leave the jurisdiction of the special court at udupi, except for attending to the investigation on being called by the present investigator ss&tes^ie stated to be cid which is stationed at bangalore.
Judgment:

1. In all these 3 petitions filed under Section 439 Cr.P.C. since the petitioners are seeking the relief of bail in connection with case in Crime No.242/1 1 of Manipal Police Station registered for the offences punishable under Sections 8 and 2043 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short " the NDPS Act"), they were heard together and are being disposed of by this common order.

2. The petitioner in Crl.P.Nos. 1223 and 1224 of 2012 is one and the same. He has been arrayed as accused No.2. The petitioner in Crl.P.No. 1627/2012 has been arrayed as accused No. 1. These petitioners along with others are accused of having possessed brown sugar weighing about 1 kg. valued at Rs. 1.65.00,000/-.

3. According to the case of the prosecution, at about 8.15 p.m. on 4.11.2011, P.M.Diwakar. Police Sub Inspector of Coastal Police Station, Malpe received a credible information about few persons selling and buying brown sugar near Paradise Resort situated close to Malpe Beach; immediately, he secured the presence of panchas, apprised than about the information received, thereafter along with panchas and the staff, proceeded to the place; while they were waiting near the Causality Section of KMC Hospital, Manipal at about 10.15 p.m. they saw a rickshaw being parked; at about 10.30 p.m.. car bearing registration No.KA-04-MD-4115 came there with four persons and at the same time two persons came there on a motor cycle bearing registration No.KA-20-B-8411; when all of them were discussing and exchanging some articles, the police raiding party surrounded them. However, out of them few ran away while others were apprehended and they were found in possession of brown sugar, which was seized later. The petitioners herein along with others, were apprehended and brought to the Police Station. Subsequently, the case was transferred to Manipal Police Station on the point of jurisdiction. Since the investigation Officer did not file final report within 90 days, accused No.2 filed petition under Section 167(2) of Cr.P.C. seeking relief of bail while accused No. 1 filed application under Section 439 Cr.P.C. seeking relief of bail. The learned Special Judge rejected both the petitions and also made certain observations in the course of the order as to the manner in which the investigation has been committed. It is not necessary for me to refer to those observations nor it is necessary for this court to make any further observations thereon.

4. Alter the rejection of their petitions by the learned Special Judge, the petitioners have presented these petitions. Accused No.2 has alternatively also has filed application under Section 439 Cr.P.C. before this Court seeking bail on merits. All these petitions have been opposed by the respondent - State. I have heard both sides. Perused the records made available.

5. At this stage, it is submitted that the sample said to have been drawn from the substance stated to have been seized from the possession of the accused persons was sent to FSL, Bangalore for chemical analysis and the chemical analysis report submitted by the FSL was in the negative. However, learned State Public Prosecutor submitted that in order to obtain a second opinion having regard to the peculiar circumstance, steps are being taken to send samples to the Truth Lab, Bangalore and the report from the said Lab is awaited.

6. The application under Section 167(2) Cr.P.C. filed by accused No.2 was rejected on the ground that under Section 36-A(4) of the NDPS Act, the period of 90 days occurring under Section 167(2) Cr.P.C. is extended to 180 days in respect of the offences punishable under Sections 19, 24 or 27-A of the NDPS Act, involving commercial quantity, and the quantity said to have been seized from the possession of the accused persons was falling within the commercial quantity. However, it is the contention of the petitioner - accused No.2 that as per the law laid down by the Apex Court in the case of E.Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau reported in 2008 AIR SCW 2385, the total weight of the substance seized is not relevant but it is only the percentage of substance, which is relevant for the purpose of considering the question as to whether the quanta of the substance falls within a commercial quantity OT intermediate quantity or small quantity. Reliance was also placed on the decision of the Apex Court in the case of Samt Ullaha Vs. Superintendent Narcotic Central Bureau reported in (2010) 3 SCC (Cri) 793 wherein the Apex Court has held that even at the stage of consideration of the application for bail, to decide whether the applicant is entitled for bail or not on the basis of the question whether the substance seized falls within the commercial quantity or otherwise, the percentage of the substance found in the contraband article seized is relevant and the same is required to be taken into consideration. In the light of these two decisions, it was contended that even while considering the application filed for bail under Section 167(2) of Cr.P.C. the court is required to consider as to whether the substance said to have been seized from the accused persons falls within the commercial quantity to deny the bail under the said provision by extending the benefit of provisions of Section 36-A(4) of the NDPS Act.

7. I see considerable force in the above contention. No doubt, as per Section 36-A(4) of the NDPS Act in respect of the offence involving commercial quantity, the period for filing final report is extended to 180 days as against 90 days prescribed under Section 167(2) Cr.P.C.

However, in the light of the law laid down in Sami Ullaha's case (supra), when an accused person seeks bail under Section 167(2) Cr.P.C. even in respect of any of the offences under Sections 19, 24 or 27-A of the NDPS Act on the ground of default in filing the final report within the prescribed period of 90 days, before applying the benefit of sub-section (4) of Section 36-A of the NDPS Act, the court has to prima facie record a finding as to whether or not the weight of the substance said to have been seized falls within commercial quantity. It is only if the court finds prima facie material to indicate that the substance seized falls within commercial quantity, the benefit of sub-section (4) of Section 36-A of the NDPS Act could be extended. For the purpose of finding out the question whether or not the total weight of the substance falls under commercial quantity, as ruled by the Apex Court in Micheal Raj's case referred to supra, the percentage of the substance in the contraband article seized is relevant for consideration. In the case on hand, though to the total weight of the contraband article said to have been seized from the possession of the accused persons was 1 kg., at this stage, there is no evidence to indicate as to what was the percentage of the objectionable substance found in the said article. In fact, as noticed supra, the report now available said to have been issued by the FSL shows a negative report to the effect that the sample sent for examination was Sodium Hydroxide and not a Narcotic Drug nor a psychotropic substance. Therefore, at this stage, there are no prima facie materials to indicate that the total weight of the substance said to have been seized from the possession of the accused falls within commercial quantity. It is the prerogative of the Investigating Officer to send the samples for a second opinion and based on report that may be received, he is at liberty to take necessary steps. However at this stage, in the absence of any material to indicate that the article said to have been seized from the possession of the accused falls within commercial quantity, the benefit of extended period of 180 days as found in sub-section (4) of Section 36-A of the NDPS Act cannot be extended. Therefore, since admittedly the final report has not been filed within 90 days as required by Section (2) of Section 167 Cr.P.C, the accused are entitled to be enlarged on bail on account of default committed by the Investigating Officer. In this view of the matter, without going into the merits of the case, the petitioners viz., accused Nos.1 and 2 are entitled for the relief of bail subject to conditions.

8. Hence, Crl.P.No. 1223/12 and Crl.P.No. 1627/12 are allowed. Accused Nos.1 and 2 are ordered to be released on bail on each of them executing personal bond for Rs.2 lakhs with two sureties for the like sum to the satisfaction of the learned Special Judge and subject to further condition that.

i) The petitioners shall not tamper or terrorise with the prosecution witnesses in any manner;

ii) The petitioners, for the purpose of investigation, shall appear before the Investigating Officer whenever called upon to do so and shall co-operate the investigation of the case;

iii) They shall appear before the court as directed by it and

iv) They shall not leave the jurisdiction of the Special Court at Udupi, except for attending to the investigation on being called by the present Investigator ss&teS^ie stated to be CID which is stationed at Bangalore.