Qualitative and quantitative analysis is crucial in NDPS cases, and the presumption of culpable mental state under Section 35 of the NDPS Act is rebuttable.

1. This petition is filed under Section 439 Cr.P.C, to enlarge the petitioner on bail in O.R.No.4/2016-17, pending on the file of XXXIII Addl. City Civil and Sessions Judge and Special Court for NDPS Cases, Bengaluru (CIS-693/2016) (Special C.C. No. 148/2017)

2. Heard Shri. R. Sridhar, learned counsel for the petitioner and Shri.Jeevan J Neeralgi, learned Central Government Standing Counsel.

3. Briefly stated the facts of the case are petitioner filed shipping bills to export cargo of 'Non - Woven Shopping Bags' to Malaysia. The customs authorities based on intelligence information examined the cargo and found some white powder in hollow plastic handles of bags. Preliminary test conducted using narcotics Field Test Kit indicated possible presence of Methaqualone. The same was seized. Petitioner was summoned and his statement recorded. Samples of seized material was sent to Custom House Laboratory, Chennai for chemical analysis. After investigation, the respondent has filed the complaint before the Special Court for NDPS cases under Sections 36A(1)(d) of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short). The said complaint has been registered in Special C.C.No.148/2017. The statement of the petitioner was recorded on October 13 & 14, 2016 and he was formerly arrested on October 14, 2016. Since then, he is in custody.

4. Shri. R. Sridhar, learned counsel appearing for the petitioner arguing in support of this petition made following submissions:

(a) that, along with the complaint filed by the respondent under Section 36 A (1) (d) of the NDPS Act, the examination report dated March 7, 2017 issued by the Central Forensic Science Laboratory, Hyderabad ('CFSL' for short) is annexed; the said report shows that 'Methaqualone' was not detected, but Ketamine was detected in the samples. He contended that a mere statement by the examiner that Ketamine was detected is not in consonance with the law as held by the Hon'ble Rajasthan High Court in the case of Paramjit Singh and another v. Union of India, reported in 2000 CrLJ 100. He placed reliance on paragraph No.30 thereof and argued that the said judgment is based on a Division Bench judgment of Hon'ble High Court of Gujarat. In substance, he contended that the report must be categoric and contain details of tests conducted and the percentage of drug/concentration found;

(b) that, neither qualitative nor quantitative analysis of the sample was done and in the absence of these tests, respondent could not have filed the complaint at all. In support of this contention, he placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of E. Micheal Raj v. Intelligence Officer, Norcotic Control Bureau reported in (2008) 5 SCC 161;

(c) that, the samples, which were sent to the CFSL were earlier opened by the Custom House Laboratory, Chennai. Thus, the sample sent to CFSL were tampered samples. He adverted to the report of CFSL and pointed out that the seals were illegible; and

(d) that, the petitioner was not in physical possession of the contraband. The presumption under Section 35 of the Act is rebuttable. There must be culpable mental state of a person to commit the crime. The petitioner was only a name lender to export the goods in question. Therefore, the petitioner cannot be considered as an actual owner and exporter of goods.

With these submissions, he prayed that this petition be allowed.

5. Opposing the bail petition, Shri. Jeevan J. Neeralgi, learned Central Government Standing Counsel submitted that the CFSL report clearly shows that 'Ketamine' was found in the samples. 'Ketamine' is a narcotic substance described at Sl.No.110A in the schedule to the NDPS Act. The petitioner, in his statement, recorded under Section 67 of the NDPS Act has accepted moral responsibility with regard to attempted export of contraband. Admittedly, petitioner has filed shipping bills. Offence is serious in nature and on conviction, the petitioner is liable to