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2018 Supreme(Kar) 33
IN THE HIGH COURT OF KARNATAKA
R.B. BUDIHAL, J.
Noble - Petitioner
Versus
State of Karnataka - Respondent
Criminal Petition No. 1186 of 2018
Decided On : 21-02-2018
For the Petitioner:K.S. Vishwanatha, Advocate.
For the Respondent: K. Nageshwarappa, H.C.G.P.
Compliance with mandatory requirements of the NDPS Act, including explanation of legal rights to the accused and production of required test reports, is crucial in deciding bail petitions.
Headnote:
BAIL - Narcotic Drugs and Psychotropic Substances Act - Section 22(b) - Section 42(1), Section 42(2), Section 50 - Instruction No.1.18 of Annexure-I
Fact of the Case:
The petitioner-accused filed a petition seeking release on bail for offences under Section 22(b) of the NDPS Act. The prosecution alleged the petitioner was involved in drug dealing based on information received by the police.
Finding of the Court:
The court found non-compliance with mandatory requirements of Section 42(1) and Section 50 of the NDPS Act. It noted the absence of specific mention of reducing credible information into a diary and failure to furnish copies to the immediate superior officer within 72 hours. The court also highlighted the lack of explanation to the petitioner about the legal right to conduct a search before a gazetted officer or a magistrate. Additionally, the prosecution failed to produce qualitative and quantitative test reports as required by Instruction No.1.18 of Annexure-I.
Issues: Non-compliance with mandatory requirements of the NDPS Act, lack of explanation to the petitioner about legal rights, and failure to produce required test reports.
Ratio Decidendi: The court emphasized the importance of complying with mandatory requirements of the NDPS Act and the duty of the police to explain the legal rights to the accused. It also stressed the necessity of producing qualitative and quantitative test reports as per the standing instructions.
Final Decision: The petition was allowed, and the petitioner-accused was ordered to be released on bail for the offences punishable under Section 22(b) of the NDPS Act, subject to specified conditions.
1. This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Section 22(b) of Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') registered in respondent Police Station Crime No.8/2018.
2. The prosecution case in brief On 10.01.2018 at 10.00 am. the information alleged to have been received by Inspector of Police, CCB, about the selling of drugs by one black complexion African person, who used to come in white colour two wheeler bearing KA-03 HN-4110 near BBMP office, Honi main road, Horamavu Agara Post, Bangalore. Upon this information the Inspector of police arranged a team and collected panchas, took permission from official superior and went to the above said place at 12.20 p.m. and the Inspector of Police noticed one person standing with two wheeler and on observation and after confirmation, they surrounded and apprehended him on the spot and on enquiry, he admitted about dealing of drugs. After confirming this, secured the presence of ACP of CCB police by name B.S. Mohan Kumar and after his arrival, said to have given option of search. Then he opted for search before gazetted officer and therefore, since, ACP was the gazetted officer conducted search. On conducting search of the petitioner, they said to have found 18 gms. of MDMA, mobile phones, laptops, Rs.4000/- cash, back pack bag and one two wheeler, all the items were seized under mahazar and submitted report. On the basis of the said complaint, the case was registered by the respondent police.
3. I have heard the learned Counsel appearing for the petitioner-accused and the learned High Court Government Pleader appearing for the respondent-State.
4. I have perused the averments made in the bail petition, FIR, complaint and the other materials on record.
5. Looking to the complaint averments, there is no specific mention that after receipt of the credible information by the complainant, reduced the same into dairy, which is maintained for registration of such information. Therefore, this itself goes to show that there was no compliance of mandatory requirements of Section 42(1) of NDPS Act. Even there is no specific averments with regard to Section 42(2) of the NDPS Act wherein it says that within 72 hours of the said entry of the said information, a copies thereof shall be furnished to his immediate superior officer. Therefore, there is no compliance of Section 42(2) of the NDPS Act.
6. Apart from that, the materials go to show that 18 gms. of MDMA was seized from the person of petitioner herein. When there was a personal search, section 50 of the NDPS Act comes into play. For compliance of requirements of section 50 of the NDPS Act, there is duty of the police that they have to explain to the petitioner that he is having the legal right about exercising option for conducting search whether it is to be before the gazetted officer or before the Magistrate. Looking to the prosecution material, there is no averment that the police have explained that the petitioner is having legal right of exercising option.
7. Though it is the contention of the prosecution that they have seized 18 gms. of MDMA, but the prosecution has not produced the qualitative as well as quantitative test. Therefore, there is no compliance of requirements of standing instructions.
8. Instruction No.1.18 of Annexure-I in the standing instruction is with regard to expeditious test. It reads as under:
"Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings under N.D.P.S. Act, 1985. In many cases the Court may refuse to extend police/judicial remand beyond 15 days to be dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis requires longer time, the results of the qualitative test should be dispatched to the officer from whom the samples were received within the aforesaid time limit on the original copy of
