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2019 Supreme(Kar) 1810
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
P.S. Dinesh Kumar, J.
Shivaraj Urs S/o Ramachandran Urs – Petitioner
Versus
Union of India Narcotic Control Bureau Bangalore Zonal Unit – Respondent
Criminal Petition No.4448 of 2019
Decided On : 11-10-2019
Advocate Appeared:
For the Petitioner:Shri. Hashmath Pasha Senior Advocate, for Shri. Kaleem Sabir, Advocate
For the Respondent:Shri. K.N. Mohan, Spl.P.P., Shri. Madhukar M. Deshpande, Advocate
Headnote:
Criminal Procedure Code, 1973 - Section 439 and 167(1) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 22, 23, 27A, 28, 29, 32B(a), 50, 67, 19, 24, 41(2), 3(a), 2(xxiii), 2(xxiiia), 8(c), 37 and 67 - Drugs and Cosmetics Act 1940 - Evidence Act, 1872 - Section 25 - Drugs and Cosmetics (sixth amendment) Rules, 2013 - Illegal Detention - Contraband was Recovered - Held, Petitioner has also given detailed description as to how drug in question is manufactured - In Annexures ‘A’ to ‘C’ appended to Panchanama drawn at petitioner’s house, apparatus used to manufacture drug and various documents have been seized which include a photocopy of driving licence in name of Mahesh Uthappa - Statement further reveals that petitioner started his career as a front office assistant in a Hotel on a salary of Rs.2,500/- and resigned his job as General Manager of a different Hotel - It also reveals that petitioner created a fake driving licence in name of Mahesh Uthappa and by using said licence, he obtained a voter’s ID and a Pancard through different agents - He opened an account in Axis Bank in name of Mahesh Uthappa - Mr. Hasmath Pasha’s argument with regard to retracing of petitioner’s statement on ground that it was recorded under duress, cannot be countenanced because large number of documents which include a driving licence in name of Mahesh Uthappa have been seized - Further, apparatus and other materials have also been seized from petitioner’s house - It cannot be construed that NCB officials had any knowledge about petitioner’s driving licence, Bank Account details etc - A careful analysis of dates and events discernable from petitioner’s statement, seized documents and contraband do not instil confidence to record satisfaction that there exist grounds to believe that petitioner is not prima facie guilty of the alleged offence and that he is not likely to commit any offence, if released on bail - Petition dismissed.
ORDER :
This petition under Section 439 of Cr.P.C. seeking bail, is filed by accused No.2, alleged of offences punishable under Sections 8, 22, 23, 27A, 28, 29 and 32B(a) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), in NCB File No.48/1/6/19/BZU of Narcotic Control Bureau, Bengaluru Zonal Unit, Bengaluru.
2. Shri.Hasmath Pasha, learned Senior Advocate for petitioner, urged following grounds in support of this petition :
(a) that petitioner was kept in illegal detention from 1st May 2019 till he was produced before the learned Special Judge;
(b) the garage premises from where contraband was allegedly recovered was not in petitioner’s possession;
(c) no FIR has been registered and no case diary is maintained by the NCB;
(d) Panchanama dated 1st May 2019 conducted at 22.00 hours is contrary to law;
(e) ‘Ketamine Hydrochloride’ is not a drug under the NDPS Act but finds it’s place in Drugs and Cosmetics Act 1940;
3. Amplifying the grounds he made following submissions:
prosecution’s case is, NCB received a source information at 15.00 hours on 30th April, 2019 that petitioner would cross ‘golden arrow fitness club’ near ‘Coffey Mane’, Rajarajeshwari Nagar in his black colour ‘Toyota Corolla’ Car bearing registration No.KA03 MD7250. He would carry and deliver huge quantity of ‘Ketamine’ to one or two receivers near Maurya Hotel, Ananda Rao Circle, Bengaluru. At around 19.15 hours the car crossed the point of surveillance near ‘Golden Arrow Fitness Club’. The NCB team followed the car. The car stopped near Movie Land Theatre. Petitioner opened the boot of the car and handed over a redcoloured trolley luggage bag to the person waiting and immediately got into the car. The NCB officials stopped the car and asked petitioner to come out and cooperate. Instead, petitioner accelerated his car and sped away. The person who received the bag was apprehended and he identified himself as J.Kannan;
on the following day, the Toyota car was seen near BBMP Office, 5th Main Road, Yelahanka Satellite Town. NCB team reached the said place at around 11.00 hours. After about an hour petitioner came near the car. NCB officials issued a notice under Section 50 of NDPS Act, conducted a search and drew a panchanama at 13.30 hours.
NCB officials seized all material available with him including a key. NCB officers searched petitioner’s house at 22.00 hours. It is stated in the panchanama that petitioner opened the garage by using a ‘key’. Since petitioner was in NCB’s custody right from the time he was intercepted on 1st May 2019, he could not have had any key with him. Therefore, entire search and seizure operation with regard to recovery of alleged contraband is vitiated.
According to prosecution, petitioner was arrested on 3rd May 2019 and after his arrest ‘Jama Talashi’ was conducted. It is recorded that nothing was found on petitioner’s person during ‘Jama Talashi’. If nothing was found on petitioner’s person, the logical conclusion must be that the arrest memo was not served upon him, as otherwise the same would have been recorded in ‘Jama Talashi’. Thus, petitioner was detained and continued to remain in illegal custody of NCB from 1st May 2019 till he was produced before Court.
4. Shri.Hasmath Pasha relied upon following authorities:
Manoj Vs. State of M.P. (1999)3 SCC 715 (paragraphs No.9 to 13) and submitted that since petitioner was not produced before the Court within 24 hours from the time of his detention, prosecution cannot press for further detention.
K.A. Abbas Vs. Satyanarayana Rao ILR 1992 KAR 3456 (paragraph No.11) and submitted that High Court has jurisdiction to grant bail even under writ jurisdiction while considering a Corpus writ petition.
Nirmal Singh Pahlwan Vs. Inspector, Customs House, Punjab (2011)12 SCC 298 (paragraph No.8) and submitted that Customs Officers exercise police powers and therefore, alleged confession by petitioner is hit by Section 25 of Evidence Act, 1872.
Noor Aga Vs. State of Punjab and anoth
