Point of law: Recovery of contraband – Rejection of bail - contraband article is more than the commercial quantity and the investigation is still pending

ORDER :

This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. for granting bail in Crime No.269/2020 registered by the Jeevan Bheemanagar Police Station for the offences punishable under Sections 20(b), 8(c) and 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).

2. The case of the prosecution is that a case came to be registered on the complaint of one Virupakashaswamy, a Police Officer, on 12.11.2020, alleging that he received a credible information that some people are purchasing MDMA Crystals, Ecstasy Pills, Hash, LSD Strips through Post from Netherland, Poland, Germany and other countries and they are selling the same to college students. On the same day, he received a message from Vimanapura Post Office that a parcel has come to the Post Office in the name of the petitioner-accused. Accordingly, at about 2.00 p.m., he went near the house of the petitioner and while the petitioner was receiving the parcel from the Postman while delivering, the complainant apprehended the petitioner. Thereafter, he seized 200 LSD Strips in the presence of panchas and prepared the panchanama. After apprehending the arrest, a case was registered against the petitioner for the aforesaid offences and was remanded to judicial custody. The petitioner approached the Sessions Judge for bail, which came to be rejected. Hence, he is before this Court.

3. Sri Ashok Haranahalli.S., learned Senior Counsel appearing for petitioner contended that the petitioner is innocent of the alleged offence. He has been falsely implicated in the case. The Police Officer who conducted the search has not followed the provisions of Section 50 of NDPS Act. Though the Police Officer who went alongwith the Assistant Commissioner of Police (ACP) is a Gazetted Officer, he should not have seized the contraband articles, but he should have given the option of right to search to the accused before the rank of a Gazetted Officer or the Magistrate. The ACP himself has seized the contraband articles, which amounts to violation of Section 50 of the NDPS Act. He has not informed about the right of search to the accused before the Magistrate or Gazetted Officer. Therefore, he prayed for grant of bail.

4. Learned Senior Counsel further contended that the quantity alleged is 200 LSD Strips and the paper weight has also been taken in to consideration but the paper weight should have been excluded. There is no proper weighing done by the raiding authority. The field test has not been conducted as per the guidelines of Narcotics Control Bureau No.1/88. They have to send the samples of seized articles within 72 hours for chemical analysis and the report shall be obtained within 15 days. Even after 4½ months from the date of seizure, the report has not been received by the prosecuting agency. Thereby, they have violated the procedures to be followed by them as per the guidelines issued by their own Department. Therefore, it cannot be presumed that the accused has committed any offence under the NDPS Act. There is no material placed before the Court that the seized article is a contraband article and it is of a commercial quantity in order to bring it under the provisions of Section 37 of the NDPS Act. The petitioner is the permanent resident of Bengaluru and he is ready to abide by the conditions that may be imposed by this Court. Hence, prayed for granting of bail.

5. Learned Senior Counsel in support of his argument in respect of violation of Section 50 of NDPS Act and the procedures of Narcotics Control Bureau relied upon the judgments of the Hon’ble Supreme Court, High Courts of Delhi, Calcutta and Bombay apart from the judgment of a Co-ordinate Bench of this Court.

6. Per contra, learned SPP-II, appearing for the respondent-State objected the bail petition and contended that the petitioner purchased the drugs through online booking by opening the Play Store and creating a Dark Web and through Dark Web, he has placed the order of