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2014 Supreme(Bom) 417
High Court of Judicature at Bombay
A.R. JOSHI, J.
Kailash Rajput & Others
Versus
Intelligence Officer, Air Intelligence Unit, Customs & Another
Criminal Bail Application Nos. 1344 of 2013, 1345 of 2013 & 1346 of 2013
Decided On: 18-02-2014
For the Applicants:A.P. Mundargi, Senior Advocate a/w. Ayaz Khan i/b. Rajendra Bidkar, A.H.H. Ponda a/w. Ayaz Khan i/b. Rajendra Bidkar, Shirish Gupte, Senior Advocate i/b. Rajendra Bidkar, Advocates.
For the Respondents:R1, Rebecca Gonsalvez, Advocate, R2, S.V. Gajare, APP.
The main legal point established in the judgment is that the absence of a specific complaint alleging possession of certain substances within the statutory period does not entitle the accused to bail under Section 167(2) of the Criminal Procedure Code if subsequent evidence reveals the presence of those substances.
Headnote:
NDPS Act - Bail Applications - Sections 29, 22, 28 read with Section 23 and 8(c) of NDPS Act, 1985 - The court discussed the provisions of Section 167(2) of the Criminal Procedure Code and the complaint filed under the NDPS Act, 1985. The court considered the findings of the Field Testing Kit and the subsequent report from the CFSL Hyderabad, which revealed the presence of Ketamine and Methamphetamine. The court rejected the bail applications based on the technicalities and the absence of a complaint specifically alleging the possession of Ketamine and Methamphetamine within the statutory period of 180 days from the arrest of the applicants.
Fact of the Case:
The bail applications arose from an investigation by the Intelligence Officers, Air Intelligence Unit, Customs, and the filing of a complaint under the NDPS Act, 1985, alleging offenses against the applicants for possession of Ketamine and Methamphetamine. The applicants sought bail under Section 167(2) of the Criminal Procedure Code, arguing the absence of a complaint within 180 days of their arrest specifically alleging possession of Ketamine and Methamphetamine.
Finding of the Court:
The court rejected the bail applications, considering the findings of the Field Testing Kit and the subsequent report from the CFSL Hyderabad, which revealed the presence of Ketamine and Methamphetamine. The court held that the applicants were not entitled to relief based on technicalities and disposed of the applications accordingly.
Issues: The court considered whether the absence of a specific complaint alleging possession of Ketamine and Methamphetamine within 180 days of the applicants' arrest entitled them to bail under Section 167(2) of the Criminal Procedure Code.
Ratio Decidendi: The court's decision was based on the interpretation of Section 167(2) of the Criminal Procedure Code and the findings of the Field Testing Kit and the subsequent report from the CFSL Hyderabad, which revealed the presence of Ketamine and Methamphetamine.
Final Decision: The court dismissed and disposed of the bail applications, holding that the applicants were not entitled to relief based on technicalities.
1) Heard the learned Counsels for the respective applicants. Also heard the learned Special Prosecutor for the Customs.
2) All the three Bail Applications are arising out of the investigation carried out by the Intelligence Officers, Air Intelligence Unit, Customs and subsequent filing of the complaint bearing NDPS Special Case No.51 of 2013 filed on 12th April, 2013 alleging commission of offences against all the three applicants for the offences punishable under Sections 29, 22, 28 read with Section 23 and 8(c) of NDPS Act, 1985.
3) At the threshold it must be mentioned that all the three bail applications under consideration are preferred not on the merits of the matter, but, under the provisions of Section 167(2) of Criminal Procedure Code on the ground that till date there is no complaint against the applicants for finding in possession of Ketamine and Methamphetamine. According to the applicants, they are entitled for bail as there is no complaint filed within the period of 180 days of the arrest of the applicants and specifically alleging that they are dealing in Ketamine and Methamphetamine.
4) Prior to dealing with the arguments advanced on behalf of the applicants, certain factual position is required to be mentioned concerning initiation of the investigation, continuance of the same, filing of the complaint on the prima facie assumption based on the Field Testing Kit as to finding of Methaqualone, subsequent finding from the Chemical Analysis report as to finding of Ketamine and Methamphetamine and also filing of the different proceedings before the Sessions Court and also before this Court on behalf of the applicants. This information is necessary in order to appreciate the rival arguments and to have proper perspective of the matter and to deal with the challenge, not on the merits, but on the technicalities.
5) On the specific information, the Officers of Air Intelligence Unit conducted a raid and inspected and seized three courier parcels at Courier Export Terminal at Mumbai Airport. Those parcels were booked by M/s. M.A. Express Logistics by using the license of M/s. Swift Air Clearing Agency (I) Pvt. Ltd. Those parcels were destined for London. The said three courier consignments were packed in three separate cartons, which were declared as food stuff, tea and detergent packed in branded items packet. As such, total 30 packets were found and each containing inner silver packet containing white crystalline powder. On testing the contents of the said packets on Field Testing Kit, it was initially found to be Methaqualone – a psychotropic substance. All the packets were weighing 14.920 kgs and apparently were supposed to be the psychotropic substance Methaqualone as per the field testing kit. Accordingly panchnama was drawn. After investigation, the complaint was lodged before the Special Court under NDPS Act. It was lodged on 12.4.2013. On the same day, cognizance was taken by the Special Court and following order was passed:
“ORDER
1. There are sufficient grounds for taking cognizance of the offence u/sec. 29, 22 and 28 r/w 23 and 8(c) of the NDPS Act against the accused persons. Accordingly the cognizance is taken of the aforesaid offences.
2. The accused to be produced before the court on 26/4/2013.
3. All the accused persons are remanded to judicial custody till next date.
4. The list of witnesses is given.”
6) Thereafter a discharge application was preferred vide Exhibit-7 before the Special Court. Said application for discharge along with another application Exhibit-17 was rejected by the Special Court vide order dated 17.6.2013. It was held that the accused would not be entitled for bail under Section 167(2) of Cr.P.C..
7) Three separate bail applications were preferred by the applicants before the Special Court and they were disposed of by the impugned order dated 21.6.2013. All the three bail applications were rejected. All the three applicants preferred separate bail applications before this Court. However,
