BEN OKORO vs STATE OF KARNATAKA

This petition is filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under

Sections 15(A), 21(B), 22(B), 22(C) of Narcotic Drugs and Psychotropic Substance Act (for short ''Act'') registered in respondent - police

station Crime No.200/2017.

Brief facts of the prosecution case as per complaint averments that on 25.9.2017, the Police Inspector has deputed complainant, Abdul

Hameed HC - 8986, PC 12175 Vittala, PC 12182 Earesha to trace culprits in old pending cases. While making rounds in their station limit, the

informant met and told that in Nagareshwara Nagenahalli in Ramegowda Layout in one house a person by name Ben Okoro, an African, is selling

cocaine drug in small packets. Upon this information along with the informant all these three police men went to Ramegowda Layout, where one

African was giving narcotic drugs packet and collecting money from customers. Then immediately returned to Police Station and complaint was

lodged upon which FIR is registered in Crime No.200/2017 for the aforesaid offences and submitted FIR. Thereafter the ACP of Sampigehalli

Sub-Division tookup further investigation and informed the same to DCP and also collected two panchas. Then the ACP along with his staff

proceeded to said Ramegowda Layout at 8.55 p.m. to the premises which is located in Ramegowda Layout, the petitioner/accused was found and

taken to custody and questioned him as to what he was possessing and it is alleged that he told, he was having cocaine.

The ACP has given option of search to the petitioner to get search before Gazetted Officer or Magistrate or he himself, the Gazzetted Officer

can search his person for which he replied he can search regarding this a memorandum was prepared and served. It is further alleged that the

person of petitioner was searched and from his pant packet 4 small packets of 1 gram each was found and another plastic cover containing 100

grams of power said to be cocaine. They also found one Nokia Mobile Phone, 4 currency notes of Rupees two thousand and 4 currency notes of

Rupees five hundred.

Thereafter, the petitioner was subjected for further interrogation and told he has kept some more materials in cupboard and on search of

cupboard, they found a packet containing white power of 500 grams and lose packing packets. All these were seized under panchanama. On the

basis of the said materials, the present petitioner has been involved in the said case.

Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and also the learned High Court Government Pleader

appearing for the respondent - State.

Learned counsel appearing for the petitioner made the submission that in this case regarding the receipt of credible information and for

conducting search of the petitioner/accused, the mandatory provisions under Sections 42 and 50 of the Act were not followed strictly by the

police. He also made the submission that insofar as the alleged seizure is concerned, as per standing instructions issued by the Central Government,

the instructions were also not followed by the Authorities though it is the contention of the police that the sample of the seized materials were sent

to the FSL for examination and report. There is no qualitative as well as quantitative test report.

Learned counsel drew the attention of this Court to the Standing Instructions No.1/88 and made the submission that the concerned Authorities

are required to produce within 15 days the qualitative report and within next 15 days the quantitative report regarding the seizure of narcotic

substance, otherwise the Court can refuse to remand the accused to custody at the stage of first 15 days itself. Hence, he submitted that though the

material was sent to the laboratory, even as on today, no such qualitative and quantitative reports are produced. Therefore, he submitted that

unless and until those reports are produced, it cannot be said that the material seized is a cocaine and it is weighed as projected by the prosecution

that nearly 500 grams, which is above the commercial quantity. Hence, he submitted that by imposing reasonable conditions, the petitioner may be

enlarged on bail. In support of his submission, learned counsel for the petitioner relied upon the decisions, which he has produced in the list of

authorities dated 18.1.2018.

Per contra, the learned Government Pleader made submission that looking into the prosecution materials, prima facie case is made out against

the petitioner herein that he was possessing 500 gms of cocaine narcotic drug. He also made submission that the quantity said to have been seized

is 500 gms, which is more than the commercial quantity. He further made submission that the petitioner herein is a foreign national and if he is

released on bail, there is likelihood of petitioner absconding and he might involve in such similar offences. Hence, he opposed the bail petition and

requested the court to reject the same.

I have perused the FIR, complaint and decisions relied upon by the learned counsel for the petitioner.

Looking into the Panchanama which is said to have been drawn after the seizure of narcotic drug from the possession of the petitioner, learned

counsel for the petitioner drew the attention of this court to page 2 of the Panchanama and he made submission that Section 50 of NDPS Act has

not been followed in effecting the alleged seizure of the narcotic drug.

I have perused the contents of the mahazar. Firstly, when the petitioner was asked before whom his personal search has to be conducted

either by the Jurisdictional Magistrate or by the Gazetted Officer, he answered it would be by the Gazetted Officer. The contents also goes to

show that thereafaterwards, the ACP himself told the petitioner that he is also Gazetted Officer and whether he can conduct his personal search.

Next sentence is very important that then he further told the petitioner that he has the right to give his consent. Thus, it clearly goes to show that

mandate of Section 50 of NDPS Act without explaining the petitioner that he is having legal right to chose, was not properly explained to the

petitioner. Therefore, there is no compliance of mandatory requirements of Section 50 of NDPS Act.

As per section 42(1) of NDPS Act, immediately after the receipt of credible information, the same has be reduced into writing in the Station

House Diary without wasting time. But in this case, perusing the prosecution materials itself like complaint, FIR, seizure mahazar, it is clear that

there is no specific mention that after receipt of the said information, it is reduced into writing in the Station House Diary. Further, as per Section

42(2) of NDPS Act within 72 hours from the entry of such information in the station house diary, they have to send the information to immediate

superior officers. Even in that regard also there is no specific mention by the police in the material. Therefore, the learned counsel for the petitioner

is justified in making submission that even the requirements of Section 42 of NDPS Act is not complied in this case.

Coming to the materials said to have been seized, no doubt there is mention as per the contents of mahazar and complaint that the petitioner

herein was involved in selling narcotic drugs in small packets. When the house was searched, they found 500 gms of white powder, which is

cocaine. Looking into the materials, quantity mentioned is 500 gms, which is more than commercial quantity. In this connection, the central

government framed standing instructions and as per Standing Instruction No.1/88, it lays down time limit for obtaining qualitative and quantitative

report from the FSL and looking to the materials produced by the prosecution in this case, they have not produced the qualitative report within 15

days from the date of sending the narcotic drug to the FSL. They have also not produced the quantitative test reports within 30 days. Therefore,

there is no compliance of requirements of standing instructions. The learned counsel for the petitioner relied upon the decision of the Hon''ble Apex

Court that fulfillment of requirements of the standing instructions is also requirement of law. In this regard, he relied upon the decision of the

Hon''ble Apex Court in the case of Union of India v. Bal Mukund and others reported in 2009(12) SCC 161 and he draws the attention of this

Court to paragraph 36 which reads as under:

There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays

down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and

then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in

law.

Therefore, looking to the decision of the Hon''ble Apex Court in the case of Bal Mukund stated supra, fulfillment of the requirements of

standing instructions is also mandate of law, which is not complied in this case. Unless and until, these two test reports are obtained at this stage, it

is difficult for the court to believe that the materials seized is cocaine and the quantity seized is 500 gms. Therefore, Section 37 of the NDPS Act

will not come in the way at this stage in considering the bail application of the present petitioner.

The petitioner contended in the bail petition that he is innocent and not committed the alleged offence and he has been falsely implicated in the

case. He has undertaken to abide by any conditions to be imposed by this Court. Apart from that as per the decision of the Hon''ble Apex Court,

fulfillment of requirements of Section 42 and Section 50 of NDPS Act is relevant factor which the court has to take into consideration while

deciding the bail application also.

In view of this legal position and considering the entire materials on record, I am of the opinion that it is a fit case to exercise jurisdiction under

Section 439 of Cr.P.C. and petitioner can be granted with bail.

Accordingly, petition is allowed. Petitioner/accused is ordered to be released on bail for the offence punishable under Sections 15(A), 21(B),

22(B), 22(C) of Narcotic Drugs and Psychotropic Substance Act registered in Crime No.200/2017, subject to the following conditions:

i. Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- and furnish one surety for the likesum to the satisfaction of the concerned

Court.

ii. Petitioner shall surrender his passport before the trial court while furnishing personal bond.

iii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.

iv. Petitioner shall appear before the concerned Court regularly.