Intelligence Officer NCB vs Selvi

R. Subbiah, J.—Crl. O.P. No. 24489 of 2012 is filed by the Complainant in R.R. No. 7 of 2012 in NCB F. No. 48/1/5/2012-NCB/MDS

on the file of Intelligence Officer, Narcotics Control Bureau, Chennai Zonal Unit, Chennai-90 for cancellation of bail granted to the

respondents/accused herein in Crl. M.P. No. 2119 of 2012 on the file of Principal Special Judge, Principal Special Court under EC & NDPS Act

Cases, Chennai. Brief facts are as follows:

Case of the prosecution is that the petitioner/complainant-the Intelligence Officer, Narcotics Control Bureau, Chennai has received an information

on 17.3.2012 from Shri S. Maharajan, Sub Inspector, RPF Outpost, Mambalam Railway Station, as under:

Today, when RPF was conducting drive against checking of gents travelling in the ladies coaches of EMU trains, at about 10.30 Hours, we

noticed 2 ladies getting down from I Class Compartment with 4 travel bags and 4 carry bags and when asked for tickets, they were found holding

only 2nd class tickets valid to travel from Chennai Egmore to Perungalathur Railway Station dated 17.3.2012 and on further enquiry they revealed

their names as Janaki, aged 37 years, w/o. late Murugan and Another C. Selvi, aged 40 years, w/o. late Chandran and when asked what

contained in the bags they were carrying, they revealed that the bags contained ganja leaves and they were brought along with aforesaid 8 bags to

RPF Outpost, Mambalam and kept under the watch of RPF lady constables.

On the basis of the said information, the officers of Narcotics Control Bureau, Chennai rushed to the RPF Outpost at Mambalam Railway

Station, Chennai and approached the said Sub Inspector Maharajaran and T.K. Ramamurthy, Head Constable RPF and introduced themselves as

officers of NCB, Chennai and briefed them about the information received by them and asked the RPF officials to be witnesses for the

proceedings to be conducted by the NCB officers under NDPS Act, for which they agreed. Thereafter, S. Maharajan, produced the two ladies

(respondents herein) along with the luggages brought by them to K.R. Srikanth, Intelligence Officer, NCB., who had already introduced himself as

Intelligence Officer of NCB, Chennai by showing his identity card. Then, K.R. Srikanth, Intelligence Officer explained the provisions of Section 50

of NDPS Act that they had the right to be searched in front of a Magistrate or Gazetted Officers to which, they politely declined the offer and

requested to be searched by the RPF lady constables who were present there. Then, K.R. Srikanth, Intelligence Officer, asked both the ladies

whether they were in possession of any narcotic drug, for which, both the ladies replied that they were in possession of 4 travel bags containing 19

packets of ganja and 2 shopping bags containing 4 packets of ganja. Thereafter, both the respondents handed over the bags to the NCB officer,

who examined all the four travel bags and the two shopping bags, which were found without any lock. Then both the ladies opened the brown

chocolate colour travel bag with inscription as ''KING'' and took out 4 packets and handed over to Shri K.R. Srikanth, Intelligence Officer, NCB.

A pungent smell was coming out of these packets. Then, the said Intelligence Officer opened the first plastic cover, which contained a brown

colour paper wrapped packet tied with nylon thread. On opening the same, it found to have contained compressed brown colour dry leaves and

on opening the remaining 3 packets with similar type of packing, all the packets were found to contain similar compressed brown colour dry

leaves. The contents of all the 4 packets were then transferred to a big white colour urea bag and mixed the entire contents. Then the officer took

out a small pinch of brown colour dry leaves powder and tested the same with the field test kit which was taken along by the NCB officers, which

answered positive for Marijuna (ganja). Then, the Intelligence Officer weighed the urea bag containing the ganja leaves transferred from all the 4

brown colour paper packets in the weighing machine and the net weight of the actual quantity of brown colour dry leaves was 12.800 kgs. Then 2

samples of 25 grams each were drawn, placed in separate polythene covers, heat sealed and placed in brown colour paper cover separately,

pasted, wax sealed with NCB seal No. 11 and marked as S1 and S2. The remaining portion of brown colour dry leaves weighing net weight of

12.750 kgs. in the urea bag was tied with jute, wax sealed with NCB Seal No. 11 and marked as P1.

Similarly, both the respondents opened the other three travel bags, which contained 12.600 kgs, 12.100 kgs., and 14.100 kgs. respectively and

two shopping bags, which contains 4.200 kgs., and 5.500 kgs. Then the Officer came to know that it was ganja after conducting test with the field

test kit and took the samples of 25 grams each and placed in separate polythene covers and he proceeded the formalities. The total net weight of

the quantity of ganja worked out to 12.800 + 12.600 + 12.100 + 14.100 + 4.200 + 5.500 = 61.300 kgs including samples (25 grams x 12 = 300

gms.). After seizing currency notes and mobile phones from the respondents in the presence of witnesses, he summoned the respondents u/s 67 of

NDPS Act to NCB Office for further enquiry, where their voluntary statements were recorded. On the same day, i.e. on 17.3.2012, the

respondents were arrested at 21.30 Hours under Sections 8(c) read with Sections 20(b), 28 and 29 of NDPS Act, as punishable under Sections

20(b)(ii)(c), 28 and 29 of the said Act.

The respondents/accused filed Crl. M.P. No. 2119 of 2012 u/s 439 Cr.P.C. seeking for bail before the Principal Special Court under EC &

NDPS Act Cases, Chennai. The said application was opposed by the complainant contending that the quantity of narcotic drug seized from the

respondents in this case is commercial quantity. Hence, they are not entitled for bail as Section 37 of NDPS Act is very much attracted and acts as

a bar for grant bail and thus, they opposed the said application.

But the trial Court held that Section 37 of the NDPS Act is not attracted and granted bail to the accused, relying upon the statement made by

the 1st respondent recorded by the prosecution u/s 67 of NDPS Act and the relevant observations made by the trial Court for granting bail are as

follows:

The first petitioner statement reads that the 1st petitioner was handed over one bag by one Rani. The statement further reads that the first petitioner

along with 2nd petitioner, Rani and Rathi travelled from Egmore to Perungalathur. When they came to Mambalam Railway Station, they got down

from the first class compartment to board the second class compartment. At that time, the railway police enquired them. The said Rani and Rathi

who accompanied the petitioners left the bags carried by them by the side of the petitioners and then ran away.

Thus, by placing reliance on the statement of the 1st respondent/A1, the Court below came to the conclusion that the entire quantity of ganga

seized in this case was not carried by the petitioners. Moreover, the prosecution impleaded other three accused, viz., Rani of Alinapuram, Theni

(absconding), Rathi of Bommayagoundanpatti, Theni (absconding) and Varusanattu Daivam of Bommayagoundanpatti, Theni (absconding) as A3

to A5 only on the basis of statement recorded u/s 67 of NDPS Act by the prosecution. Therefore it is made clear that the prosecution has not

produced any material to prove that the respondents had conspired with other three accused to illegally transport ganja from Chennai to Theni.

Further, the trial Court observed as follows:

The petitioners were engaged by 3rd accused namely Rani A3 and the petitioners had to receive a sum of Rs. 1,000/- to transport ganja from

Chennai to Theni. That means the petitioners have not either conspired or had knowledge about the conspiracy hatched by other accused.....Only

four travel bags contained ganja the quantity of ganja recovered from each travel bag is weighed as 12.800 + 12.600 + 12.100 + 14.100 + 4.200

+ 5.500 = 61.300 kgs..... Petitioners did not carry commercial quantity. Hence this Court has decided that Section 37 of the NDPS Act is not

attracted.

Aggrieved over the same, the present petition for cancellation of bail has been filed.

Heard the learned counsel for the parties and perused the materials available on record.

It is the submission of the learned senior counsel for the petitioner/prosecution that on the date of occurrence, actually all the four travel bags and

two carry bags were seized from these respondents only. The total quantity of ganja found in all these bags comes to 61.300 kgs., which is a

commercial quantity. Though they have referred 3 other persons in their statement, the respondents were not in a position to give addresses of

those persons to this petitioner. Moreover, no identification of the said persons was given by them. Hence, based on their statements only, three

persons were added as accused and the question as to whether there are three other persons or the names that were given by the accused are

imaginary could be found out only at the time of trial. Therefore, the reason assigned by the trial Court for granting bail that all the bags were not

carried by these petitioners is not legally sustainable. Since the quantity of ganja is commercial one, there is a bar u/s 37 of NDPS Act to grant bail.

In this regard, learned senior counsel relied on some judgments Union of India (UOI) Vs. Shri Shiv Shanker Kesari, , State of Punjab v. Surjit

Singh and Another (2009) STPL (LE) 42122 (SC), N.R. Mon v. Mohd. Nasimuddin (2008) STPL (LE) 40201 (SC) and Iqbal Moosa Patel Vs.

State of Gujarat, in support of his contentions.

On the contrary, it is the submission of the learned counsel for the respondents/accused that in their statement, the respondents have stated that

one Rani and Another one Rathi had travelled along with them carrying the bags and apart from that, they have also referred in their statement that

another lady, by name, one Varusanattu Daivam. Hence the prosecution itself has added three other accused along with these respondents in the

complaint. Hence, the trial Court, on a finding that only if the ganja found in all the bags added together it comes to 61.300 kgs. which is a

commercial quantity and if ganja contains in each bag weighed separately, it is less than the commercial quantity and accordingly, the trial Court

held that so far as these respondents are concerned, the number of bags carried by them did not contain the commercial quantity and thus, granted

bail and as such, there is no infirmity in the said finding. The learned counsel has also relied upon a judgment Sami Ullaha Vs. Superintendent,

Narcotic Central Bureau, in support of his contention that application for cancellation of bail could be entertained only if it is found that the accused

had misused the liberty granted to him as a result whereof, he has attempted to tamper with evidence; he has attempted to influence the witnesses;

and there is a possibility of the accused to abscond and therefore there is a possibility that the accused may not be available for trial. Except these

grounds, bail cannot be cancelled on other grounds. In this case, no such ground is available.

On a perusal of the entire materials available on record, I find that, as contended by the learned senior counsel for the petitioner/prosecution,

though the accused have informed that they travelled along with other two persons, they were not in a position to give the address and identification

of the said accused. Similarly, they were not in a position to give address of one Varusanattu Daivam who has been arrayed as A5. Whether those

names are imaginary or not could be seen only at the time of trial and not at the time of considering bail application. Till such time, the said

statement of the respondents can be taken only as a probable defence.

At this stage, it would be appropriate to extract Section 54 of NDPS Act, which reads as follows:

Presumption from possession of illicit articles: In trials under this Act, it may be presumed, unless and until the contrary is proved, that the

accused has committed an offence under this Act in respect of,--

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specifically designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic

substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled

substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been

manufactured, for the possession of which he fails to account satisfactory.

A close reading of the above said provision would clearly show that unless and until the contrary is proved, the presumption is that the accused

has committed the offence under this Act. Though, in the instant case, the trial Court has rendered a finding that so far as these petitioners are

concerned, they ought not to have carried the entire carry bags, the same can be proved only at the time of trial, particularly in the circumstances

when the accused have not given the address and identification of the other accused persons who have been referred to in their statements. In this

regard, a reference could be placed in the judgment Dharampal Singh Vs. State of Punjab, as under:

From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have

committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives

statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof

and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium.

Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In

somewhat similar facts this Court had the occasion to consider this question in the case of Madan Lal and Another Vs. State of Himachal Pradesh,

wherein it has been held as follows:

Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in

possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available

in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the

accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.

The dictum laid down in the said judgment is that once possession is established, it is for them to prove at the time of trial that such possession

is not a conscious possession. Till such time it has to be presumed that the entire quantity of ganja is received only from the possession of the

respondents. At this stage, it would be appropriate to extract Section 35 of the NDPS Act, which reads as follows:

Presumption of culpable mental state:

(1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Court shall presume the existence

of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the Act charged as

an offence in that prosecution.

(2) For the purpose of this Section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely

when its existence is established by a preponderance of probability.

A close reading of the abovesaid provision would also show that the accused can prove the fact that he had no culpable mental state with

respect to the Act charged as an offence in that prosecution only at the time of trial. Till such time, it is too early to presume that the respondents

had the mental state to carry less than the commercial quantity and till the said statement of the respondents is proved by way of evidence, the said

statement has to be construed only as a probable defence. Therefore, in my considered opinion, the bail granted by the trial Court is not legally

sustainable. Though the learned counsel for the respondents/accused relied upon a judgment Sami Ullaha v. Superintendent, Narcotic Central

Bureau (supra) that only under certain circumstances, the bail could be cancelled, I am of the opinion that in view of Section 37 of NDPS Act, if

the Court satisfies that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit

any offence while on bail, bail could be granted. These two conditions were not satisfied in the instant case. Looking at any angle, I am of the view

that bail granted by the trial Court is not proper and correct and as such, it has to be cancelled.

Accordingly, Crl. O.P. No. 24489 of 2012 is allowed and the bail granted by the trial Court is hereby cancelled. However, the Court below is

directed to conduct the trial and dispose of the case as early as possible. Consequently, connected M.Ps. are closed.