Kabeeb Kalkarnai vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned Special Public Prosecutor for the respondent. It is the case of the prosecution that on 12.8.2012 at about 2345 hours, the Immigration Officers at the Bangalore International Airport, Devanahalli, Bangalore, handed over a passenger, namely, the present petitioner holding an Indian passport to the Superintendent of Customs, Air Intelligence Unit, Bangalore International Airport, informing that they suspected that he might be carrying some contraband in his baggage, who in turn directed the Airlines staff to offload the petitioner''s baggage for examination. The baggage of the petitioner was subjected to examination. The petitioner was on his way to Kuala Lumpur, Malaysia, and the flight was to depart at 0045 hours. From the information provided by the Immigration Officers, it was alleged that the petitioner was carrying some drugs covered under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, "NDPS Act" for brevity) and therefore, Mahazar proceedings were initiated in the presence of an independent witness and in the course of Mahazar, the Superintendent drew a trace of the substance that was recovered from the petitioner''s baggage and it was tested for known narcotic substances in the "GE ITEMISER" testing machine borrowed from a courier company. The result of the test confirmed that the said item was Ketamine Hydrochloride as per report dated 13.8.2012. A personal search of the petitioner in the presence of a Gazetted Officer was done and his voluntary statement u/s 67 of NDPS Act was recorded and it was confirmed that he was carrying Ketamine. However, the exact nature of the chemical could be determined only on a thorough examination by a certified laboratory and therefore the substance seized from the petitioner was divided into four packets and the remaining powder weighing 3.930 kilograms along with the packing materials were seized under a Mahazar. The representative samples of the powder were sent to the Joint Director, Central Revenues Laboratory, Custom House, Chennai, for quantitative and qualitative analysis. The report from the said laboratory was received on 28.1.2013 and it was sent directly to the Special Judge, NDPS Court, Bangalore, and a copy was sent to the complainant. The report indicated that the powder answered to the test for presence of Ephedrine Hydrocholoride. On the basis of the said report, the contraband was identified as Ephedrine Hydrochloride, which according to the prosecution, is a chemical used in manufacturing of Ecstacy tablets and also for manufacturing of Scheduled drugs namely Amfetamine as per Sl. No. 152 and Metamfetamine Racemate as per Sl. No. 160 of the table published in the NDPS Act. Therefore, it would attract punishment u/s 25A of the NDPS Act, for contravention of Section 9A of the NDPS Act and the offender would be liable for rigorous imprisonment extending up to ten years and fine, which may extend to One Lakh rupees. It was also stated that the Ephedrine and its salts have been declared as controlled substances vide Controlled Notification dated 28.12.1999. It is further stated that the export of precursor chemicals including Ephedrine and its salts requires a "No Objection Certificate" from the Narcotics Control Bureau for export as per public notice dated 2.1.1996 and 17.7.2000, respectively. As per Section 2(vii)(d) of the NDPS Act, "Controlled Substance" is a substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances, by a notification declare it to be a controlled substance. Therefore, on the face of it the petitioner is guilty of the offence punishable as aforesaid and hence, it is contended that the petitioner is not entitled to be enlarged on bail.

In this regard, the learned counsel for the petitioner would draw a distinction between a drug which falls under the table published in the NDPS Act and a controlled substance and submits that the same cannot be treated on par. In this regard he would place reliance on a judgment of the High Court of Bombay in Rafael Palafox Garcia vs. The Union of India dated 25.9.2008, to contend that in an identical case involving a controlled substance, the Bombay High Court has pointed out the distinction that appeared insofar as a controlled substance is concerned and having regard to the same had enlarged the accused therein on bail.

The learned Special Public Prosecutor would rely on a line of cases to contend that there is no real distinction and that an allegation of an offence punishable u/s 37 of the NDPS Act is made and that it is not in dispute that the substance in question is used in manufacture of Ecstacy tablets and Amfetamine which fall within the table published under the NDPS Act. Further, the quantity that was being carried being a commercial quantity, an offence is established on the face of it and hence, the petitioner could not seek enlargement on bail.

It is not in dispute that the report obtained from the Certified Laboratory namely Central Revenue Laboratory, Custom House, Chennai, indicated that the substance seized was Ephedrine Hydrochloride, which is clearly a controlled substance and as pointed out by the Bombay High Court, a controlled substance is not necessarily used only to make narcotic drugs or psychotropic substances, but, it is a versatile substance which can be used in manufacturing of various things including innocuous medicines by the pharmaceutical industry and as far as controlled substances are concerned, there is no provision for a minimum term of imprisonment unlike Sections 19, 24 and 27A of the NDPS Act. As for instance, it was pointed out that in the case of Shreeniwas Bansidhar Somani vs. The Intelligence Officer, NCB and another dated 14.2.2002, 1250 kilograms of Acetic Anhydride came to be seized, which was a controlled substance used to manufacture brown-sugar i.e. heroin. In the said case, the Court held that Acetic Anhydride being a controlled substance, rigour of Section 37 of NDPS Act would not be attracted and bail was granted. It was also pointed out that there is extensive amendment to the NDPS Act. The offence falling u/s 9A read with Section 25A is punishable with imprisonment which may extend to ten years and also fine which also may extend to Rs. One Lakh., There was an embargo on the powers of the Court in granting bail under the old provisions of Section 37(1)(b) of the Act. From Section 37(1)(b) the term "imprisonment of five years or more" is deleted and substituted by "for offence u/s 19 or Section 24 or Section 27A and also for offences involving commercial quantity" and therefore the case of the applicant therein was held not covered u/s 37(1)(b) of the NDPS Act. The concept of commercial quantity does not apply to a controlled substance in view of the provisions relating to commercial quantity specially Section 2(viia) and Section 2(viid) of the Act and the notification issued by the Government specifying the small quantities and commercial quantities also shows that this concept is peculiar to Narcotic drugs and Phychotropic Substances. In that view of the matter, bail had been granted in that case.

The learned counsel would draw sustenance from the said decision and would submit that since admittedly the substance that has been seized was a controlled substance, the petitioner would be entitled to be enlarged on bail While the several decisions cited at the Bar by the Special Public Prosecutor are seen, they are almost all with reference to drugs which were Narcotic drugs and Psychotropic substances. As for instance in the case of Customs, New Delhi Vs. Ahmadalieva Nodira, the substance involved was "Diazepam"-5 mg." tablets. In the case of N.R. Mon Vs. Md. Nasimuddin, the substance involved was Ganja or cannabis. In the case of Union of India (UOI) Vs. Rattan Mallik @ Habul, the substance involved was Heroin. However, there is one decision of the Kerala High Court in the case of Dr. Ramesh Kumar vs. Intelligence Officer dated 22.3.2010 where the substance involved was Ephedrin but this was seized along with charas. Therefore, the accused having been denied bail was in order There is a judgment of the Punjab and Haryana High Court in the case of Amardeep Singh vs. Directorate of Revenue Intelligence dated 11.10.2010 where the substance seized was Ephedrine in a very large quantity of 232 Kgs. and 237 grams in ten gunny bags and therefore a serious view having been taken in that case would not extend to the present petitioner. In that view of the matter, the petitioner has made out a case for enlargement on bail. Accordingly, this criminal petition is allowed. The petitioner shall be enlarged on bail on his furnishing a personal bond for a sum of Rs. One Lakh with two local sureties for a like sum; he shall keep the respondent informed of the address in which he will reside during the period of bail and any change in address shall be communicated to the customs; he shall not leave the jurisdiction of the Court without the leave of the Court and he shall not indulge in any similar activity which will entail cancellation of bail.