Venkata Subramanian vs The State

L. Narayana Swamy, J.—Heard the learned counsel for the petitioner and the learned Government pleader appearing for the respondent -- Narcotics Control Bureau, Bengaluru Zone Unit. Petitioner is accused in a case registered in NCB F. No. 48/1/9/2015/BZU on the file of the respondent - Narcotics Control Bureau, Bengaluru Zone Unit for the offences punishable under Sections 8(c) read with Sections 20(b), 21, 22, 27, 28 & 32-B(d) of NDPS Act, 1985. He is in judicial custody since 24.06.2015 and hence he has filed this bail application under Section 439 of Cr.P.C.

The case of the prosecution is that the respondent-Authority received a credible information on 23.06.2015 at 1.00 p.m. that this petitioner - accused had kept huge quantity of LSD and other drugs at Flat No. Dl, Aishwarya Apartment, 1st Main Road, Kempanna Road, Vignana Nagar, Bengaluru and he is doing drug trafficking and selling drugs to students at various colleges in Bengaluru City. Immediately, they conducted raid on the said flat along with two panchas and recovered LSD weighing 0.93 grams, LSD Crystal 0.9 grams, Cocaine 3.41 grams, MDMA 0.52 grams, Hashish 2.5 grams and Ganja 40 grams. Thereafter, during the course of investigation on 24.06.2015 the petitioner-accused gave voluntary statement and confessed that he is doing drug business since 2014. He further confessed that he is doing this drug business by selling it to businessmen, college students and others for money. Subsequently, the respondent - authorities have arrested this petitioner, registered a case and took up investigation.

Learned counsel for the petitioner submits that petitioner - accused is innocent and a false case has been registered against him. He contends that the petitioner - accused had never given any confession statement. He pointed out that the alleged confession statement was recorded first and thereafter the accused was arrested. This is contrary to law. He further contends that under Section 37 of the NDPS Act the petitioner is entitled to be released on bail.

It is further contention of the learned counsel for petitioner that before coming to the conclusion by the respondent - authority that the seized substances are prima facie narcotic drugs or psychotropic substances, they have to adopt a procedure prescribed in Drug Law Enforcement Field Officers Hand Book. It is very clear in that book that the respondent - authorities have to conduct test, matches the resultant colour and forms a reasonable belief that the substance gives positive colour pattern for drug. But in the instant case the respondent - authorities never conducted such tests.

The learned counsel for petitioner further contended that out of six substances alleged to be contraband seized five substances, such as, LSD, LSD Crystal, MDMA & Ganja were not at all subjected to any test by the respondent-authorities though they were very much equipped with the drug detection kit. The respondent - authorities have utterly failed to conduct preliminary test and under Section 54 of the NDPS Act once the substance is seized and confirmed by test with the kit that it is a contraband then it is to be presumed that there are prima facie material against the persons from whom it was seized and involved in drug trafficking. The measurement of LSD blot papers are also not forthcoming.

The learned counsel further contended that the petitioner hails from very respectable family, his father is a Central Government employee and mother is a medical practitioner having own nursing home at Coimbatore and he is a software Engineer working in Accenture Software Company at Bengaluru. The offences alleged are neither punishable with death nor imprisonment for life and the offences alleged are triable by learned Magistrate. He is injudicial custody and undertakes to abide by any conditions that may be imposed by this court while granting the bail. Hence, he prays to allow the petition.

On the other hand, learned counsel appearing for respondent - authorities vehemently opposes the bail application on the ground that there is a prima facie case against this petitioner - accused. He submits that the offence alleged is serious one and the present petitioner is directly involved in the crime. He contends that there is recovery made at the instance of this petitioner. The prosecution has placed on record the relevant documents on record to prove that this petitioner - accused is involved in the alleged crime.

The learned counsel for respondent - authorities filed a detailed statement of objections to the bail petition of the petitioner - accused and contended that the respondent - authorities have followed all the required procedure in detail and have sent the drug samples to the lab. He contends that the drugs were seized from the possession and house of the petitioner - accused. He is having knowledge about his drug business and he clearly confessed it in his voluntary statement recorded under Section 67 of the NDPS Act by the investigating agency.

He contends that the commercial quantity for LSD is 0.1 grams but the seized material weighs about 0.83 grams. In all the six substances seized the total weight is above the minimum commercial quantity prescribed. He further contends that if the petitioner - accused is released on bail, he may tamper with the evidence and hinder the progress of the investigation. He may also again connive and resort to do the same illegal business and therefore, he requests this court to dismiss the bail application.

Perused the records.

As could be seen from the records, the respondent - authorities have conducted a raid on the premises where the petitioner - accused was residing and seized the drug articles. The details of the seized drugs and its weight are LSD weighing 0.93 grams, LSD Crystal 0.9 grams, Cocaine 3.41 grams, MDMA 0.52 grams, Hashish 2.5 grams and Ganja 40 grams. The said articles were seized in the presence of panchas and were subjected to required test and also sent some of the substances to lab. The respondent - authorities have also recorded the voluntary statement of the petitioner - accused. In that statement he confessed about possession of the drugs.

As rightly contended by the learned counsel for petitioner - accused that the respondent - authorities have not properly followed the procedure as contemplated under Chapter 6 of Drug Law Enforcement Field Officers'' Handbook of Narcotics Control Bureau. Under which it is clear that once the search operation is complete, the articles recovered and seized need to be properly tagged. The field testing is prescribed in the said book as '' a small quantity of substance suspected to be ND, PS or CS must be tested with the help of field drug identification test kit and an indicative nature of the substance should be established from the color range. This should also be corroborated by questioning the possessor to ensure that the substance recovered is a ND, PS or CS. If more than one package containing the suspected substance is recovered, a small quantity of substance from each packet must be tested with the field test kit.

The contention of the learned counsel for petitioner is that when the said kit is provided and equipped the respondent - authorities have not conducted such test. They have failed to take small quantity of substance from each packet and test it with the field test kit. In fact, the test carried out at the spot of one sample out of the total packets seized of LSD would not establish that the entire materials seized were LSD. There should be a better mechanism to prima facie establish that the material so seized was a particular drug and that it was of a commercial quantity in order to even register a case against the accused.

Further, it is for the respondent - authorities to take appropriate measures in addressing this lacuna in the manner in which investigations are carried out, especially when it attracts severe penalty to the accused who are confronted with such cases and the fact that no such report has been received from the Forensic Science Laboratory. The petitioner has been in custody without even being faced with appropriate findings prima facie to establish that he was involved in drug traffic, which would certainly result in a miscarriage of justice.

The respondent - authorities have utterly failed to conduct preliminary test and under Section 54 of the NDPS Act once the substance is seized and confirmed by test with the kit that it is a contraband then it is to be presumed that there are prima facie material against the persons from whom it was seized and involved in drug trafficking. The measurement of LSD blot papers are also not forthcoming. The petitioner hails from a respectable family. He is in judicial custody since more than two months. He undertakes to abide by any conditions that may be imposed by this court. Therefore, he is entitled to be released on bail. The apprehension of the learned Government Pleader could be suitably met by imposing proper conditions. Hence the following:--

Bail petition is allowed and petitioner is granted bail. Petitioner shall execute a personal bond for a sum of Rs. 1,00,000/- with one solvent surety for the like sum to the satisfaction of the jurisdictional court; subject to following conditions:

1) He shall not hold out threats to the prosecution witnesses or tamper with evidence;

2) He shall attend the court on all dates of hearing, except under unavoidable circumstances;

3) He shall mark his attendance before the Investigating Agency twice in a week between 9 a.m. to 5 p.m. till completion of the investigation and filing of the charge-sheet;

4) It is made clear that if he does not comply with any one of the conditions imposed on him, the prosecution is at liberty to seek cancellation of the bail from the concerned Sessions Court.