2011 (7) TMI 846 - HC - Indian Laws

Search and seizure - . It is submitted that sample from the substance found/seized from the applicant was sent for analysis to the Central Forensic Science Laboratory, Hyderabad and the report has been received from the said Laboratory and the said report is Nil and as per the said report the substance found/seized from the applicant is neither Narcotic Drug nor Psychotropic Substance - there is no order for further investigation, and considering the fact that the applicant is in jail since last more than 18 months, the applicant can be released on bail on suitable terms and conditions, subject to further order that may be passed by the higher forum under section 173(8) of the Code of Criminal Procedure - Present order releasing the applicant on regular bail is subject to further order that may be passed by the higher forum under section 173(8) of the Code of Criminal Procedure for further investigation, and it will be open for the respondent No.2 - original complainant to move an application for cancellation of bail of the applicant herein, in case, in future on further investigation under section 173(8) of the Code of Criminal Procedure it is found that the substance found/seized from the applicant is prohibited substance under the NDPS Act

Summary

Issues: Bail application under section 439 of the Code of Criminal Procedure in connection with Criminal NDPS Case No.1 of 2010 involving the Narcotic Drugs and Psychotropic Substances Act, 1985.

Analysis:
1. Nature of Offences and Bail Application: The applicant, accused No.1, filed a bail application under section 439 of the Code of Criminal Procedure in connection with a Criminal NDPS case registered in the Court of the Principal Sessions Judge and Special Court at Bharuch. The case involved offenses under sections 8(C), 21, 23(C), 28, and 29 of the NDPS Act, alleged to have occurred on a specific date.

2. Substance Analysis Reports: The defense argued that the substance seized from the applicant was not a narcotic drug. Reports from the Central Forensic Science Laboratory, Hyderabad, and the Forensic Science Laboratory, Gandhinagar, confirmed that the substance was neither a narcotic drug nor a psychotropic substance. The defense requested bail based on this evidence.

3. Prosecution's Response: The Assistant Solicitor General of India representing the original complainant did not dispute the reports' findings but mentioned the complainant's disagreement with the reports. The complainant sought further investigation under section 173(8) of the Code of Criminal Procedure, which was rejected by the trial court. The complainant intended to challenge this decision in a higher forum.

4. Court's Decision: After considering arguments from both sides, the Court noted the substance analysis reports indicating that the seized substance was not prohibited under the NDPS Act. Given the rejection of the application for further investigation and the applicant's prolonged detention, the Court granted bail on specific conditions. The bail was subject to potential further investigation under section 173(8), with the complainant retaining the right to apply for bail cancellation if the substance was deemed prohibited in the future.

5. Bail Conditions: The Court ordered the applicant's release on bail upon executing a bond and providing surety. The conditions included not misusing the liberty, cooperating with authorities, maintaining law and order, reporting monthly to the complainant's office, disclosing residence and business addresses, surrendering any passport, and complying with all conditions to avoid warrant issuance or other actions by the Sessions Judge.

6. Final Orders: The bail granted by the Court was subject to possible changes based on further investigation outcomes. The complainant had the right to seek bail cancellation if the substance was found to be prohibited later. The Court directed the bail process to be completed before the lower court with jurisdiction over the case, making the rule absolute to the specified extent.