2018 (12) TMI 1305 - HC - Customs

Smuggling - narcotic items i.e., mashed leaves in cake form - baggage rules - seizure of goods - NDPS Act - limitation on granting of bail - Held that - In the absence of chemical analysis test as contemplated under the Instruction, it is opined that though the seized article is considered to be Hashish as per the kit report, in the absence of the chemical analysis report, it cannot be considered and in that light, the accused-petitioner is having a right to be enlarged on bail by imposing some stringent conditions - also though the seized articles is more than the commercial quantity but due to lapse on the part of the department in not getting the report, the benefit of bail has to be extended to the accused-petitioner and in that light, the petition is allowed.

Issues Involved:
1. Legality of the seizure and recovery process.
2. Knowledge and mens rea of the accused.
3. Compliance with standing instructions for drug analysis.
4. Applicability of Section 37 of the NDPS Act in granting bail.

Detailed Analysis:

Legality of the Seizure and Recovery Process:
The petitioner-accused was apprehended at Kempegowda International Airport, Bengaluru, with three bags containing suspected narcotic items. The seizure was conducted by the Superintendent of Customs, Air Intelligence Unit, after being informed by CISF Unit ASG. The petitioner contended that the recovery was not in accordance with law, as the Superintendent of Customs himself made the recovery without informing higher officers as mandated under Section 42 of the Customs Act. The court noted that the recovery was made following the standard procedure, and the seized items were identified as Hashish using a sample test kit.

Knowledge and Mens Rea of the Accused:
The petitioner argued that he was unaware of the contents of the bag, which was handed to him by an individual named Shafeer, who arranged his travel to Doha. The petitioner claimed he was merely doing a favor by carrying the bag. The court noted that the statement recorded under Section 108 of the Customs Act indicated the petitioner’s lack of knowledge about the narcotic contents. However, the court emphasized that the presence or absence of mens rea is a matter to be determined during the trial and not at the bail stage. The court reiterated that no mini-trial should be held while considering a bail application.

Compliance with Standing Instructions for Drug Analysis:
The petitioner argued that the standing instructions issued by the Narcotic Control Bureau mandate that the analysis of the drug must be completed within 15 days from the date of receipt of the sample. The court referred to the standing instructions and previous judgments, highlighting the importance of timely chemical examination and quantitative analysis to determine whether the seized substance qualifies as a commercial quantity. The court noted that non-compliance with these instructions could result in the failure of the investigation. The court found that the chemical analysis report had not been produced within the stipulated time, which is a requirement under the law.

Applicability of Section 37 of the NDPS Act in Granting Bail:
The respondent argued that Section 37 of the NDPS Act imposes additional limitations on granting bail, requiring the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offense and is not likely to commit any offense while on bail. The court acknowledged this provision but emphasized that the absence of a chemical analysis report undermines the prosecution's case. The court concluded that despite the initial positive result from the sample test kit, the lack of a chemical analysis report entitled the accused to bail.

Conclusion:
The court allowed the bail petition, highlighting the failure of the prosecution to produce the chemical analysis report within the mandated time frame. The accused-petitioner was granted bail with stringent conditions, including the execution of a personal bond, surrender of the passport, prohibition from tampering with evidence, and regular attendance at the trial. The court emphasized that the benefit of bail was extended due to the lapse on the part of the department in not obtaining the chemical analysis report.

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