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TMI Blog2018 (12) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... to release him on bail for the offences punishable under Sections 9 and 23 of N.D.P.S. Act and under Sections 114 and 135 of the Customs Act, 1962 in O.R.No.16/2018-19 CUS AIU of Superintendent of Customs, Air Intelligence Unit, Bengaluru International Airport, Bengaluru. 2. I have heard learned counsel Sri. Lethif B. forthe petitioner and learned Central Government Senior Standing Counsel Sri. Vikram A. Huilgol for the respondent. 3. The brief facts of the case are that on 29.06.2018 at 02:30 hours, the Superintendent of Customs, Air Intelligence Unit, Kempegowda International Airport, Bengaluru was informed that CISF Unit ASG,Bengaluru, Kempegowda International Airport has suspected a passenger by name Sri. Kelsikatte Mahammad Shakir during Pre Embarkation security check and found, three bags of suspected narcotic items (mashed leaves in cake form) weighing three kgs in the hand baggage of the said passenger, who was supposed to travel from Bengaluru to Doha by flight No.QR 537 and the said passenger was handed over to the Customs for further necessary action and thereafter, necessary Mahazars were drawn and the case was registered in this behalf. 4. It is the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contraband article. In order to substantiate his contentions, he relied upon the decision in the case of INSPECTOR OF CUSTOMS vs. MS. DAPHIRA WALLANG reported in ILR 2010 KAR 190 and also the decision of the Hon ble Apex Court in the case of UNION OF INDIA vs. BAL MUKUND AND OTHERSreported in (2009) 12 SCC 161 and one more decision in the case of CHANDRU KUNTHUR RAGHUVEGOWDA vs. STATE BY INSPECTOR OF CUSTOMS in Criminal Petition No.303/2017 dated 28.04.2017 and Criminal Petition No.7943/2017 in the case of RAMEEZ RAAZ vs. STATE OF KARNATAKA BY MANGALURU NORTH POLICE STATION, DAKSHINA KANNADA DISTRICTdated 30.10.2017 and prayed to allow the petition and to release the accused-petitioner on bail. It is his submission that the accused-petitioner is ready to abide by any of the terms and conditions that may be imposed by this Court and also ready to offer sureties, if he is released on bail. On these grounds, he prays to allow the petition. 6. Per contra, the learned Central Government Senior Standing Counsel submitted that the provisions of Section 37 of the NDPS Act, 1985 is in addition to the provisions of Section 439 of Cr.P.C. The limitation of granting bail comes only when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not having any Mens-rea and knowledge that the contents of the said bag was Hashish and it is prohibited narcotic drug. He also referred to the statement recorded under Section 108 of the Act when the accused-petitioner was examined. That itself clearly indicates that he was not having any knowledge and the same is also admissible under the said Act. Though the statement which has been recorded under Section 108 of the Act reveals that the accused-petitioner has stated so it is a matter which has to be considered and appreciated only at the time of trial. At this pre-mature stage, it cannot be held that the accused-petitioner was not having any mens-rea at the time, when he was carrying the bag. It is well settled principle that no mini trial be held while considering bail application. 11. I am conscious of the fact that in a criminal case the presence/absence of mens-rea is the basic principles of criminal law but it is too early to come to the conclusion that mensrea is not there and I am also conscious of the fact that I am adjudicating with a petition filed under Section 439 of Cr.P.C., and not under Section 482 of Cr.P.C. In that light, the submissions made by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al quantity, so as to know as to what punishment he is liable. If the quantity is of smaller quantity, the punishment is only six months, if it is more than smaller quantity and less than commercial quantity, the punishment is extendable upto 10 years and fine and if it is more than commercial quantity, the punishment is upto 20 years and minimum is 10 years and in case of commercial quantity the investigation can be done upto 180 days. 6. From the provision of the Act it is clear that, the chemical and quantity analysis has to be done at the earliest. Purpose of chemical examination is to find out the contents of Narcotic drug, if the chemical examination is delayed, there is every possibility of substance losing its character and on account of default in doing chemical examination at the earliest, it will result in failure of investigation and to book the accused for the said crime. But it is unfortunate that these matters are not seriously viewed by the authority, and their lapse yield to the benefit of the accused. Even the Hon ble Apex Court in the case of UNION OF INDIA quoted supra at para Nos. 36 and 37 has observed as under:- 36. There is another aspect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances and Section 37 dealing with bail. They read as follows: 2. (xxiii) psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule; 37. offences to be cognizable and non-bailable- (1) Notwithsatnding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C. and even it has been observed that the Court has to satisfy itself that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and is not likely to commit any offence while on bail. If it is looked into, I am not having any difference of opinion with regard to the said proposition of law laid down by the Hon ble Apex Court but while laying down the said proposition of law, the Hon ble Apex Court has not considered the aspect of standing instruction issued by the Narcotic ControlBureau under Instruction 1.18. The instruction so issued under 1.18 mandates that the Narcotic Control Bureau should have the chemical examination done within 15days from the date of submittal and the said instruction is a mandate issued by the respondent himself. In theabsence of any such report, though as per the records the seizure is made seizing three kgs of Hashish and even the preliminary test was also conducted in this behalf by the concerned authority by using the Test Kit Instruction and the said Test Kit Instruction has also given the result that appearance of dark brown colour confirms the presence of Hashish, narcotic substance covered under the N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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