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TMI Blog2019 (9) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... sion i.e., the Public Prosecutor has to be given an opportunity to oppose the application and secondly, the court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. The non compliance of mandatory provisions are also to be taken into consideration by the courts while dealing with the bail matters particularly u/s.37 of the Act. If the mandatory provisions are not strictly followed, if it would otherwise prejudice the accused, in such an eventuality, the rigor of Section 37 of the NDPS Act will be diluted in such an eventuality, the accused may be entitled to be released on bail. Under section 37 of the Act, the court has to tentatively make an evaluation to find out that, the accused was not guilty for the purpose of granting bail. If any doubt arises, in such an eventuality, an opportunity should be given to the prosecution to establish the same - In this particular case also, the quantitative analysis is also detected i.e., the entire 400 grams contained Cocaine and out of that, 5 grams was taken out in the presence of the panch witnesses. When such pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner herein) was traveling in seat No.16L. The NCB have waited till the bus reached last stop around 17.30 hours and thereafter, when the said lady about to get down from the bus, at that time, she was intercepted by NCB team in the presence of the independent witnesses. On asking, she has introduced herself as Irene Omoibe @ Iryan andidentified herself as a Nigerian. Upon asking for her Identity card or passport, she said that she does not possess any ID card and also she does not possess any valid passport with her. The NCB officials informed her about the information received by them. On inquiry, though initially she said that, she did not possess any Narcotic drugs, but when she was asked to open her black colour hand bag, she has admitted that there is Cocaine concealed in her bag but due to fear of getting caught she did not reveal it at the first instance and showed four ball shaped packets wrapped with brown colour adhesive tape containing Cocaine kept inside her bag. She has also told the NCB police that she has to deliver the said Cocaine to one Victor and his two associates named Kenneth Jideofol and Marwan Faisal Mohammad of Kammanahalli. As per the information, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon ble Apex Court reported in (2017) 8 SCC 162 between Hira Singh and another and Union of India another and also in E.Micheal Raj s case (2008) 5 SCC 161, if the qualitative and quantitative analysis of the substance seized is not produced, it would be fatal to the prosecution case. The quantitative and qualitative analysis has not been obtained as per the standing instructions issued by the NCB, New Delhi vide Standing Instruction No.1/88 within 30 days. Therefore, the entire proceedings are vitiated. Hence, the petitioner on that technical ground itself, entitled to be enlarged on bail. 7. Per contra, the learned counsel appearing for the respondent NCB submitted in respect of Standing Instruction No.1/88 that though there are guidelines, but the respondent is still had an opportunity to prove the quantity of the seized articles at the time of trial. Therefore, an opportunity requires to be granted to the respondent. He has further contended that as there was no actual search, as the petitioner herself opened her bag and produced the said contra band articles, and thereafter, seizure was effected. Therefore, there was no violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... searched and thereafter, Cocaine a contraband article alleged to have been seized and she was not actually searched by anyfemale police. Therefore, the procedure has not been followed, on that ground also, the accused is entitled for grant of bail. 10. Of course, Section 37 of the NDPS Act says that twin-conditions have to be adhered to by the court while dealing with the parameters of Section 439 of Cr.PC. The NDPS Act is an Act enacted with an object to make stringent provision for control, regulation and operation relating to NDPS Act. It is a special enactment, Section 37 of the Act, states that a non-abstante clause and is in negative terms limiting the scope and applicability of the provision of criminal procedure for bail. The non abstante clause with which Section 439 of Cr.PC., should be given with true manner and clearly it is intended to restrict the power to grant bail. The power to grant bail under any of the provisions of Cr.p.c. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act. 11. Section 37 of the NDPS Act, postulates the following conditions: 37. Offences to be cognizable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the above said grounds raised by the learned counsel. 15. The first ground as noted above with reference tosearch and seizure, according to the learned counsel has not been done, according to the mandatory provisions. 16. As I have already narrated, the factual matrix of the case, the NCB Police though they have taken the accused to their physical custody, have not searched her at any point of time in the SRS Bus or immediately, after she got down at Kalasipalya bus stand. It is very much clear in the panchanama drawn in the presence of panch witnesses that they only asked whether she could be searched by any officer in the presence of any Gazetted Officer and she refused for the same but she voluntarily opened her bag and produced the contra band articles i.e., four balls type packets containing Cocaine. There are two different connotations with reference to search and seizure. If there was a search as such and if there was any reasonable opportunity to produce by the accused or if the accused should be searched in the presence of a Gazetted Officer, then only Section 50 and 52 of the Act will come into play. If on request by the police without th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the sample, but the court has examined in this context that, the articles were actually seized in the presence of panch witnesses after detecting the contra band article contained Cocaine to the extent of 400 grams by testing the same with the help of Field Drug Detection Kit. Of course, the panch witnesses and the NCB Officers who have signed the Mahazar have categorically noted in the Mahazar that the said four balls contained 400 grams of Cocaine and out of those four balls by using the Field Drug Detection Kit, they haveascertained that those contained Cocaine. The said powder answered positive result to Cocaine. Therefore, at this stage, though there is some infraction with regard to sending of the sample for the quantitative analysis, but still the mahazar discloses that there was 400 grams of Cocaine in possession of the accused was detected, through the Field Drug Detection Kit, which prima facie establishes at this stage the commercial quantity of a narcotic drug in possession of the accused petitioner. Therefore, in my opinion, an opportunity has to be given to the prosecution to establish that the accused possessed the contra band article exceeding the commercial quan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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