EJEM PETER Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned counsel for the respondent.

(2.) The petitioner is before this court seeking bail. The Trial Court has rejected the application for bail. It was claimed that out of the quantity said to have been seized of narcotic drugs and psychotropic substances, samples were drawn in small quantities namely, 5 grams, 125 gram and 415 grams of Cocaine and 5 grams and 260grams of Hashish and another packet containing 66 grams of cocaine and sent to the Forensic Science Laboratory (FSL). It is at this stage that the bail was sought. The trial court has taken a view that in terms of the decision of the apex court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, 2011 1 SCC 694, where guidelines have been issued as to the parameters to be taken into consideration for grant of bail in such cases and the observation of the Supreme Court that just as the liberty is precious to an individual, society's interest in maintenance of peace, law and order is also important and therefore, in the interest of the society, to safeguard against the population being supplied such drugs, it was necessary to reject the bail application of the petitioner, who was accused of dealing in drugs.

(3.) The learned Counsel Shri Hashmath Pasha raises an important question as to the prima facie requirement of demonstrating that even if it is assumed that the substances seized from the person of the petitioner were narcotic drugs and psychotropic substances, it would be necessary for the prosecution to demonstrate in the first instance that it was a quantity which could be considered as commercial quantity and which could attract a stringent punishment and that the substances seized were indeed narcotic drugs and psychotropic substances which could be classified as any of the items falling under the Notification appended to the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as the 'NDPS Act', for brevity). In this regard, he would now furnish a copy of the report of the test carried out on the samples that were sent to the FSL and would point out that out of the five items, article No.1 had responded positive for the presence of charas and it was not indicated as to what was the percentage of charas that was found. Insofar as articles no.2 and 5 are concerned, it is again found that they were found positive for the presence of cocaine and paracetamol. Insofar as articles no.3 and 4 are concerned, there was negative report for the presence of cocaine. Therefore, the report only was a qualitative analysis of the samples that were sent for examination. Coupled with such qualitative test, a quantitative test also requires to be conducted and the quantitative test must again indicate that the narcotic drug or psychotropic substance was of a percentage which would render the substance so seized as being of a commercial quantity. As for instance, if what is alleged to be cocaine, contained cocaine only to some percentage and if it was adulterated with other substance, it could not be construed as cocaine quantifying as a commercial quantity. This will enable the accused to straight away have the benefit of doubt as to the alleged quantity that was seized as being narcotic drug and psychotropic substance. In the face of the report indicating that two of the samples tested negative for the presence of any narcotic substance, it was very significant that the quantitative test also be conducted on the material that was seized. A charge sheet along with the entire documents relied upon by the prosecution is produced and it is evident that no quantitative test has been carried out. In this regard, the learned Counsel would draw attention to the Central Rules and Notifications, published by the Customs and Central Excise Department, New Delhi, particularly, with reference to Standing Instruction No.1188 with regard to drawal, storage, testing and disposal of samples from seized narcotic drugs and psychotropic substances and the procedure prescribed therein. It is contended that Standing Instruction No. 1.18 relates to expeditious analysis of narcotic drugs and psychotropic substances and the same reads as follows:-