IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION No.6333/2013

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 17 TH DAY OF MARCH 2014 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION No.6333/2013 BETWEEN: Smt. Radha Velu, R/at Old No.524A, 12 th Cross, B.V. Colony, Vyarapadi, Chennai , New No.504, 12 th Street, Bakthavachalam Colony, Sharma Nagar, Chennai, Tamil Nadu PETITIONER (By Sri. Harish A. Charvaka, Adv.) AND: The Superintendent of Customs, Air Intelligence Unit, Bangalore International Airport, Bangalore RESPONDENT (By Sri.P.S. Dinesh Kumar, Sr. Standing Counsel) This criminal petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Spl. C.C. No.28/2013 pending on the file of the XXXIII A.C.C. and S.J. and Spl. Judge, (N.D.P.S), Bangalore, for the offences punishable under Sections 22(c), 23(c), and 28 of the N.D.P.S. Act.

2 2 This petition having been heard and reserved for orders, coming on for pronouncement of orders, this day, the Court made the following: ORDER This petition is filed by the petitioner-accused No.1 under Section 439 of Cr.P.C. read with Section 37 of Narcotic Drugs and Psychotropic Act 1985 seeking her release on bail of the offences punishable under Sections 22(c), 23(c), and 28 of the said Act. 2. Brief facts of the case are that on 03/08/2012, at about hours, the immigration officers at Bangalore International Airport, Devanahalli, Bangalore informed that one lady passenger Smt. Radha Velu, the petitioner herein was a frequent traveler and had suspicious behaviour. The Customs Officer of the Air Intelligence Unit at Bangalore International Airport intercepted the passenger namely Smt. Radha Velu who was bound for Kaula Lumpur by Malaysian Airlines Flight NO.MH193 of 04/08/2012 scheduled to leave at 0045 hours suspecting that she might be carrying some contraband in her baggages. The passenger along with her baggage was brought to the office of the Air Intelligence Unit.

3 3 It appeared that the above passenger was carrying drugs covered under the Narcotic Drugs and Psychotropic Act 1985 (for short the NDPS Act ) and hence, the said passenger was thoroughly interrogated regarding her identity, travel plans, the goods that she was carrying etc. and her voluntary statement was recorded under section 67 of the NDPS Act. 3. It is alleged that the checked-in-baggage of the petitioner was taken up for verification, which was blue coloured back pack with marking PUMA on it, and two hand bags viz; green coloured duffle bag and multi coloured vanity bag. The checked in baggage had tag No.EYCL After confirming that the baggage was checked in by the petitioner, the same was opened and examined by the lady officer of AIU. On thorough verification, it was found that the blue coloured back pack in possession of pax was found to contain new ladies garments and other garments. The said checked in bag was found to be heavy even after emptying the sarees and garments. Hence, on suspicion of concealment of contraband, the emptied bag was scanned and found to contain concealed pouches. The front and back

4 4 walls of the bag, the front pocket as well as the shoulder straps were found to be thick and therefore, each portion was cut open. On cutting open each portion, black coloured cloth pouches were found to be concealed in each portion which were wrapped in blue carbon paper. On cutting open each of the black colored cloth pouch, they were found to contain white colored crystalline powder. The contents of the pouch emptied into four plastic covers and were weighed in and were found to contain 66g, 1830g, 700g and 1630g of the said powder totally weighing 4.82 kgs. 4. It is further alleged that the officers of Customs drew a pinch of the substance and tested for known narcotic substance in the GE ITEMISER testing machine, the result of the test stated that the said contraband is KETAMINE vide report Sl.No dated The said contraband seized under a mahazar and samples were sent to the Director and Chemical Examiner Customs House, Forensic Science Laboratory, Chennai for quantitative and qualitative Test. The Superintendent of customs on the reasonable belief that the said white crystalline powder appeared to be

5 5 KETAMINE arrested the petitioner and produced before the Special Court for the NDPS Offences and remanded to Judicial Custody. On the basis of the said complaint, the case was registered by the respondent police against the petitioner-accused No The prosecution opposed the petition by filing objection statement wherein, it is stated that the prosecution has made out prima facie case about the involvement of the petitioner in the commission of the alleged offence. The prosecution further opposed grant of bail to the petitioner. 6. I have heard the learned Counsel appearing for the petitioner-accused No.1 and the learned Special Public Prosecutor for the respondent-state. 7. Learned Counsel for the petitioner, during the course of the arguments, submitted that the material said to have been seized comes under the drugs and cosmetics and it is not a contraband article. It will not come under the schedule I of the NDPS Rules, It is submitted that the

6 6 Central Government issued a notification through Ministry of Health and Family Welfare dated 16/3/2006 and certain items were included to schedule-h and Katamine Hydrochloride alleged to have been possessed by the petitioner comes under list 269 of Drugs and Cosmetics. The learned counsel made submission that there is no prima facie case made out by the prosecution to show the involvement of the petitioner in the commission of the alleged offence. He also submitted that the alleged confession statement said to have been given by the petitioner is not at all admissible as per Section 25 of the Evidence Act. Therefore, it cannot be used against the petitioner. He further submitted that the petitioner is not at all involved in the other criminal cases and not having criminal antecedents. Even according to the prosecution case, the FSL report is not mentioning the percentage of drugs in the alleged contraband article. The learned counsel submitted that, the petitioner is a woman. Now the investigation is completed and the charge sheet has been filed. By imposing reasonable condition, she may be admitted to bail. In support of his contention, the learned

7 7 Counsel relied upon the following decisions filed along with the memo dated Notification dated issued by the Ministry of Health and Family Welfare 2. Shri Soman Ananthan Vs. The Superintendent of Customs (Crl.P. No.938/2013 D.D ) 3. Shri Selvaraj Palani Vs. The Intelligence Officer (Crl.P. No.6651/2012 D.D ) 4. Rajinder Gupta and etc. Vs. State (2006 Crl.LJ 674) 5. State of Uttaranchal Vs. Rajesh Kumar Gupta [(2007)1 SCC 355)] 6. Ashraf Vs. State of Kerala (2010(1) Crimes 524) (Ker) 7. Sami Ullaha Vs. Superintendent, Narcotic Central Bureau (2009 Crl.LJ 1306) 8. E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau [(2008) 5 SCC 161)] 9. U.O.I. Vs. Bal Mukund and others (2009 Crl.LJ 2407) 10. Nirmal Singh Nimma Vs. Inspector, Customs, Customs House, Punjab (2011)12 SCC 298) 11. Statement of the accused recorded by the respondent in another proceedings.

8 8 8. As against this, the learned Sr. Standing Counsel appearing for the respondent during the course of the arguments submitted that the petitioner gave confessional statement wherein she has admitted that she was carrying contraband article. It was contended that the petitioner was told by one Ameed and another person that the Katamine Hydrochloride comes under the drugs category and it is not a contraband article. Hence, the learned Sr. Standing Counsel submitted that this itself goes to show the involvement of the present petitioner in the commission of the alleged offence. He submitted that Katamine Hydrochloride comes under the contraband article at Sl. No.110A in Schedule-H appended to NDPS Act. He also submitted that the airport authorities in the presence of panch witnesses conducted seizure mahazar and seized the contraband article Katamine Hydrochloride. The said seizure it goes to show that the petitioner possessed the contraband article. He also submitted that in view of the laboratory test, the Katamine Hydrochloride comes under the prohibited article. It is submitted that before grant of bail, the Court is to be satisfied that during the period of

9 9 bail, the petitioner is not going to commit any other offence. He further submitted that on earlier two occasions also, the petitioner admitted that she had been to Koulalampur. This itself goes to show that the petitioner is involved in the transportation of prohibited articles. Since the offence alleged is a serious offence, the petitioner is not entitled for grant of bail. In support of his contention, the learned Sr. Sr. Standing Counsel relied upon the following decisions he has filed the memo dated Customs, New Delhi Vs. Ahmedalieva Nodira (2004 Crl.LJ 1810) 2. Union of India Vs. Rattan Habul (2009 Crl.LJ 3042) 3. S.P. Rajapandian Vs. The Senior Intelligence Officer, DRI (W.P. Nos /2010 D.D ) 9. I have perused the averments made in the bail petition, FIR and the complaint. I have also perused the voluntary statement of the petitioner which is produced by the learned Sr. Standing Counsel as per Annexure-R1 along with objection statement.

10 Looking to the materials on record and also the decisions relied on by both sides, the seized article Katamine Hydrochloride is not at all mentioned either in Schedule I, II or III appended to NDPS Rules, It is no doubt true that the said contraband article is mentioned at Sl. No.110A of Schedule H to the NDPS Act. Looking to the decisions relied upon by the learned Counsel for the petitioner unless and until the contraband article is shown in schedule I of the NDPS Rules, it cannot be said that it is a prohibited article. 11. Perused the notification dated produced by the learned Counsel for the petitioner. The said notification was issued by the Central Government through the Ministry of Health and Family Welfare, who has added some of the Drugs to schedule-h in the Drugs and Cosmetic Rules, Perusing the said list of drugs at Sl. No.269, Katamine Hydrochloride is also shown as one of the drugs. So also, I Have perused the other decisions relied upon by the learned Counsel for the petitioner and the decisions relied on by the learned Sr. Standing Counsel for the

11 11 respondent. Regarding confessional statement said to have been made by the petitioner, the Sr. Standing Counsel relied on by Customs, New Delhi s case (supra). In the subsequent decision relied upon by the learned Counsel for the petitioner in Nirmal Singh Pehlwan s case (supra), the Hon ble Supreme Court held as under: B. Narcotic Drugs and Psychotropic Substances Act, 1985 Ss.53 and 22 case of Customs Officer investigating and bringing accused for trial in a narcotics matter conviction under S.22, on basis of confession made by accused to Customs Officer Held, such confession is hit by bar under S.25, Evidence Act, and therefore, not admissible Conviction, held, thus not proper and reversed Evidence Act, S.25 Bar under If available regarding confession made before Customs Officer under S.108, Customs Act Determination of Customs Act, 1962, S Therefore, looking to the principle enunciated in the said decision, the confessional statement said to have been given by the petitioner cannot be relied upon at this stage and ultimately, it is for the trial court during trial to take a decision about the same. As it is rightly submitted by

12 12 the learned Counsel for the petitioner that even the percentage of drugs is also not mentioned in respect of the alleged contraband article, perusing the mahazar said to have been drawn by the Airport Authority, it is no doubt true that as per the case of the prosecution after the petitioner checked in baggage-back pack, the same was scanned and taken to the custody of the Airport authorities. But it is the case of the prosecution that subsequently and when it was suspected that the back pack checked in baggage was offloaded by the airport authorities, it was opened in the presence of the petitioner. It is noticed that it contained prohibited article Katamine Hydrochloride. Perusing the entire contents of the said mahazar, nowhere it is mentioned that when the back pack checked in baggage was offloaded and brought to the airport authorities for inspection and verification of the same. It is also not mentioned as to whether the bag was locked and who had the key and how they opened the bag. There is also no mention that the back pack was brought back after offloading for verification, they got key from the petitioner and opened from the key produced by the petitioner. Under these circumstances and

13 13 when the said contraband article is not seized from the exclusive possession of the petitioner at the time of seizure and the fact that it was already checked in and given to the airport authority after scanning, now it cannot be said that there is prima facie material placed by the prosecution that it was seized from the exclusive possession of the petitioner which fact is to be ascertained during the course of the trial by the trial court after recording the evidence in the case. 13. With regard to contention of the learned Sr. Standing Counsel for the respondent that before grant of bail, the Court is to be convinced that during the period of bail, the petitioner will not be involved in the commission of the other offences or the similar offences. I have already observed that there are no materials placed by the prosecution to show the involvement of the petitioner nor any other crimes said to have been committed by the petitioner. In the bail petition, it is contended that the petitioner is innocent and she is falsely implicated in the case. The petitioner has undertaken that she is ready to abide by any condition that may be imposed by this Court.

14 14 Therefore, looking to the factual aspect as well as the legal aspect as per the decisions relied upon by the learned Counsel for the petitioner so also the learned Sr. Standing Counsel, I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner, who is a woman. So far as the contention that the petitioner is a native of Chennai, Tamil Nadu State, stringent condition can be imposed to secure her presence before the investigating officer or before the trial court. 14. In the result, the petition is allowed. The petitioner is ordered to be released on bail of the offence punishable under Sections 22(c), 23(c), and 28 of the Narcotic Drugs and Psychotropic Act 1985, registered in Spl. C.C. No.28/2013 pending on the file of the XXXIII A.C.C. and S.J. and Spl. Judge, (N.D.P.S), Bangalore, subject to following conditions:- I. The petitioner shall execute bond for a sum of Rs.1,00,000/- (Rupees One lakh only) and shall offer two solvent local sureties for the like sum to the satisfaction of concerned Court.

15 15 II. The petitioner shall not intimidate or tamper with prosecution witnesses, directly or indirectly. III. The petitioner shall attend the concerned Court regularly. IV. The petitioner shall not leave the place without prior permission of the concerned Special Court. V. The petitioner shall not indulge in similar acts to the one alleged in the case. Cs/- Sd/- JUDGE