TMI Blog2019 (11) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged offence and that he is not likely to commit any offence, if released on bail. Petition dismissed. - CRIMINAL PETITION No.4448/2019 - - - Dated:- 11-10-2019 - HON BLE MR. JUSTICE P.S. DINESH KUMAR PETITIONER: SHRI. HASHMATH PASHA SENIOR ADVOCATE FOR SHRI. KALEEM SABIR, ADVOCATE RESPONDENT: SHRI. K.N. MOHAN, SPL. P.P; SHRI. MADHUKAR M. DESHPANDE, ADVOCATE ORDER This petition under Section 439 of Cr.P.C. seeking bail, is filed by accused No.2, alleged of offences punishable under Sections 8, 22, 23, 27A, 28, 29 and32B(a) of Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act for short), in NCB File No.48/1/6/19/BZU of Narcotic Control Bureau, Bengaluru Zonal Unit, Bengaluru. 2. Shri. Hasmath Pasha, learned Senior Advocate for petitioner, urged following grounds in support of this petition: (a) that petitioner was kept in illegal detention from 1st May 2019 till he was produced before the learned Special Judge; (b) the garage premises from where contraband was allegedly recovered was not in petitioner s possession; (c) no FI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical conclusion must be that the arrest memo was not served upon him, as otherwise the same would have been recorded in Jama Talashi . Thus, petitioner was detained and continued to remain in illegal custody of NCB from 1st May 2019 till he was produced before Court. 4. Shri. Hasmath Pasha relied upon following authorities: Manoj Vs. State of M.P. (1999)3 SCC 715 (paragraphs No.9 to 13) and submitted that since petitioner was not produced before the Court within 24hours from the time of his detention, prosecution cannot press for further detention. K.A. Abbas Vs. Satyanarayana Rao ILR 1992 KAR 3456 (paragraph No.11) and submitted that High Court has jurisdiction to grant bail even under writ jurisdiction while considering a Corpus writ petition. Nirmal Singh Pahlwan Vs. Inspector, Customs House, Punjab (2011)12 SCC 298 (paragraph No.8) and submitted that Customs Officers exercise police powers and therefore, alleged confession by petitioner is hit by Section 25 of Evidence Act, 1872. Noor Aga Vs. State of Punjab and another (2008)16 SCC 417 (paragraphs No.75 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 (2 of 1974) or any other law for the time being in force, on granting of bail. 10. Therefore, in order to grant bail, Court must record satisfaction on two aspects. Firstly that there are reasonable grounds to believe that petitioner is not guilty of alleged offence and secondly that he is not likely to commit any offence while on bail. 11. The first ground urged by Shri. Hasmath Pasha is that petitioner was detained on 1st May 2019 but he was produced on 4th May 2019. Prosecution claims to have arrested petitioner only on 3rd May 2019. Admittedly, petitioner was produced before the Trial Court on 4th May 2019. The application seeking bail was moved on 7th June 2019. The learned Trial Judge has recorded that the contention with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Vs. Union of India [ W.P.(C) 11416/2015 decided on April 11, 2017] relied upon by Shri. Deshpande. The Delhi High Court was considering a prayer to declare Notification S.O. 311, dated 10th February 2011 as ultra vires the Narcotic Drugs and Psychotropic Substances Act, 1985 and to set-aside the said Notification and entry No. 238E in the Notification S.O. 1430(E) dated 21st June, 2011. In the said case, 1195.2kg of Ketamine Hydrochloride was seized. By recording that Section 3(a) of the NDPS Act has been satisfied and that the Respondent therein could not be held as having exceeded the power in issuing the Notification, the Delhi High Court dismissed the petition. 17. Shri. Hasmath Pasha urged that Ketamine has been included in Schedule X of Drugs and Cosmetics (sixth amendment) Rules, 2013. He placed reliance on paragraph No.13 of Sridhar Punachithaya. K Vs. The Intelligence Officer (Criminal Petition No.3468/2016decided on 28th June 2016) and contended that this Court has held that There is no dispute that Ketamine is covered under Schedule to the Act, but there is no specific substance for Ketamine Hydrochloride which is covered under the Act or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, the NDPS Act intends to curb and penalise the usage of drugs whi ch are used for intoxication or for getting a stimulant ef fect. 20. After adverting to Union of India and Another Vs. Sanjeev V. Deshpande (2014) 13 SCC 1 , it is further held as follows: 13. Section 22 prescribes the punishments for the violation of various activities prohibited under Section 8(c) . Depending upon the quantity of the psychotropic substance involved in the case, the punishment prescribed also varies. If the quantity is small, the punishment extends upto 6 months. The expression small quantity is defined under Sectio n 2 (xxiiia). If the quantity is less than commercial quantity as defined under Section 2 (viia), but gre ater than the small quantity, the punishment may extend upto 10 years of rigorous imprisonment apart from f ine. When the quantity exceeds the commercial quantity, the punishment extends upto 20 years and carries a fine upto 2 lakhs and for special reasons even more. Section 23 prescribes the punishment for illegal import to In dia of export out of India of narcotic d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Therefore, the contention urged by Shri. Hasmath Pasha that petitioner is required to be tried only for violation of Drugs and Cosmetics Act, is also untenable. 22. So far as satisfaction of this Court under Section 37 is concerned, it is relevant to note that in his statement recorded under Section 67 of NDPS Act, petitioner has stated that Ketamine drug manufacturing work was introduced to him by his friend Shahul Hameed. He was trained in manufacturing Ketamine by P. Venkateshwarulu (accused No.3). He has delivered ten batches of Ketamine drug in two years to customers as instructed by Shahul and Mahil. 23. Petitioner has also given detailed description as to how the drug in question is manufactured. In Annexures A to C appended to the Panchanama drawn at petitioner s house, apparatus used to manufacture the drug and various documents have been seized which include a photocopy of the driving licence in the name of Mahesh Uthappa . 24. The voluntary statement also reveals that petitioner had obtained driving licence in the name of Mahesh Uthappa. The inventory of seized items anne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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