TaxTMI 
TaxTMI 
2018 (12) TMI 1305
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.... 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 of the learned counsel for the petitioner that the petitioner-accused was not aware of the contents of the bag as the said bag has been handed over to him by one Sri. Shafeer of Gandhinagar who arranged the tickets and VISA for him to go to Doha for the purpose of ascertaining the job and requested him to do a favour to carry his bag containing his personal items and as per his instructions, he has to hand over the said bag to the person in Doha who will be waiting outside the Airport. He further submitted that even recording of the statement of accused has also been done by the Investigating Agency under Section 108 of the Customs Act (herein after called 'Act') and the same thing has been ....
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....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 the question of granting bail arises on the merits, apart from granting of opportunity to the public prosecutor. He further submitted that if there is prima facie reasonable grounds to believe that the accused-petitioner is involved in the alleged offence which is punishable under N.D.P.S. Act, then under such circumstances, the Court can reject the bail application. 7. He further submits that the quantity of the Hashish which is said to have been seized from the possession of the accused-petitioner is more than the commercial quantity. At this stage, it can be said on the basis of sample test kit instruction given positive result that if is the Hashish seized from the accused-petitioner. ....
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.... 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 counsel for the petitioner is not acceptable. 12. It is the second contention of the learned counsel for the petitioner that as per the standing instructions of the Narcotic Control Bureau, the analysis of the drug has to be completed within 15 days fromthe date of receipt of the sample. For the purpose of brevity, I extract the said instruction which reads as under:- 1.18 Expeditious Test Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings of N.D.P.S. Act, 1985. In many cases the court may refuse to extend Police/Judicial remand beyond 15 days for absence of a chemical report. Accordingly, it is essential that the analysis....
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....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 the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law. 37. There is another infirmity in the prosecution case. Section 55 of the Act reads as under:- "55. Police to take charge of articles seized and delivered.- An officer in charge of a police station shall take charge of and keep in safe custody, pen....
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....ct 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 (2 of 1974), or any other law for the time being in force on granting of bail." 9. As observed by this Court in Union of India v. Thamisharasi clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 10. The limitations on granting of bail come in o....
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....rcotic 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.D.P.S. Act, but that is not the only substance which has been enumerated. If the said test alone has to be considered, then under such circumstances, the question of issuing instructions separately under instruction 1.18 ought not have aroused. 17. Keeping in view the above said facts and circumstances of the case and in the absence of chemical analysis test as contemplated under the Instruction, I am of the considered opinion that though the seized article is considered to be Hashish as per the kit report, in the absence of the chemical analysis report, it cannot be considered and in that light, the accused-....