TaxTMI 
TaxTMI 
2019 (9) TMI 1101
X X X X Extracts X X X X
X X X X Extracts X X X X
....ibe @ Iryan (petitioner herein), aged around 25 years, was traveling from Mumbai to Bengaluru in SRS Travels Bus bearing Registration No.PY-01/CC-1357, is in possession of substantial quantity of Cocaine, a Narcotic drug and she is likely to get down at Kalasipalya, bus stand, Bengaluru. Immediately, the respondent NCB with sufficient staff, went near Nelamangala toll gate and intercepted the SRS bus around 14-15 hours and on surveillance over the said lady in the bus, they showed their identity cards to the driver and conductor of the said bus. The NCB Officers also requested the conductor of the said bus to be an independent witness. After checking the list of passengers in the bus, it is confirmed that one Nigerian lady (petitioner 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 I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid four balls contained Cocaine. 5. The learned counsel for the petitioner strenuously contends that the procedure followed by the NCB is not proper and correct. There is no proper search and seizure of the article as contemplated u/s.50 of the NDPS Act. As per Section 52 of the Act, a lady has to be arrested and searched by another female Police Officer, but the said mandate of law has not been followed. He has further contended that only qualitative analysis has been made, but no quantitative analysis has been made and thereby violated the circular issued by the competent authorities in No.1/88. 6. It is also contended by the learned counsel for thepetitioner that in view of the 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 proc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case." 9. Relying upon the above said decision, the learnedcounsel submitted that in this case also, the petitioner's bag was 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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. Bearing in mind, the court has to examine 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the seized bags sent for analysis and whether contraband was found in them - Held, these are infirmities in prosecution case." 20. The learned counsel submitted that taking sample for qualitative and quantitative analysis is a legal requirement which has not been done in this case also. Of course, there is some infraction in taking 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, t....