Karnataka High Court: Sreenivas Harish Kumar, J., while dismissing a criminal petition for enlargement on bail, said, “There are prima facie materials against the petitioner; Section 37 of the NDPS Act is very much attracted.”
Brief Facts
1. That the Police Inspector received credible information on 11-6-2020 that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances.
2. That subsequently, the Police Inspector conducted a raid on that house, seized the substances and arrested those persons.
3. That the present criminal petition is instituted to enlarge the petitioners on bail, on the ground (i) non-compliance of standing instructions; FSL report pending (ii) no registration of FIR prior to search (iii) contraband substances were not seized from the ‘conscious possession’ of the accused.
Observations
1. The panchanama discloses recording of reasons by the police officer for not being able to apply for search warrant and also compliance of proviso to Section 42(1) of the NDPS Act. It further states that the search was made in the presence of a gazetted officer, therefore there is due compliance of all the requirements envisaged under NDPS Act.
2. With respect to the contention that, the substances seized were not in the ‘conscious possession’ of the accused, the Court said,
“If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”
3. Ben Okoro v. State of Karnataka, Crl. P. No. 8644 of 2017, In this case, bail was granted to the accused taking note of the fact that the qualitative and quantitative report was not obtained within 15 days as per standing Instruction No. 1/1988.
4. Kelsi Katte Mohammed Shakir v. Superintendent of Customs, Crl. P. No. 5402 of 2018, The position in the above-mentioned case was reiterated.
5. However, in Nonso Joachin v. State of Karnataka, following the Supreme Court decision in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549, The Court said,
“If the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating the existence of prima facie materials about the involvement of the petitioners in commission of offences.”
6. The Court while citing, Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Court made the following observation,
“The focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action.”
Decision
Observing that there are prima facie materials against the petitioner, the Court dismissed the instant criminal petition on the lack of merits. [Tasleem N.P v. State of Karnataka, 2020 SCC OnLine Kar 1533, decided on 01-10-2020]
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