1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(BAIL) NO. 234 OF 2008 Hendrik R. Ribbius, Presently in Judicial Custody, Sada, Vasco, Goa. ... Applicant versus State of Goa, Through Officer-In-Charge, A.N.C. Police Station, Panaji, Goa. ... Respondent Mr. Jos. Peter D'Souza, Advocate for the Applicant. Mr. C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 29TH SEPTEMBER, 2008. ORDER The accused who is charged under Section 22(c) of the N.D.P.S. Act, 1985 in Special Criminal Case No.7 of 2008 has sought bail, the same having been denied to him by the learned Special Court, on four occasions. 2. The accused was arrested on 19-12-2007 near Hill Top Restaurant, Vagator, on the basis of prior information, when the accused was found in 2 possession of 35 gms. of LSD(Lysergic Acid Diethylamide) which the accused failed to account. The report of analysis from the C.F.S.L., Hyderabad was received on or about 28-4-2008 and charge-sheet against the accused was filed on 3-6-2008. 3. In the course of the trial, the Senior Scientific Officer from the C.F.S.L., Hyderabad, came to be examined and her evidence shows that the said C.F.S.L. had received a sealed envelope on 27-12-2007 for the purpose of analysis containing four sheets of paper, two were intact and having 20 x 25 = 500 parts, the third one was having 20 x 24 = 480 parts, the fourth having 465 parts and the total number of parts in the said four sheets of papers was 1945 and the weight 35 gms. As per the said Senior Scientific Officer there was no request for quantitative analysis to be made and as such no quantitative analysis was made as their laboratory does not perform quantitative test unless it is specifically asked for. The said Senior Scientific Officer stated that she had analyzed the said four sheets which showed the presence of LSD in the paper sheets but she could not say whether the said paper sheets were containing fully pure LSD. The said Senior Scientific Officer admitted that their laboratory has very sensitive and advance technology wherein even micrograms, nanograms and picograms can be identified and even LSD can be detected having weight in micrograms. In other words, till date, no quantitative test of LSD contents of the said four sheets of paper has been conducted and it is otherwise not disputed that the learned Special Judge at the request of the prosecution has now ordered a quantitative test to be made by Order 3 on Exh.15, date of which is not disclosed, but it can certainly be presumed that it was ordered to be done prior to 19-8-2008. 4. In rejecting the bail application the learned Special Judge has, inter alia, observed that since the Court has allowed permission to conduct quantitative test to find out the actual weight of LSD it could not be said that the percentage of weight could be below commercial quantity and as such he was not inclined to enlarge the accused on bail. 5. All the three contentions raised before the learned Special Court have also been raised before this Court. There is no dispute that 0.1 gm. has been declared as commercial quantity and 0.002 gms. has been declared as small quantity. 6. Firstly, it is contended on behalf of the accused, that the prosecution has not made out a case that the quantity found with the accused is commercial quantity. Learned Counsel on behalf of the accused contends that Section 36(A)(4) of the Act gives the investigating agency 180 days to complete the investigations and within the said period the investigating agency ought to have established that the accused was found with commercial quantity. Learned Counsel further submits that in case it was not possible to complete the investigations within the said period of 180 days, the Special Court could have extended the said period up to one year upon the report of the Public Prosecutor 4 indicating the progress of investigation and the specific reasons for the detention of the accused beyond the period of 180 days. Learned Counsel further submits that since the prosecution has prima facie not proved that the quantity is commercial, within the time given to them for investigating the case, the accused is entitled to bail. 7. On the other hand, learned Public Prosecutor has referred to sub-section (6) of Section 173 of the Code(Code of Criminal Procedure, 1973) and has submitted that they are free to carry on further investigations. 8. Learned Counsel on behalf of the accused has placed reliance on various authorities. I have perused the same and reference to them will be made when necessary and if required. 9. Section 37 of the Act makes the offence under the Act to be cognizable and non-bailable and sub-section (1) clause (b) provides that no person accused of an offence punishable under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity 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 5 such offence and that he is not likely to commit any offence while on bail. It is now well settled that the language of Section 27(1)(b) of the Act is such that the Court must adopt a negative attitude towards bail but turn positive firstly if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the Act and secondly, that he is not likely to commit any offence while on bail. 10. The Apex Court in Union of India v. Thamisharasi and others(1995 DC 129/(1995) 4 SCC 190) has held that the limitations on granting of bail in clause (b) of sub-section(1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint during the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr. P. C. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the Court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The Apex Court has further held that sub-section(3) of Section 36-A of the Act provides that the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure shall not be affected by anything contained in Section 36-A of the Act. Sub-Section(2) of Section 167 Cr. P. C. has been expressly applied by Section 6 36-A of the Act and the scheme of the Act is that the provisions of the Code would apply except where there is any inconsistent provision in the Act in relation of arrest made under the Act. It is this context in which Section 37(1)(b) has to be construed wherein are specified the limitations on granting of bail. We must, therefore, look to the corresponding provision in the Cr. P. C. with which Section 37(1)(b) of the Act can be treated to be inconsistent. In the Criminal Procedure Code, it is Section 437 and not Section 167 which is the corresponding provision for this purpose. The corresponding limitation on grant of bail in case of non-bailable offences under Section 437 is as follows:- “(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” In other words, under Section 437 Cr. P. C., the person is not to be released on bail “if there appear reasonable grounds for believing that he has been guilty of an offence ...” While according to Section 37 of the Act, the accused shall not be released on bail unless “the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence”. The requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent, and, therefore, more beneficial to the accused than the requirement of reasonable grounds for the belief that he is not guilty of the offence under Section 37 of the Act. Under Section 437 Cr. P. C., the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is guilty 7 while under Section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the Act it is the accused who has to show that there are reasonable grounds for believing that he is not guilty. The Court further observed that the limitation on the power to release on bail in Section 437 Cr. P. C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the Act is in the nature of a condition precedent for the exercise of the power so that the accused shall not be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437 Cr. P. C. it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 of the Act, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This is the distinction between the two provisions which makes Section 37 of the Act more stringent. These limitations in sub-section(1) of Section 37 of the Act are in addition to the limitations under Section 437 of Cr. P. C. and were enacted only for this purpose; they do not have the effect of excluding the applicability of the proviso to sub-section(2) of Section 167 Cr. P. C. which 8 operates in a different field relating to the total period of custody of the accused permissible during investigation(emphasis supplied). 11. As to the expression “reasonable grounds” for believing that the accused is not guilty, the Apex Court in Customs, New Delhi v. Ahmadalieva Nodira(2004 AIR SCW 1640) observed that “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. The same view has been reiterated in Union of India v. Shiv Shankar Kesari(2007 AIR SCW 5945) by stating that satisfaction of Court that there are reasonable grounds to believe that accused is not guilty and that he is not likely to commit offence while on bail is essential for granting bail. 12. At present, it is well settled that whether it is for the purpose of sentence or for that matter even for the purpose of granting bail it is the quantity of the actual drug or psychotropic substance found with an accused that would matter and not the weight of such quantity of drug or other psychotropic substance when mixed with other neutral substances. In this context, reference could be made to the case of E. Micheal Raj v. Intelligence Officer, NCB(2008 CRI. L. J. 2250). In this case, the Apex Court referred to the statement 9 of Objects and Reasons of the Amending Act of 2001 which reads as follows:- “Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences”(emphasis supplied). 10 13. Thereafter, the Apex Court observed that as a consequence of the said Amending Act, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2 which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term 'small quantity' is defined in Section 2, clause (xxiiia) as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending material is 'small quantity', 'commercial quantity' or something in-between. The Apex Court noted that it appeared from the statement of Objects and Reasons that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, observed the Apex Court that they found it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the Act because the intention of the legislature as it appeared to them was to levy punishment based on the content of the offending drug in the mixture and not in 11 the weight of the mixture. This could be tested by supposing if 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment, as it appeared to them was to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment. After referring to the case of Ouseph alias Thankachan v. State of Kerala((2004) 4 SCC 446), the Apex Court concluded that they were of the view that when any narcotic drug or psychotropic substance was found mixed with one or more neutral substance/s for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. 14. Could one ever conceive that an accused will be punished for small quantity but denied bail on the allegation that the quantity found was commercial? Based on the above decision of the Apex Court it must also be stated that what is true in the case of sentence to be imposed should also be true while considering a 12 bail application. However, the fact remains that the investigating agency, in this case did not ask for quantitative test to be done of the psychotropic substance found in possession of the accused and as can be seen from the impugned Order such a request has now been made and the results are awaited. It is not the case of the accused that the accused would be entitled to bail by default of non compliance with the provisions of Section 36-A(4) of the Act, for, the investigations were completed within the period of 90 days, the charge-sheet was filed and the cognizance of the offence was taken soon thereafter. However, the contention is that the accused is not prepared to wait for the lapse of the Investigating Officer in not seeking the quantitative analysis of the psychotropic substance seized with the accused. In my view, there is no other option for the accused but to await the result of the quantitative analysis. If the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence then it is in the interest of the accused to insist that quantitative analysis of the drug or substance is done. If the prosecution could ask the Court for getting the quantitative analysis done after the filing of the charge- sheet there is no reason why the accused too could not have got the same done from the Court. For the present and until quantitative analysis results are obtained one can certainly presume that the weight of the substance is the weight which has been found by the investigating agency, and, only because no quantitative analysis was done by the Investigating Officer, the accused cannot be given any benefit of the same, since it is in his interest and otherwise was always open to him to insist that such quantitative results are obtained in case the accused desires 13 to show the existence of reasonable grounds for the belief that he is not guilty of the offence for which he is charged but would be guilty for a lesser offence for which he would be entitled to bail. Although, fairness would demand that the Investigating Agency while sending the seized substance seeks opinion from the expert both as regards quantity and quality, the accused is not remediless. Since the burden is on him to show that he is not guilty, it is open to him to ask the Court and get the quantitative test done. If prosecution could get it done later, after filing of the charge-sheet, I don't see any reason, nor any restriction is pointed out as to why the accused could not get it done, in like manner. The conclusion of the learned trial Court that he should await the result of quantitative test before he could hold that the accused was found with LSD which is below commercial quantity, cannot be faulted. 15. As regards non compliance of Section 50 of the Act the learned trial Court has come to the conclusion that the controversy could be considered only at the time of deciding the matter on merits. There is no doubt that Section 50 of the Act requires an option to be given to an accused that in case he so requires he can be searched by a Gazetted Officer or a Magistrate, and, as far as this provision is concerned it is held to be mandatory in case of personal searches. The contention raised on behalf of the accused is that there is nothing in the panchanama to say that the Investigating Officer had introduced himself as a Police Officer and it is only thereafter that the question of giving an option would have arisen. The panchanama clearly mentions that “P. I. Ashish Shirodkar offered Hendrik 14 Rudolph Ribbius to search the raiding party members including panch witnesses. However, he declined the offer”. “P.I. Ashish Shirodkar informed him that he received specific and reliable information that he is dealing with psychotropic substances and for that purpose his search will be taken by him”. “Before commencing his personal search P.I. Ashish Shirodkar told him that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate but he declined the offer”. The complaint prepared on the same day, though a few hours later, also shows that the I.O. had introduced himself as a Police Inspector of A.N.C. Police Station, Panaji, Goa. A conjoint reading of panchanama and the complaint prima facie shows that the provisions of Section 50 of the Act were complied with, but I must hasten to add that this is a matter pertaining to the appreciation of evidence. Prima facie, the panchanama shows that Section 50 of the Act has been complied with. 16. This Court in Lawarance D'Souza v. State of Maharashtra(1992 CRI. L. J. 399) has held that non compliance with procedural requirements can be looked into even at the stage of bail. However the Apex Court in Superintendent, Narcotics Contral Bureau, Chennai v. R. Paulsamy((2000) 9 SCC 549) has stated that no bail could be granted on the ground that there was prima facie violation of Sections 52 and 57 of the Act. Compliance of Sections 52 and 57 is a matter which could be established only at the trial and could not be pre-judged at the stage of consideration for bail. The Apex Court also observed that the minimum which the trial Court should have taken into account was the factual 15 presumption in law that official acts have been regularly performed and such presumption can be rebutted only during evidence and not merely saying that no documents have been produced before the Court during bail stage regarding the compliance with the formalities mentioned in those two Sections. The Apex Court also observed that the trial Court had not even recorded a finding in terms of Section 37 of the Act which is sine qua non for granting bail to an accused involved in an offence under the Act. However, in Sarjia Banu alias Janarthani alias Janami and another v. State through Inspector of Police((2004) 12 SCC 266), the Apex Court has stated that Section 42 of the Act being of mandatory character, non compliance of it is a relevant fact to be taken into account whilst considering the bail application. 17. As regards the discrepancy in parts of four sheets of paper found with the accused, the same in my view, cannot benefit the accused at this stage to support a case that the discrepancy shows manipulation with the seized article. The panchanama clearly shows that the weighing, packing and sealing was done by P.I. Shirodkar on the spot. There is no difference as to the weight of the four sheets of paper on which LSD was stored. The Senior Scientific Officer has confirmed that the sealed cloth