IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9427 OF 2018 BETWEEN:
Ahmed Ali Mohammed Hasan S/o Ahmed Ali Mohammed, Aged about 30 years, R/at No.32, 2nd Floor, Sampige Road, Subbayanapalya, M.S.Nagar, Bengaluru – 560 063.
(By Sri.Syed Aqdus, Advocate for Sri Chandrahasa Rai B., Advocate) AND:
The State of Karnataka By I.O., DRI, BZU, HRB Layout, Kalyanagar Post, Banaswadi, Bengaluru – 560 043.
Represented by Special PublicProsecutor, NDPS, High Court Building, Bengaluru – 560 001.
(By Sri.Jeevan J.Neeralgi, Standing Counsel) … Petitioner ...Respondent This Criminal Petition is filed under Section 439 of Cr.PC praying to enlarge the petitioner on bail in case No.DRI/BZU/S-IV/ENQ-39/INT-NIL-2018 dated 16.11.18 registered by I.O., DRI, BZU, HRB Layout, Kalyanagar Post, Banaswadi, Bengaluru – 560 043 for the offences P/U/S 8, 21C, 29 of NDPS ACT, presently pending on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge, NDPS, Bengaluru.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the accused petitioner under Section 439 of Cr.PC praying to release him on bail in case No.DRI/BZU/S-IV/ENQ-39/INT- NIL/2018 dated 16.11.2018 for the offence punishable under Sections 8, 21(C) and 29 of NDPS Act, 1985.
2. I have heard learned counsel for petitioner and learned Standing Counsel Sri Jeevan J. Neeralgi for respondent-State.
3. The brief facts of the case is that, the complainant who is the Directorate of Revenue Intelligence, Head Quarters, New Delhi has received a credible information to the effect that the speed consignments are arrived from Ethiopia and it was addressed to Karnataka, Mysore District containing Khatt leaves, a psychotropic substance covered under NDPS Act 1985. The DRI Bengaluru has requested to detain the five consignments. The said consignment was sent by one Zaid Mohammed Yusuf Addis Ababa Ehiopia to the petitioner and other accused Nos.2 to 5 which contained 31.83 kg of Khatt leaves and the consignment No.EG207662503ET containing 6.9 kg Khat leaves and it was addressed to Ahmed Alnhmi, the present accused petitioner. Thereafter, nobody approached the postal authority to collect the said articles. As such, the said articles were seized by drawing a mahazar and on the basis of the addresss on the postal cover, a case was registered. Thereafter, the petitioner accused was apprehended.
4. It is the submission of learned counsel for the petitioner that the petitioner is not residing in the address mentioned on the consignment and some other person was residing. Hence, there was no need for giving the said address by the accused petitioner to the consignment. He further submitted that no incriminating material has been seized from the possession of the accused petitioner. He has come to India with Study Visa and he has nothing to do with the said articles. He further by relying upon the notification of the Central Government dated 27.02.2018 submitted that the said Khatt leaves is less than the commercial quantity. As per the notification, the commercial quantity is 275 k.g. and small quantity is 5.50 k.g. and as such the accused petitioner is entitled to be released on bail. He further submitted that the address of the petitioner is, Ahmed Ali Mohammed Hassan, R/at No.32, 2nd floor, Sampige Road, Subbayanapalya, M.S. Nagar, Bengaluru – 560 063. But, in the complaint the address is mentioned as Ahmed Alnhmi, R/at No.595, 1st floor, Nagamma Road, Reddy Layout, Thomos Post, Kammanhalli, Bengaluru. His correct name is Ahmed Ali Mohammed Hassan and not Ahmed Alnhmi. Therefore, he is not the person who is residing in the given address. He further submitted 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. On these grounds he prays to allow the petition and to release the accused petitioner on bail.
5. Learned Standing Counsel by filing his detailed objection submitted that earlier, the accused petitioner was residing in the address given in the complaint and subsequently after coming to know the fact that the consignments have been seized by the Intelligence authorities, he has put some other person in the said place and he has been shifted. He further submits that he being the foreigner, if he is released on bail, he may not be available for the purpose of trial or investigation. Further, the qualitative and the quantitative test of the seized articles revealed that it is cathinone. There is a presumption under law that if any consignment which has been addressed to a particular person and if he resides in the said address or premises, apparently it belongs to the same person. Only because that the contraband article is noticed and case has been registered, the petitioner is disclaiming the same only with an intention to avoid the case of the prosecution. He further submits that the accused petitioner is having deep roots in the society and has involved in many cases. If he released on bail, he may again involve in similar type of activities. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and also perused the records.
7. As could be seen from the records, the said consignment which has been come from Ethiopia is addressed to one Sri Ahmed Alnhmi and the address which has been mentioned on the consignment is the address of the petitioner accused, where he was residing. Now, it is the contention of the accused petitioner that his name is Ahmed Ali Mohammed Hassan and not Ahmed Alnhmi. Whether it is the same person or not and whether the seized consignment belongs to the accused petitioner or some other person is the matter which has to be considered and appreciated only at the time of trial and not at this pre- matured stage. If anything is expressed on merits, it is going to effect the main case. If it is looked into, the only point that arises is that the quantity of the consignment article which has been seized was containing 6.9 k.g. of Khatt leaves. As per the notification dated 27.02.2018 of the Government of India which reads as under;
“S.O. 822 (E):- In exercise of the powers conferred by clauses (viia) and (xxiiia) of section 2 of the Narcotic drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby makes the following further amendments in the notification of the Government of India, Ministry of Finance, Department of Revenue, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii) vide number S.O. 1055 (E), dated the 19th October 2001, namely:-
In the said notification, in the Table after serial number 238 V and the entries relating thereto, the following serial numbers and entries shall be inserted, namely:-
Thus, as per the notification, in so far as Item No.1-238 ZG, the smaller quantity is 5,500 gms and the commercial quantity is 275 kg. The quantity of Khatt leaves which has been seized is 6.9 kgs, which is intermittent quantity and it is not a commercial quantity. Under the facts and circumstances, provisions of Section 37 of NDPS Act will not come in the way. Therefore, the petition is allowed and the petitioner-accused is ordered to be released on bail in Case No.DRI/BZU/S-IV/ENQ-39/INT-NIL/2018 dated 16.11.2018 registered by I.O., DRI, BZU, HRB Layout, Kalyanagar Post, Banaswadi, Bengaluru for the offence punishable under Sections 8, 21C and 29 of NDPS Act subject to following conditions;
1. The accused petitioner shall execute a local bond for a sum of Rs.5,00,000/-(Rupees Five Laksh Only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall give his permanent address and other records to show that the summons or notice is to be served on him with proper codes and identification.
3. He shall also give the correct name and correct details to the concerned Court.
4. He shall be regular in attending the trial.
5. He shall not leave the jurisdiction of the Court without prior permission.
PN/-
Sd/- JUDGE