IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9159/2018 BETWEEN:
Ajay Prakash, S/o Jaya Prakash, Aged about 26 years, No.48/489-D, Puvana Pilai, Elarnakara Ernakulam, Kerala – 682026.
Also at No.8/1, 1st Main, 10th Cross, S.J. Palya, D.R.C. Post, Bengaluru – 560 029.
(By Sri. Siji Malayil, Advocate) AND:
The State of Karnataka, by Suddaguntepalya Police Station, Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
(By Sri. M. Divakar Maddur, HCGP) ...Petitioner ... Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.331/2018 of Suddaguntepalya Police Station, Bengaluru, for the offences punishable under Sections 8(c), 21(c ), 20(B)(ii)(c) of NDPS Act.
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 petitioner/accused under Section 439 of Cr.P.C., seeking his release on bail in Crime No.331/2018 of Suddaguntepalya Police Station for the offences punishable under Sections 8(c), 21(c), 20(B)(ii)C of Narcotic Drugs and Psychotropic Substances Act, 1985.
2. I have heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that on 21.11.2018 at about 1.30 p.m., respondent-police have received a credible information that a person in front of the college gate is selling narcotic drugs and the police officials have secured panch witnesses and at about 4.15 pm., they went there and saw one person was trying to sell the narcotic drug by keeping them in a student bag. Immediately, they have surrounded and apprehended the accused and on personal search, they seized 14 grams of M.D.M.A. and 2 kilo and 100 grams of ganja by drawing a mahazar.
4. The main ground urged by the learned counsel for the petitioner is that the petitioner has not involved in the said case. The quantity of ganja which has been seized is less than the commercial quantity. The other quantity of the drug is 14 gram of M.D.M.A. The Investigating Officer have not followed the standing instructions 1/88 of the Narcotic Control Bureau which is mandatory and if the said test is not complied with, then the accused petitioner is entitled to be released on bail. In order to substantiate his argument, he relied upon the decision of the Hon’ble Apex Court in the case of UNION OF INDIA v. BAL MUKUND AND OTHERS reported in 2009 (12) SCC 161 and also the above decision has been referred in the case of BEN OKORO V. STATE OF KARNATAKA by Kothanur police station in Crime No.8644/2017 dated 18.01.2018. He further submitted that he is ready to abide by the conditions that may be imposed on him by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the quantity of seized M.D.M.A. is 14 grams, which is more than the commercial quantity. The petitioner was selling the said narcotic drugs, near the college and if the accused petitioner is enlarged on bail, he may again involve in similar type of activities. It is further submitted that still the investigation is in progress and if the accused petitioner is released on bail, he may abscond and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials which have been produced along with the petition.
7. On close reading of the contents of the complaint and the panchanama made available in this behalf indicates that when the police officials have seized the said articles from the student bag, they found 14 grams of M.D.M.A. drug and 2.100 grams of ganja. But either in the complaint or in the panchanama which has been drawn for seizing the said articles shows that they have not followed the instructions given in 1/18 of standing instructions of NCB. Even the records go to show that they have carried test kit. But the first test is also not complied. Subsequently, quantitative test is also not complied. Under the peculiar facts and circumstance, I am of the opinion that non-following of the instructions goes to the root of the case. To show whether the seized article is a MDMA, as held in the decision of Union of India v. Bal Mukund and others (quoted supra), if the said standing instructions 1/88 has not been followed, then the accused is entitled to be released on bail.
8. Keeping in view of the above said facts and circumstance, I feel that it is a fit case to release the petitioner/accused on bail. Hence, petition is allowed and the petitioner/accused is enlarged on bail in Crime No.331/2018 of Suddaguntepalya Police Station for the offences punishable under Sections 8(c), 21(c), 20(B)(ii)C of Narcotic Drugs and Psychotropic Substances Act, 1985 subject to the following conditions:
1. Petitioner/accused shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance once in a month i.e., 1st of every month between 10.00 a.m., and 5.00 p.m., before the jurisdictional police station, till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall not indulge in similar type of criminal activites.
Sd/- JUDGE VBS