IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.5060 OF 2018 BETWEEN:
Intelligence Officer, Narcotics Control Bureau, Bengaluru Zonal Unit, No.7/1-2, Priyank Villas, Ramanna Garden Baglur Main Road, Kattigenahalli, Yelahanka, Bengaluru-560 063.
(By Sri.K.N.Mohan, Special PP) ...Petitioner AND:
Shabeer Ahamed Haris Pasha S/o Harish Pasha Abdul Hameed, Aged about 31 years, R/at No.48/738 A, Kausalya Nagar, Near Reliance Super Market, Elamakkara, Ernakulam-682 026.
(By Sri.K.S.Vishwanath, HCGP) ... Respondent This Criminal Petition is filed under Section 439A of Code of Criminal Procedure praying to cancel the bail vide order dated 12.04.2018, granted to the respondent/accused, in Crl.Misc.No.2797/2018 in NCB.F.No.48/1/5/2018 passed by the Court of the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) at Bengaluru, for the offences punishable under Section 8 read with 20(B), 23, 28, and 29 of NDPS Act, 1985.
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 Narcotic Control Bureau under Section 439(2) of Cr.P.C, praying this Court to cancel the bail granted by XXXIII Additional City Civil and Sessions Judge and Special Judge for The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act” for short) Bengaluru, in Cr.Misc.No.2797/2018.
2. I have heard learned Special Public Prosecutor Sri.K.N.Mohan for petitioner and the learned counsel Sri.K.S.Vishwanath for respondent-accused.
3. It is the submission of learned counsel for the petitioner that the learned trial judge without considering the objections filed by the Narcotic Control Bureau, has passed the impugned order. He further submitted that the accused is charged under Section 20(b) of the Act. If he is charged under Section 20(b), the provision under Section 37 of the Act are also attracted and applicable. When Section 37 of the Act is made applicable, then under such circumstances, the Court has to pass a reasoned order as contemplated under Section 37 of the Act. In order to substantiate this argument, he relied upon the decision in the case of INTELLIGENCE OFFICER, NARCOTIC C.BUREAU Vs. SAMBHU SONKAR AND ANOTHER reported in 2001 CRI.L.J.1082(SC). He further submitted that the trial Court has come to a wrong conclusion without proper interpretation of the law. He further submitted that the accused-respondent was not in judicial custody for long time. He was only for eight days in a judicial custody. He further submitted that the contention which have been imposed for the purpose of appearance of the accused are also so lenient and no stringent conditions have been imposed. On these grounds, he prayed to allow the petition and cancel the bail.
4. Per contra, learned counsel Sri.K.S.Vishwanath learned counsel on behalf of respondent-accused vehemently argued and submitted that the ganja which is said to have been seized is only 4.75 kgs and it is an intermediate quantity of ganja and as such the restrictions which are there under Section 37 of the Act are not applicable. He further submitted that after the release of the accused, he is regularly attending the Court and he is also facing the trial and charges have already been framed and the accused- petitioner has not disobeyed the conditions imposed by the Court below and in order to cancel the bail, there must be breach of the conditions or violation of the conditions. No such allegations have been made in the petition filed by the Bureau. On these grounds, he prayed to dismiss the petition.
5. I have carefully and cautiously gone through the submission made by the counsel appearing for parties and perused the records.
6. Before considering the case on hand, I feel it is just and proper to come to Section 37 of the Act which reads as under:
“Offences to be cognizable and non-bailable-
1) Notwithstanding anything contained in the Code of Criminal Procedure, 173 (2 of 1974) (a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or section 24 of section 27A 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 such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (B) of sub-section(1) are in addition to the limitations under the code of Criminal Procedure, 1973(2 of 1974) or any other law for the time being in force, on granting of bail.
With reference to Section 37 of the Act, the Hon’ble Apex Court in the case of intelligence officer Narcotic Control Bureau quoted supra has observed that Section 37 of the Act is applicable in case where offence is punishable with terms of imprisonment of five years or more and where the offence is punishable under Section 20(b) (1) for opposing ganja, he cannot be excluded.
7. I am of the considered opinion that the said ratio is applicable. Taking into consideration the said aspect in view and going through Section 37 of Act that it states that public prosecutor has to be given an opportunity to oppose the application and if such application is opposed, the Court if it is satisfied, that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. Then under such circumstances, the bail can be granted. No such allegations have been made either to the effect that he is likely to abscond and that he is likely to involve in such offence. Even that there is no allegation in the present petition that after releasing him on bail, he is dealing with said aspect of bringing the ganja and possessing the ganja and selling the same. Looking from that angle the quantity of ganja which has been seized is also 4.75 kgs that is the intermediate quantity of ganja and it is not a commercial quantity of ganja.
8. If on close reading of Section 37 of the Act that it restricts the power of the Court to exercise only when the ganja or any other articles, if it is more than commercial quantity. In that light also, I feel that trial Court though not assigned detailed reasons, but the cryptic order does not suffer from any irregularity. Under such circumstances, that too when already when the accused is attending the trial and charge has been framed. I feel that it is not just and proper case to cancel the bail. But however, it is submitted during the course of arguments that the accused-petitioner has to furnish permanent address. The learned counsel for the petitioner submits that the address which has been mentioned in the charge sheet is a permanent address and he is residing in the similar address and mahazar is also drawn on the same premises. In such facts and circumstances, that he is also available in permanent residence.
In the light of the above discussion, petition is disposed of.
Sd/- JUDGE ag