IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE P.B. BAJANTHRI CRIMINAL PETITION NO.6059 OF 2019 Between:
J. KANNAN, AGED 34 YEARS, S/O JAYAKUMAR, RESIDING AT JOHANDRA, PILLIAIYAR LOIL STREET, OLD WASERMENPET, CHENNAI – 600 021. …PETITIONER (BY SRI. KARUMBAIAH T.A., ADVOCATE) And:
THE UNION OF INDIA, NARCOTICS CONTROL BUREAU, BENGALURU ZONE UNIT, BY INTELLIGENCE OFFICER – 560 009, REP. BY SPP, HIGH COURT BUILDING, BENGALURU – 560 001. ...RESPONDENT (BY SRI. MADHUKAR M. DESHPANDE, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB.F.NO.48/1/6/2019/BZU REGISTERED BY N.C.B., BENGALURU FOR THE OFFENCE P/U/S 8 R/W 22, 28, 29 AND 32 b(a) OF N.D.P.S. ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner is seeking enlargement on bail under Section 439 of Cr.P.C. and he is accused No.1 in the case No.NCB F.No.48/2019/BZU for the offence punishable under Section 8 r/w Sections 22, 28, 29 and 32B(a) of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred to as ‘the NDPS Act, 1985’ for short). NCB officials while intercepting a Toyota Corrolla Car baring registration No.KA-03-MD-7250, which was stated to have been driven by one Shivaraj Urs from Rajarajeshwari Nagar, when the vehicle was near Ananda Rao Circle, Majestic, at that time, scuffling took among Shivaraj Urs, Virendra Singh and members of the NCB Team. At that juncture, red trolley bag containing Ketamine drugs was taken away by the petitioner and he could not flee. Thus he was apprehended and recovered 26.75 kgs of Ketamine. In other words, petitioner was acting as a carrier for the seized Ketamine material, which was transporting in collusion of accused Nos.2 and 3. Thus, petitioner has presented this petition seeking enlargement on bail. It is submitted that charge-sheet has been filed on 25.09.2019. It is also contended that petitioner is not involved in any other offences.
2. Per contra, learned counsel for the respondent vehemently opposed the grant of bail to the petitioner on the score that Section 37 of the Act, 1985 provides for consideration of bail application only on two counts namely, for offences involving commercial quantity shall be released on bail or on his own bond unless - the Public Prosecutor has been given an opportunity to oppose the application for such release and further reasonable grounds for believing that accused is not guilty of such offence and he is not likely to commit any offence while on bail.
3. Learned counsel for the respondent further submitted that having regard to the voluntary statement under Section 67 of the Act, 1985 by the petitioner before the NCB Authority to the extent that carrying the aforesaid Ketamine material was illegally in possession of petitioner, which suffice to believe that petitioner is prima- facie guilty of such offence and further contended that petitioner is likely to commit further offence while he is on bail.
4. Heard the learned counsel for the parties.
5. Crux of the matter in the present case is whether the petitioner is entitled to be enlarged on bail or not?
Section 37 of the NDPS Act reads as under:
[37. Offences to be cognizable and non- bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 – (a) every offence punishable under this Act shall be cognizable;
(b) No person accused of an offence punishable for (offence under Section 19 or Section 24 or 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 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.]”
6. Undisputed facts are that petitioner is arraigned as accused No.1 when the NCB Team intercepted the Corrolla Car and when it was stopped at the particular place, the petitioner is alleged to have taken away the trolley from one Virendra Singh, which was containing 26.75 kgs of Ketamine material. Petitioner was apprehended by the NCB Team and in his voluntary statement, he has stated the facts in what way the material was taken away. No doubt, such material was carried illegally without therebeing any documents. That apart, petitioner is not involved in any other offences. Even though Clause 2(b) (i) of Section 37 of the Act, 1985 specifies that he is guilty of such offence and that he is not likely to commit any offence while on bail.
7. Learned counsel for the respondent has not apprised for what purpose petitioner’s custody is required to be continued. Moreover, charge-sheet has been filed on 25.09.2019. Respondent counsel is of the view that if petitioner is enlarged on bail, he is likely to flee away from the country and accused No.4, who is alleged to be stationing in Australia is yet to be arrested. Flee from the country by the petitioner could be prevented by making necessary application to the passport Authority by the respondent in impounding the passport of the petitioner. That apart, petitioner is not involved in any other offences and prima-facie he seems to be middleman-carrier. Since charge-sheet has been filed on 25.09.2019 and respondent has not made out a case as to what purpose the petitioner shall be continued in the custody, except that the petitioner admitted the alleged incident in his voluntary statement before the NCB.
8. Recently the Supreme Court in the case of State of Punjab Vs. Ankush Kumar @ Sonu in SLP (Criminal) Diary No.42609/2018 dated 07.01.2019 has affirmed the order of the High Court of Punjab and Haryana at Chandigarh in the case of Ankush Kumar @ Sonu Vs. State of Punjab reported in 2018 SCC Online P&H 1259, wherein Punjab and Haryana High Court has considered various provisions of the Act, 1985, Article 21 of the Constitution read with various Supreme Court’s decisions, wherein petitioner therein was enlarged on bail with reference to Section 37 of NDPS Act read with Section 439 Cr.P.C. during trial on furnishing bail bonds/sureties to the satisfaction of the trial Court.
9. Accordingly, the petition is allowed. Petitioner (accused No.1) shall be released on bail on his furnishing surety/bail bond to the satisfaction of the trial Court in connection with NCB F No.48/2019/BZU, on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru registered against him, for the offence under sections 8 r/w Sections 22, 28, 29 and 32B (a) of NDPS Act, 1985.
MBM Sd/- JUDGE