IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.1332/2019 BETWEEN:
Marwan Faisal Mohammad, S/o Mohammed, Aged about 27 years, Student, R/at House No.32, 2nd “A” Cross, Behind ASR Convention Hall, Vijaya Bank Colony Extension, Banaswadi, Horamavu, Kalyananagar, Bengaluru - 560 043. ...Petitioner (By Sri.Hashmath Pasha, Sr. Counsel for Sri.Ranjankumar .P, Advocate) AND:
Union of India, Narcotic Control Bureau, Bangalore Zonal Unit, Bengaluru. ... Respondent (By Sri.K.N.Mohan, Special PP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in N.C.B.No.F/48/1/1/19/BZU registered by Union of India/Narcotic Control Bureau, Bangalore Zonal Unit, Bengaluru, for the offences punishable under Section 8(c) read with 21 and 29 of N.D.P.S. Act and etc., 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 No.4 under Section 439 of Cr.P.C., seeking to release him on regular bail in Crime No.NCB.F.No.48/1/1/2019/BZU of Narcotics Control Bureau, Bangalore Zonal Unit, Bengaluru registered for the offences punishable under Sections 8(C) read with Sections 21 and 29 of NDPS Act.
2. I have heard the learned Senior Counsel Sri.Hashmath Pasha for the petitioner and the learned Special Public Prosecutor for respondent-State.
3. The gist of the complaint is that on 17.01.2019 at about 11.30 a.m., complainant received credible information that one Nigerian National by name Omoibe @ Iryan is traveling from Mumbai to Bengaluru in SRS Travels by carrying cocaine and she is likely to get down at Kalasipalyam Bus Stand, Bengaluru. The complainant registered a case and while the search team went to Nelamangala bus stand and got into the bus and by informing the conductor and driver they traveled up to Kalasipalyam bus stand and there they apprehended the said lady. On enquiry she told that she is carrying cocaine to one Victor and his two associates who are waiting near KFC of Kammanahalli, Bengaluru in a silver colour car. From there the complainant took her along with the search team where the silver colour car was located. There were 3 African men sitting in the said car. They apprehended them and all the 4 persons were taken to NCB office and they checked the packets containing the cocaine with accused No.1 and it was weighed and it was contained 400 grams of cocaine and a mahazar was drawn and accused/petitioners were apprehended and thereafter they even remanded to judicial custody.
4. It is the submission of the learned Senior Counsel for the accused/petitioner that when the lady was apprehended at Kalasipalyam bus stand and on enquiry she told that she is carrying cocaine. No seizer mahazar has been drawn and said cocaine has been seized. They further proceeded and only after apprehending accused Nos.2 to 4 they came back to the office and there the seizer proceedings have been taken place. The said method is not appreciable in this particular case. He further submits that the accused/petitioner along with the other accused persons were apprehended and nothing has been recovered from the possession of the accused/petitioner. He further submits that the accused/petitioner is not having any knowledge about the alleged offence and he has come to India in student visa for study purpose and he has been apprehended. It is his further submission that the cocaine has been seized from accused No.1 and no further articles have been seen or possessed by the accused/petitioner. He further submits that liberty of the present accused/petitioner cannot be curtailed only because of the reason that investigation is still pending. The alleged offence is not punishable with death or imprisonment for life. The accused/petitioner has come for study purpose and is residing in rented house and an agreement has been entered in this behalf and he is having permanent address and he is not likely to be abscond and flew away from justice. He further submits that he has applied for renewal of visa and same will be renewed and he will be continuing his study in the given address. The accused/petitioner is ready to abide by any conditions that may be imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition and to release the accused/petitioner on bail.
5. Per contra, learned Special Public Prosecutor Sri.K.N.Mohan has filed objections. By supporting his objections, he vehemently argued and submitted that the accused/petitioner along with the other accused persons have involved in a serious offence and trafficking of illicit cocaine and the statement recorded under Section 67 of the NDPS Act is admissible and therein it clearly goes to show that he has admitted fact that along with the accused No.1 they are dealing with the drugs peddling by getting it from Bombay. He further submits that accused/petitioner has conspired with other accused persons and dealing with the contraband goods. He further submits that address which has been furnished is a fake address and even in the given address he is not residing and even the complaint has been registered in this behalf. He further submits that the examination report clearly goes to show that the articles seized itself cocaine and it was intended to be given to the accused/petitioner and if the accused/petitioner is released on bail he may abscond and he may not be available for trial. He further submits that in many such cases the accused persons have not faced trial and it becomes very difficult for the Court to secure the presence of the accused/petitioner. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for both the parties and perused the records.
7. In the decision of the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v/s State of Maharashtra reported in 2011(1) SCC 694 that what are the parameters which the Court has to keep in mind for considering the bail application even elaborately discussed and decided. At the same time that therein it has been also stated as “Just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.” At the same time, court has to look into the fact that the accused must be available to the trial and he should not abscond and flew away from justice. Keeping in view the above said facts and circumstances, if on perusal of the records, the material which has been seized to the extent of 400 grams of cocaine is from accused No.1. No recovery has been made at the instance of the accused No.4 and the only material so which has been made as against the accused/petitioner under Section 67 of the NDPS Act, that he has confessed and therein that he has stated that he has conspired with other accused persons in wrongfully transporting contraband goods. This is the matter which has to be considered and appreciated only at the time of trial. No material has been seized and the accused/petitioner has involved or not in the offence is a matter which has to be considered and appreciated at the time of trial . The alleged offence is not punishable with death or imprisonment for life. The only apprehension of the learned Special Public Prosecutor that the accused/petitioner has fake address and he may flew away from justice. The said aspect is taken into care by the Court by imposing some stringent conditions.
8. In the light of the discussions held by me above, petition is allowed. Petitioner/accused No.4 is enlarged on bail in Crime No. NCB.F.No.48/1/1/2019/BZU of Narcotics Control Bureau, Bangalore Zonal Unit, Bengaluru registered for the offences punishable under Sections 8(C) read with Sections 21 and 29 of NDPS Act subject to the following conditions:
1. Petitioner/accused No.4 shall execute a personal bond for a sum of Rs.5,00,000/- (Rupees five lakhs only) with two local sureties for the likesum to the satisfaction of the trial Court.
2. He shall not leave the jurisdiction of the trial Court without prior permission.
3. He shall mark his attendance once in 15 days between 10.00 a.m., and 5.00 p.m., before the Banaswadi Police Station and Inspector of the Banaswadi Police Station is directed to intimate the NCB about his attendance till the charge sheet is filed.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall regularly appear before the trial Court for trial, without fail.
6. He shall not indulge in similar type of criminal activities. If he involves in similar type of criminal activities, then the trial Court is at liberty to cancel the bail.
7. He shall furnish permanent address.
8. He shall surrender his passport after he is released on bail and if passport is renewed from competent authorities before the trial Court.
Sd/- JUDGE NS