IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.7036/2017 BETWEEN MRUTHANJAYA S/O RUDRAIAH JODIPURA VILLAGE MALUR TALUK KOLAR DISTRICT- 563130 (BY SRI G MURALIDHAR, ADV.) AND THE STATE OF KARNATAKA BY MALUR POLICE KOLAR DISTRICT - 563130 REP BY SPP (BY SRI.CHETAN DESAI, HCGP) ... PETITIONER ... RESPONDENT CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.276/2017 OF MALUR POLICE STATION, KOLAR, FOR THE OFFENCE P/U/S 20(B)(ii)(C) OF NDPS ACT, 1985.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Section 20(B)(ii)C) of NDPS Act registered in respondent – police station Crime No.276/2017.
2. Brief facts of the prosecution case as per the complaint averments is that the complainant received credible information that a person is carrying ganja for the purpose of selling it at Malur-Thornahalli Road. Immediately, the complainant went to the said place along with other staff and panch witnesses at 4.00 p.m. in the Government Jeep and reached the spot at 4.30 p.m. and after going to the said place, took the said person into their custody and they found that he was in possession of 1100 gms of ganja and so also Rs.900 cash. The same were seized in the presence of panch witnesses by drawing panchanama and thereafter came to the police station along with the petitioner and seized materials and lodged compliant. On the basis of the said complaint, case came to be registered for the said offence.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned High Court Government Pleader appearing for the respondent-State.
4. I have perused the grounds urged in the bail petition, FIR, complaint, so also the order of the learned Sessions Judge rejecting the bail application and other materials produced along with the petition.
5. On perusing the prosecution materials and even in the contents of the complaint, it is not mentioned by the complainant that immediately after receipt of credible information, he reduced the same into writing in the Station House Office diary and sent the information to his higher officials. Therefore, in the absence of such averments in the complaint or other materials, it prima-facie goes to show that there is no compliance of Section 42 of the NDPS Act. Apart from that looking to the prosecution materials, it goes to show that mandatory provisions of Section 50 of NDPS Act is also not complied with. There is no specific mention that before conducting personal search of the petitioner, the police informed the petitioner that he is having a legal right of his personal search to be conducted either before the gazetted officer or before the police. He is having option to exercise the choice. Therefore, in absence of such averments in the prosecution materials, it can be said that provisions of Section 50 of NDPS Act is also not complied with.
6. The contention of the learned HCGP that there are other cases pending against the petitioner about his antecedents, without the mandatory requirements of the provisions being complied with and the police only on the ground that the cases are pending, the petition cannot be rejected. Apart from that, the alleged ganja seized is little more than small quantity and it is less than commercial quantity. The petitioner contended that he is innocent and not involved in committing the alleged offence, he has been falsely implicated in the case and he has also undertaken to abide by any conditions to be imposed by this Court. Hence, I am of the opinion that by imposing reasonable conditions, petitioner can be enlarged on bail.
7. Accordingly, petition is allowed.
Petitioner/accused is ordered to be released on bail in connection with Crime No.276/2017 registered for the above said offences, subject to the following conditions:
i. Petitioner has to execute a personal bond for Rs.1,00,000/- and has to furnish one solvent surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner has to appear before the concerned Court regularly.
Sd/- JUDGE DM