IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9668/2018 BETWEEN:
Ninesh @ Ninesh T.N S/o Nandakumar, Aged about 36 years, R/at No.17, 7th Cross, Eshwar Layout, L.B. Shashtrinagar, Indiranagar 2nd Stage, Bengaluru-560 038.
Permanent Address R/at Thotayirth House, Valappad Village, Chavakkad Taluk, Thrishur District, Kerala-680 568. ...Petitioner (By Sri.Mahadeva Swamy.P, Advocate) AND:
The State of Karnataka by Indiranagar Police Station, Bengaluru.
Rep. by State Public Prosecutor, High Court Complex, Bengaluru-560 001. ...Respondent (By Smt. Namitha Mahesh.B.G, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Cr.No.95/2018 of Indiranagar Police Station, Bengaluru for the offence P/U/S 20(B) and 20(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 No.1 under Section 439 of Cr.P.C to release him on bail in Crime No.95/2018 of Indiranagar Police Station, Bengaluru, for the offences punishable under Sections 20(B) and 20(C) of Narcotic Drugs & Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).
2. I have heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent-State.
3. Brief facts of the case are that the complainant received credible information on 06.04.2018 that some persons have involved in transporting ganja, they purchased the ganja and they have kept in the house at Eswari Layout in Indiranagar and thereafter they are selling to the different persons. The information is also received that the accused persons are transporting the ganja from Vishakapatna in a white swift car bearing No.KL46/L1543 and red Innova car bearing No.KL16B7674 on 07.04.2018 at about 3.00 a.m. When the said vehicles were stopped and the search was made, the Investing Officer found that 108 Kgs of ganja has been found in different quantities. The same was seized. Subsequently, when accused No.1 was interrogated he revealed that some more ganja has also been kept in the house and immediately the Investigating Officer along with panch witnesses went to Eswari Layout, Indiranagar and when they entered the house, they found two persons, who are the petitioners herein and when they were asked they told that they will be selling ganja for Rs.300/- per packet and when the search was made, they produced a black coloured plastic cover, which was containing 1 kg of ganja and after taking 100 gms for sample, the same was seized for drawing a mahazar. On the basis of the said seizure a case was registered by the respondent- police.
4. It is the submission of the learned counsel for the petitioner that the petitioner-accused No.1 has been falsely implicated in the case, the quantity of ganja has been seized from the possession of the petitioner- accused No.1. He further submitted that Clause 1.18 of the Standing Instructions issued by the Narcotic Control Bureau, New Delhi has not been followed. As per the Standing Instructions, the analysis of the drug is to be completed within 15 days from the date of receipt of the samples and quantitative test should be sent to the officer from whom the samples are received within next 15 days, but the said procedure has not been followed in this behalf. In order to substantiate the said contention, he relied upon the decision of the Hon'ble Supreme Court in the case of Union of India v. Bal Mukund and others reported in (2009)12 SCC 161. He further submitted that the remaining accused persons have already been released on bail. On the ground of parity, petitioner-accused No.1 is also entitled to be released on bail.
5. Per Contra, learned High Court Government Pleader vehemently argued and submitted that the accused persons were found in the possession of ganja more than the commercial quantity. The petitioner- accused No.1 is a habitual offender and totally 109 Kgs of ganja have been seized from the possession of the petitioner-accused No.1. He further submitted that the petitioner-accused No.1 has been involved in many more cases and if he is released on bail, he may abscond and he may not available for the trial. On these grounds she prayed to dismiss the petition.
6. I have carefully gone through the contents of the complaint and other materials which have been produced along with the petition and I have also gone through the order passed by this Court against other accused persons. I am conscious of the proposition of law that the liberty of the accused is precious so also maintenance of law and order. Both of them are equally important.
7. As could be seen from the contents of the records which indicates that when the Police Officer has seized the vehicle and verified wherein they found 108 Kgs of ganja. On careful perusal of seizure Mahazar which indicates about the quantity of ganja which was carried by each of the accused. Subsequently, as per the statement of petitioner-accused No.1 who took to the house in Eswari Layout of Indiranagar, the Investigating Officer found 1 Kg of ganja and the same was seized. But as could be seen from the records, the Standing Instructions issued by the Narcotic Drug Control at clause 1.18 has not been followed and no such reports have been produced in the case as contended by the learned counsel for the petitioner- accused No.1 in Balamukund case (supra). Fulfillment of the requirement of Standing Instructions is mandate of law which is not applied in the present case. Unless and until these two test reports are obtained and placed before the Court, it is very difficult for the Court to believe the fact with materials seized is the contraband as contemplated under the NDPS Act. Though the quantities of ganja seized is more than the commercial quantity, but in view of the above such facts and circumstances and statute that too when in the similar facts, other accused petitioners have been already released on bail, on the ground of parity, the petitioner-
accused No.1 is entitled to be released on bail. In that light, petition is allowed.
8. Petitioner/accused No.1 is enlarged on bail in Crime No.95/2018 of Indiranagar Police Station, Bengaluru, for the offences punishable under Sections 20(B) and 20(C) of NDPS Act, subject to the following conditions:
1. Petitioner/accused No.1 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. Each of the surety shall produce original Title Deed in pursuant to removable property and original Aadhar card for perusal of the Court.
3. He shall not leave the jurisdiction of the Court without prior permission.
4. He shall mark his attendance before the Investigating Officer on 15th day of every month during office hours till the trial is concluded.
5. He shall not involve in similar type of criminal activities.
6. He shall be regular in attending the trial as and when required.
Sd/- JUDGE HA/-