IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.5680 OF 2019 BETWEEN :
PUTTA VENKATESHWARULU S/O LATE PUTTA SEETHAIAH 52 YEARS R/O.12-13-1085/49 STREET NO.11, LANE NO.4 NEAR AP DIARY, TARNAKA SECUNDERABAD HYDERABAD–500 007 (NOW IN JUDICIAL CUSTODY) ... PETITIONER (BY SHRI. K.S. VISHWANATHA, ADVOCATE) AND :
UNION OF INDIA NARCOTICS CONTROL BUREAU BANGALORE ZONAL UNIT BANGALORE–560 063 (REPRESENTED BY SPECIAL PUBLIC PROSECUTOR) BENGALURU–560 001 ... RESPONDENT (BY SHRI. MADHUKAR DESHPANDE, CGC) . . . .
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, NARCOTICS CONTROL BUREAU BENGALURU, FOR OFFENCE PUNISHABLE UNDER SECTION 8(c) R/W. 22, 23, 28 AND 29 OF NDPS ACT, WHICH IS PENDING ON THE FILE OF THE HON’BLE SPECIAL JUDGE FOR NDPS, BENGALURU.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.11.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-
ORDER This petition under Section 439 of Cr.P.C. is filed by accused No.3, alleged of offences punishable under Sections 8(c), 8A read with Section 22, 23, 25, 27A, 27B, 29 and 32B(a) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), seeking bail in NCB File No.48/1/6/2019/BZU of Narcotic Control Bureau, Bengaluru Zonal Unit, Bengaluru.
2. Heard Shri. K.S.Vishwanatha, learned Advocate for petitioner and Shri.Madhukar Deshpande learned Advocate for Narcotics Control Bureau.
3. Prosecution’s case is, as per source information received by NCB, one Shivaraj Urs, was expected to cross ‘golden arrow fitness club’ near ‘Coffey Mane’, Rajarajeshwari Nagar in his black coloured ‘Toyota Corolla’ Car bearing registration No.KA-03 MD-7250, on 30th April 2019 carrying huge quantity of ‘Ketamine’ to deliver near Maurya Hotel, Ananda Rao Circle, Bengaluru. At around 19.15 hours, the car crossed the point of surveillance and the NCB team followed it. The driver of the car handed over a luggage bag to a person waiting near Maurya Hotel and escaped from the scene. The person who received the bag was apprehended and identified as J.Kannan.
4. On the following day, NCB officials found the car in Yelahanka. They issued a notice under Section 50 of NDPS Act to Shivaraj Urs, conducted a search and took possession of incriminating documents under a panchanama.
5. NCB officials also searched the garage in Shivarj’s house and seized 25.45 kgs of ‘Ketamine’.
6. During the course of enquiry, Shivaraj disclosed that he had learnt the process of manufacturing ‘Ketamine’ from petitioner. This information was forwarded to NCB Office at Hyderabad.
7. A team of NCB Officers searched the petitioner’s premises on 2nd May 2019 and seized 16 bags of white crystalline substance in all weighing 477 kgs.
8. Petitioner was arrested by NCB Officers in Hyderabad and brought to Bengaluru and produced before the Special Court in Bengaluru on 7th May 2019. He was given to NCB’s custody for investigation. On 10th May 2019 petitioner was remanded to judicial custody. Since then, he has remained in judicial custody.
9. Shri.Vishwanath, learned Advocate for petitioner submitted that after investigation, NCB has filed charge-sheet before the Special Court against four accused of which accused No.4 has not yet been arrested. He further submitted that only two specific allegations have been made against petitioner in paragraphs No.98 and 100 in the charge sheet. The first allegation is that Shivaraj in his voluntary statement has disclosed that he was trained in manufacturing ‘Ketamine’ by the petitioner. The second allegation is that 477 kgs. of ‘Ketamine’ was seized from M/s. Inchem Laboratories premises in which petitioner is a Director.
10. Shri.Vishwanath urged that so far as the first allegation is concerned, there is absolutely no material placed by the NCB to substantiate the said allegation. Further, the said allegation is based on a statement given by a co-accused.
11. He further contended that so far as seizure of 477 kgs of Ketamine is concerned, in paragraph No.69 of the charge sheet, it is clearly mentioned that as per the report of the Central Revenue Controlled Laboratory, New Delhi, the Chemical analysis has shown ‘negative’ result for the presence of ‘Ketamine’.
12. He further submitted that this Court by order dated 12th November 2019 in Criminal Petition No.6059/2019 has granted bail to accused No.1. Therefore, detention of petitioner is wholly unwarranted. Accordingly, he prayed for granting bail.
13. Shri. Deshpande, opposing the petition submitted that though the Report prepared by Central Revenue Controlled Laboratory has not shown positive result for the presence of ‘Ketamine’, NCB is seeking a second opinion. He urged that the seized material in question is a chemical, which is one stage prior to the final product namely ‘Ketamine’.
14. Shri.Deshpande, also urged that petitioner is an accused in Special Case No.214/2009 registered by the DRI in Hyderabad.
15. I have carefully considered rival contentions and perused the records.
16. The main ground urged on behalf of petitioner is that the seized material is not ‘Ketamine’. The second allegation that Shivaraj was trained by petitioner is based on statement of co-accused. No other allegation is made by the prosecution against petitioner.
17. Admittedly, as per the charge sheet, 17 samples were sent to Central Revenue Controlled Laboratory. The chemical analysis report has shown negative result for presence of ‘Ketamine’. Thus, as on date, the seized material cannot be described as ‘Ketamine’.
18. Section 37 of NDPS Act places an embargo from releasing a person accused of offences punishable for Section 19 or 24 or 27A of the NDPS Act, unless the Public Prosecutor has been given an opportunity to oppose the application and Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
19. In the case on hand, as per report of Central Revenue Laboratory, seized material is not ‘Ketamine’. The other allegation of training accused No.2 is based on the voluntary statement of co-accused. Though a statement made before any Officer referred under Section 42 of the NDPS Act can be used by the prosecution against an accused, it is relevant to note that the allegation is with regard to training a co-accused in manufacturing drug. No other material is placed by the Prosecution to corroborate the statement of Shivaraj.
Admittedly prosecution has already filed charge sheet and petitioner is in custody since 10th May 2019.
20. In view of facts recorded above, this petition merits consideration. Hence, the following order:
(a) Petition is allowed.
(b) Petitioner shall be released on bail in NCB F. No.48/1/6/2019/BZU before Narcotics Control Bureau, Bengaluru, upon his executing a personal bond for Rs.5,00,000/- (Rupees Five Lakhs only) and two sureties for the like-sum to the satisfaction of the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Act, Bengaluru.
(c) Petitioner shall not tamper with the evidence while on bail;
(d) Petitioner shall not directly or indirectly make any inducement, threat or promise to prosecution witnesses or any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court or Investigating Officer;
(e) Petitioner shall not involve himself in any criminal activities; and (f) If the petitioner violates any one of the conditions, the prosecution shall be at liberty to seek cancellation of bail.
SPS Sd/- JUDGE