IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR JUSTICE K N PHANEENDRA CRIMINAL PETITION NO.7719 OF 2019 BETWEEN:
RAVICHANDRA KRISHNAPPA AGED ABOUT 34 YEARS SON OF KRISHNAPPA R/AT #121, 7TH MAIN 24TH A CROSS, BSK 2ND STAGE BANGALORE-560 070. … PETITIONER (BY SRI.GAUTAM SHREEDHAR BHARADWAJ, ADV.) AND:
STATE OF KARNATAKA THE STATION HOUSE OFFICER BANASHANKARI POLICE STATION REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR HIGH COURT BANGALORE-560 001. ... RESPONDENT (BY SRI.ROHITH B.J., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. TO PRAYING THAT PLEASED TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.190/2019 REGISTERED BY BANASHANKARI POLICE STATION, BENGALURU FOR THE OFFENCE P/U/S 22 (b) OF N.D.P.S. ACT AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard and perused the records.
2. Petitioner is the sole accused in Crime No.190/2019 of Banashankari Police Station for the offence under Section 22(b) of Narcotic Drugs & Psychotropic Substances Act, 1985.
3. Brief facts of the case on hand are that a Police Inspector, Central Crime Branch received a credible information that some persons are in possession of Narcotic Drugs. Immediately, they had been to 30th Main Road in 7th Block Banashankari III Stage and he enquired the said person who was there and he disclosed his name as Ravichandra in the presence of panch witnesses. He has seized some articles from him i.e., 13 gms of MDMA powder and 2.5 gms of 5 ecstasy tablets along with one mobile, one weighing machine.
4. Learned HCGP submitted that the weight of the said MDMA crossed the commercial quantity and commercial quantity declared by law is 10 gms but the petitioner possessed 13 gms. Therefore, Section 37 of the NDPS Act is a bar to grant bail to the petitioner.
5. Per contra, learned counsel for the petitioner submitted before this Court that qualitative and quantitative analysis has not been done so far as the recovery of articles are concerned and he is seriously disputing with regard to the quantity of the narcotic drug alleged to have been seized from the petitioner. No report is available both with regard to quantity and quality. Therefore, on that ground learned counsel submitted that petitioner is entitled to be enlarged on bail.
6. On perusal of the materials on record, it is seen from the panchanama etc. that at the time of seizure, the Assistant Commissioner of Police has provided opportunity to the accused whether he should be searched before the jurisdictional Magistrate or by himself as he was also a Gazetted Officer and after getting such opinion about their right, the accused person has accepted for his search by Assistant Commissioner of Police. Thereafter, the seizure was made and in the presence of the panch witness, after recovery the same was tested by means of an examination kit which was taken to the spot, tentatively they have come to the conclusion that the said property which was seized from the custody of the accused, was a narcotic drug.
7. Though at this stage, the report is not available but in the presence of the panch witness a tentative test has been made by the I.O. Therefore, under the above said facts and circumstances, in my opinion, it is too premature at this stage to draw any inference that it has not crossed the commercial quantity of possessing the narcotic drug. When once at preliminary stage, materials are available to show that accused possessed narcotic drug exceeding commercial quantity, then, in such eventuality Section 37 of the NDPS Act comes into play. Unless Court holds that at that stage accused was guilty of offence alleged against him, bail cannot be granted. Having regard to the facts and circumstances, I do not find that petitioner be enlarged on bail at this stage. However, petitioner is at liberty to move appropriate court after filing of the charge sheet.
With these observations, petition stands dismissed.
Sd/-
JUDGE Brn