IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION No. 9213/2018 BETWEEN:
Sri Mehaboob Pasha @ Mehaboob S/o Khallel, Aged about 27 years, R/at Beedi Colony, Kolar-563 130. …Petitioner (By Sri M.R.Nanjunda Gowda, Advocate) AND:
The State of Karnataka By Gulpet Police, Rep. by State Public Prosecutor, High Court Buildings, Bengaluru-560 001. …Respondent (By Sri K. P. Yoganna, HCGP) This Criminal Petition is filed under section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime.No.118/2018 of Gulpet Police Station, Kolar for the offence punishable under Section 20 (a) (b) of NDPS Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER The present petition has been filed by the petitioner- accused No.5 under Section 439 of Cr.P.C to release him on regular bail in Crime No.118/2018 of Gulpet Police Station, Kolar, for the offence punishable under Section 20(a)(b) of Narcotic Drugs & Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. The gist of the complaint is that the police received credible information on 06.10.2018 at about 1.45 a.m. about transporting ganja. Immediately the complainant went in a jeep along with his staff and at that time, a lorry reached the spot at about 6.30 p.m, they made an attempt to stop the said lorry but the driver of the said lorry did not stop and went towards R. G. Extension and stopped the vehicle. The driver and three other persons ran away from the spot but however, one person was caught hold of. The lorry and ganja were seized i.e., 96 packets of ganja in 10 bags and hence, the case has been registered.
4. It is the submission of the learned counsel for the petitioner that the name of the petitioner-accused No.5 is not found in the complaint and only on the basis of the voluntary statement given by accused No.2, he has been included as the accused. No recovery has been made at the instance of petitioner-accused No.5. He further submitted that though eight remand applications have been filed by the police, nothing has been recovered from the possession of the petitioner-accused No.5 and the said fact itself clearly goes to show that no serious allegation has been made in the complaint. He further submitted that the Investigating Officer has not complied the provision of Section 42 of NDPS Act. He further submitted that Section 42 of NDPS Act is mandatory and hence, the benefit has to go to petitioner-accused No.5. In order to substantiate his arguments, he relied on the decision of this Court in the case of Chandru Kunthur Raghuvegowda Vs. State by Inspector of Customs in Criminal Petition No.303/2017 disposed of on 28.04.2017. He further submitted that the petitioner-accused No.5 is ready to abide by any of the terms and conditions that may be imposed by this Court and also ready to offer surety. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.5 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the voluntary statement of accused No.2 clearly goes to show that it is the petitioner-accused No.5 who used to bring ganja from Andhra Pradesh along with other accused persons and he used to distribute according to his convenience. He further submitted that the ganja which is said to have been seized is more than the commercial quantity and that there is a bar under Section 37 of the NDPS Act, to release the petitioner-accused No.5 on bail.
He further submitted that the petitioner-accused is a habitual offender and if he is released on bail, he may involve in similar type of activities and he may abscond and he may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and submissions made by the learned counsel for the parties and perused the records.
7. As could be seen from the complaint, the name of the petitioner-accused No.5 is not found and subsequently, his name has been included only after the voluntary statement of accused No.2. Even on plain reading of voluntary statement of accused No.2, It is found that he used to drive the said lorry and two other persons used to load ganja and send the lorry. No recovery has been made from the possession of the petitioner-accused No.5, though in the initial stage accused No.1 was apprehended and when the said lorry was searched, they found 96 packets of ganja in ten bags, which is more than commercial quantity and hence, the said lorry was seized along with accused No.1.
8. Even as could be seen from the records, mandatory provision of Section 42 of the NDPS Act has not been followed. It is held by the Hon’ble Apex Court and by this Court in a catena of decisions that compliance of the provision of Section 42 of the NDPS Act is mandatory and if there is no compliance, then the benefit has to go to the accused. Moreover, the provision of Section 37 does not come in the way to release the petitioner-accused No.5 on bail. Even as could be seen from the materials placed on record, there is no specific overt act alleged against the petitioner-accused No.5 so as to make out a prima-facie case against the petitioner- accused No.5.
9. In the facts and circumstances, I feel that if the petitioner-accused No.5 is released on bail by imposing some stringent conditions then, it is going to meet the ends of justice.
10. In that light, the petition is allowed and petitioner-accused No.5 is ordered to be released on bail in Crime No. Crime No.118/2018 of Gulpet Police Station, Kolar, for the offence punishable under Section 20(a)(b) of NDPS Act, subject to following conditions:
1. The petitioner-accused No.5 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 Investigating Agency.
2. He shall not involve in any similar type of criminal activities.
3. He shall not tamper with the prosecution evidence directly or indirectly.
4. He shall not leave the jurisdiction of the concerned Court without prior permission of the Court.
5. He shall mark his attendance once in a month between 10.00a.m. and 5.00p.m. before the jurisdictional police till trial is concluded.
Sd/- JUDGE HA/-