IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7638/2018 Between:
1. Sri Narayana @ Narayanappa. M S/o. Late Muniyappa Aged about 55 years 2. Sri Venkataswamappa S/o. Late Muniyappa Aged about 53 years Both are R/at Kamasandra Village Bidarahalli Hobli & Post Bengaluru East Taluk Bengaluru – 560 049. ...Petitioners (By Sri T.Subramanya & Associates, Advocate) And:
The State By Excise Department K.R. Puram Sub Division State Vigilance Squad Bengaluru.
S.P.P, High Court of Karnataka Bengaluru – 560 001. ...Respondent (By Smt. Namitha Mahesh B.G. HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioners on bail in the event of their arrest in Crime No.4/2018-19-90IE2- 900304 of Excise Department State Vigilance Squad, Bangalore for the offence punishable under Section 8(c) 20(a) 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 petitioners - accused Nos.1 and 2 under Section 438 of Cr.P.C. praying this Court to release them on anticipatory bail in the event of their arrest in Crime No.4/2018-19/90IE2/900304 of K.R. Puram Sub Division, Excise Department, State Vigilance Squad.
2. I have heard the learned High Court Government Pleader for the respondent-State. Learned counsel for the petitioners is not present.
3. The gist of the complaint is that on 29.08.2018, the complainant has received credible information that in Sy.No.6/4 and 6/6 at Kamasandra Village, petitioners - accused Nos.1 and 2 have grown ganja plants in between Mango trees, guava trees and rose plants. Along with panch witnesses and staff members, he went to the spot and there he noticed 16 ganja plants in between the said trees. They uprooted the said plants and they weighed about 170 kgs and after taking 3 Kgs for sample, a mahazar was drawn and a case has been registered.
4. It is contended by the petitioners in the petition that petitioner No.2 is brother of petitioner No.1 and they are married and living separately in different addresses. They were in no way connected to the ganja plants which have been grown in the said land. No documents have been produced to show that the said land stands in the physical possession of the accused – petitioners. Section 42 of the Act has not been followed while seizing. When the said ganja plants weighed, it has not been separated from flower, buds and seeds and that itself is illegal and the offence is not punishable with death or imprisonment of life and after the flowers, buds and seeds are separated it will be less than commercial quantity. On these grounds, he prays to allow the petition.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that 16 ganja plants were found in the land of the petitioners – accused. Petitioners – accused have grown illegally the said ganja plants without there being any license. She further submitted that the petitioners are in physical possession of the said land. They have not come up with any explanation and the ganja which has been seized is more than the commercial quantity. As such, the petitioners are not entitled to be released on bail. On these grounds, she prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned High Court Government Pleader and perused the record.
7. A close reading of the complaint reveals that on credible information, they went to search the said land and in between the Mango, Guava and rose plants they found 16 ganja plants. It is surprising to note that it was weighing 170 kgs. Be that as it may, whenever the seizure of ganja is going to take place, as per the definition clause that the flowers, seeds and buds are to be separated and then thereafter, only ganja has to be weighed and sample has to be taken in this behalf. In stead of doing so, entire ganja plants have been weighed and that itself clearly goes to show that procedure has not been followed and if flowers, buds and seeds are separated, it will be less than the commercial quantity. Under the said circumstances, I feel that by imposing some stringent condition, the accused – petitioners are ordered to be released on anticipatory bail.
8. In the light of the discussion, the above petition is allowed and the petitioners/accused Nos.1 and 2 are ordered to be released on anticipatory bail in the event of their arrest in Crime No.4/2018-19-90IE2- 900304 of Excise Department State, Vigilance Squad, Bangalore for the offences punishable under Sections 8 (C), 20(a) of NDPA Act subject to the following conditions:
1. The accused/petitioners shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) each with two sureties for the likesum to the satisfaction of the Investigating Officer.
2. They shall surrender before the Investigating Officer within 15 days from today.
3. They shall not tamper with the prosecution evidence directly or indirectly or in any manner.
4. They shall not indulge in similar type of criminal activities.
5. They shall not leave the jurisdiction of the Court without prior permission.
6. They shall mark their attendance once in fifteen days before the jurisdictional police between 10.00 a.m. and 5.00 p.m till the trial is concluded.
Sd/- JUDGE nms