IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7392 OF 2018 BETWEEN:
Sri. Yogesh Naik, S/o. Rekya Naik, Aged about 40 years, Agriculturist, R/at Sogilu village, Honnali Taluk, Davanagere District-577002. ...Petitioner (By Smt. Haleena Ameen, Advocate for Sri. S.Vishwajith Shetty, Advocate) AND:
State of Karnataka, By Excise Inspector, Davanagere Sub-Division, Davanagere, Represented by State Public Prosecutor, High Court Buildings, Bengaluru-560001. ...Respondent (By Sri. M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in Cr.No. 26/2018 of Excise Inspector, Davanagere Sub Division, Davanagere for the offences punishable under Sections 8(b) and 20(A) of N.D.P.S Act, 1985.
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 Excise P.S Crime No.26/2018 of Davanagere Sub-Division, Davanagere for the offences punishable under Sections 20 and 8(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for brevity).
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that on receiving a credible information, Excise Police along with his staff and panch witnesses went to the land on 23.08.2018 at about 3:30 p.m. and noticed that in Sy.No.270 of Sogilu village, which belongs to accused No.3 - Smt Saraswathamm, accused No.1 had grown ganja plants amidst of maize crop unauthorizedly, without any permit or license. The said 18 ganja plants were seized and weighed, panchanama was drawn and a case has been registered.
4. It is the submission of learned counsel for the petitioner that petitioner-accused No.1 is innocent and he has nothing to do with the said act. She further submitted that the said land belongs to one Smt. Saraswathamma-accused No.3 and she has already been released on bail. She further submitted that when the said 18 plants were seized and weighed, it included the root, bud and other articles and the same has been weighed about 40 kgs. The quantitative and qualitative tests have not been conducted in accordance with law. She further submitted that when the said ganja was seized, it was weighed and as such, the said ganja is less than the commercial quantity. The petitioner-accused No.1 is ready to abide by the conditions imposed on him by this Court and ready to offer sureties. On these grounds, she prayed to allow the petition and to release the petitioner-accused No.1 on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the petitioner-accused No.1 is involved in a serious offence of growing the ganja and even the said ganja has been seized from the said land. The petitioner-accused No.1 has voluntarily confessed that he himself has grown ganja plants in the said land. He further submitted that investigation is still in process and even the quantitative and qualitative test has also been obtained and the said ganja which has been sent for chemical examination has been affirmed by the FSL Report. He further submitted that the petitioner- accused No.1 is involved in a serious offence, if he is released on bail, he may abscond and 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 other materials, which has been produced along with the petition.
7. On close reading of the mahazar drawn on 23.08.2018, 18 ganja plants have been seized along with roots, bud and other things and were weighing about 40 kgs, that itself clearly goes to show that no quantitative test has been conducted in accordance with law. While seizing, buds, flowers, seeds etc., are to be separated. Whether the said ganja which has been seized is more than the commercial quantity, cannot be arrived at on the basis of the documents which have been produced. I am conscious of the fact that if the ganja is more than the commercial quantity then under Section 37 of NDPS Act, accused No.1-petitioner is not entitled to be released on bail. Under the peculiar facts and circumstances of the case, I feel that the petitioner- accused No.1 has made out a case to release him on bail.
In that light, petition is allowed. Petitioner- accused No.1 is enlarged on bail in Crime No.26/2018 of Davanagere Sub-Division, Davanagere for the offences punishable under Sections 20 and 8(b) of Narcotic Drugs and Psychotropic Substances Act, 1985, 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. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance on the first date of every month till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall not indulge in similar type of criminal activities.
Sd/- JUDGE RB