IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.3341/2019 BETWEEN:
1. JAVED, S/O HUSSAIN, R/AT DOOR NO.5-54, NEHAREKERE HOUSE, KALLIAGE POST, BANTWAL TQ, D.K. – 575 012.
2. BEGRE SHANVAZ, AGED 33 YEARS, S/O U.N.ILLYAS, R/AT D.NO.2-11/16(5), SHABANA COTTAGE, HIDAYATH NAGAR, THOKKOTTU, PERMANNUR, MANGALORE – 575 008.
... PETITIONERS (BY SMT. HALEEMA AMIN, ADV., FOR SRI. K.ASHOK KUMAR SHETTY, ADV.) AND:
STATE OF KARNATAKA, BY POLICE SUB – INSPECTOR, E & N CRIME P.S., MANGALORE CITY. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU – 575 001.
(BY SRI. HONNAPPA, HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.27/2019 OF E AND N CRIME P.S., MANGALORE CITY FOR THE OFFENCE P/U/S 21(c), 21 OF NDPS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioners and learned High Court Government Pleader. Perused the records.
2. Petitioners are arraigned as accused Nos.1 and 2 in Crime No.27/2019 on the file of respondent – police for the offences punishable under Sections 21(c) and 21 of NDPS Act, 1985.
3. The brief facts of the case are that, on receipt of credible information, respondent – police had been to Lakshminagar Apartments and found accused No.1 on the spot with a two-wheeler. After securing panch witnesses, the police have searched the said two-wheeler as well as the said person and found M.D.M.A. powder in two plastic packets weighing 10 gms. worth Rs.30,000/- and another pocket weighing 14 gms. worth Rs.42,000/-, totally 24 gms of M.D.M.A. powder and cash of Rs.1,600/- and they registered a case and are investigating the matter. There is no allegation that accused No.2 was also present with accused No.1 at that particular point of time. There is no recovery as such from accused No.2.
4. Learned counsel for the petitioners submits that, though it is stated that a commercial quantity of M.D.M.A. powder has been seized from accused No.1, but the requirement of Standard Instructions of Central Government has not been followed in getting the FSL report within required time. Therefore, on that ground itself, the petitioners are entitled to be enlarged on bail. Learned counsel has relied upon a decision of this Court reported in LAWS (KAR) 2018 (1) page 134 between BEN OKORO Vs. STATE OF KARNATAKA. This Court relying upon a decision of the Apex Court in UNION OF INDIA Vs. BAL MUKUND AND OTHERS reported in 2009 (12) SCC 161 this Court has released the accused on bail though in that case also the narcotic drugs was found to be in possession of the accused exceeding the small quantity and falling under commercial quantity. It is observed by this Court at para 13 of the said Judgment as under “ ….Central Government framed standing instructions and as per Standing Instruction No.1/88, it lays down time limit for obtaining qualitative and quantitative report from the FSL and looking to the materials produced by the prosecution in this case, they have not produced the qualitative report within 15 days from the date of sending the narcotic drug to the FSL. They have also not produced the qualitative report within 30 days. Therefore there is no compliance of requirements of standing instructions.”
5. Therefore in this regard, this Court, relying upon the above said Supreme Court decision has come to the conclusion that strict compliance is not shown to the provisions and the directions which the Central Government has issued and therefore S.37 of the NDPS Act as well as Sections 42 and 50 of NDPS Act will not come in the way of exercising power under S.439 of Cr.P.C.
6. In this particular case also, learned HCGP did not bring it to the notice of the Court that any FSL Report has been secured though four months have already elapsed from the date of complaint and charge-sheet is not yet been filed.
7. Under the above said circumstances, as there is no previous bad antecedents reported so far as accused are concerned and as it is not the allegation of prosecution that accused are habitual offenders, petitioners are entitled to be released on bail with certain conditions. Hence, the following:
ORDER The petition is allowed.
Consequently, petitioner Nos.1 and 2 shall be released on bail in connection with Crime No.27/2019 of Mangaluru North Police station, registered for the offences under Sections 21(c) and 21 of NDPS Act, 1985, pending on the file of Prl. District and Sessions and Spl. Judge, D.K. Mangaluru, subject to the following conditions:
(i) Petitioners shall execute a personal bond for a sum of Rs.1,00,000/- each with two sureties for the likesum to the satisfaction of the jurisdictional Court;
(ii) Petitioners shall not indulge in hampering investigation or tampering prosecution witnesses;
(iii) Petitioners shall make themselves available to the I.O. as and when required for the purpose of further investigation interrogation if any;
(iv) Petitioners shall mark their attendance once in fifteen days on any Sunday between 10.00 a.m. and 5.00 p.m. before the I.O. / jurisdictional Court, till filing of charge-sheet or for the period of three months whichever is earlier.
sac* Sd/-
JUDGE