IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL PETITION NO.8433 OF 2018 BETWEEN:
1. Sudhakara, S/o Lomada Balaraja, Aged about 24 years, R/at Muddanuru Village, Jammalamadugu Taluk, Kadappa District, Andhra Pradesh State, Pin Code:516 380.
2. Munnaiah S/o Kallappa Aged about 26 years R/at Muddanuru Village Jammalamadugu Taluk Kadappa District, Andhra Pradesh State, Pin Code:516 380.
3. Baba @ Sheikh Baba Fakruddin S/o Mehaboob Basha Aged about 26 years R/at Muddanuru Village Jammalamadugu Taluk Kadappa District, Andhra Pradesh State, Pin Code:516 380. ...Petitioners (By Sri Raju C.N., Advocate) AND:
State of Karnataka by Channagiri Police Represented by Special Public Prosecutor, High Court of Karnataka, At Bengaluru – 560 001. ...Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioners on bail in Cr.No.422/2018 registered by Channagiri Police Station, Davanagere, for the offences punishable under Sections 8(c) and 20(b) of N.D.P.S. Act.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER Petitioners are accused Nos.1, 3 and 4 in Crime No.422/2018 of Channagiri Police Station. The said case is registered against the petitioners and the second accused for offences punishable under Sections 20(b) and 8(c) of NDPS Act, 1985, on the basis of complaint of Sri.Shivarudrappa S. Metti, PSI of Channagiri police station.
2. It is alleged that on the credible information of illegal trafficking of ganja, on 12.10.2018 at 9.00 a.m., the complainant and his team conducted search on the accused on the public road in front of the bus stand near Ajjihalli Circle of Channegiri Town. The accused were allegedly found possessing 28.5 kgs. of ganja.
3. The leaned Principal District and Sessions Judge and Special Judge(NDPS Act), Davanagere, granted bail to the second accused on the ground that he is a B.Sc., student facing examination and rejected the petitioners’ bail application.
4. The learned counsel for the petitioners relying upon the unreported orders of this Court in Mahesh.M., .vs. State of Karnataka (Crl.P.No.4888/2014 disposed of on 22.092014) and Prajildas.T.D., .vs. State of Karnataka (Crl.P.No.7054/2018 c/w Crl.P.No.7053/2018 disposed of on 14.12.2018) submits that while conducting the search Section 50 of the NDPS Act is not followed. He further submits that the incriminating material is already seized and accused No.2 is granted bail and therefore, the petitioners are also entitled for grant of bail.
5. Learned HCGP submits that since search conducted was not in any building or conveyance Section 50 does not apply. She further submits that the substance seized constitute the commercial quantity and petitioners have failed to cross the test of inference on innocence prescribed under Section 37 of the NDPS Act.
6. Accused No.2 is granted bail totally on a different consideration. Therefore, petitioners cannot claim parity with him. The search was conducted in public place on the person of the petitioners and not in any building, conveyance or enclosed area. Therefore, the arguments regarding compliance of Section 50 of the NDPS Act are unacceptable.
7. The case is still at the investigation. As per the records, the quantity seized was 28.5 Kgs. The source of ganja is yet to be ascertained. The offence has grave ramification on the health of the society.
8. The orders relied by the petitioners’ counsel were rendered on the facts of those particular cases. In Gajanand Agarwal .vs. State of Orissa and Others (2006) 12 Supreme Court Cases 131, the Hon’ble Supreme Court has held as follows:-
“20. Before parting with the appeals we would take note of the direction by the High Court that its order is not to be treated as a precedent. It is fairly well settled that orders of bail are not necessarily orders of any precedent value. Apart from that, the correcting of orders stating that they shall not be treated as a precedent has been dealt by this Court.”
(Emphasis Supplied) 9. Having regard to the aforesaid judgment, bail orders relied upon cannot be followed and they are not applicable to the facts of the present case. Under these circumstances, this is not a fit case to grant bail.
10. Therefore, petition is dismissed.
Sd/- JUDGE *alb/-.