IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL PETITION No.1132/2019 BETWEEN:
STEPHEN RAJ S/O MUTHU PRAKASH, AGED 27 YEARS, R/O ANJANAPPA GARDEN, NEAR BALEKAI MANDI, BINNYPET, MYSORE ROAD, BANGALORE-560 018.
(BY SRI K.S.VISHWANATHA, ADV.,) AND:
UNION OF INDIA, NARCOTICS CONTROL BUREAU, BANGALORE ZONAL UNIT, BANGALORE-560 063. (REPRESENTED BY LEARNED SPECIAL PUBLIC PROSECUTOR.
(BY SRI K.N.MOHAN, SPL.P.P) …PETITIONER …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB F.NO.48/1/03/2018/BZU, BANGALORE FOR THE OFFENCE PUNISHABLE UNDER SECTION 8(c) READ WITH SECTION 20(b) 28 OF NDPS ACT.
THIS CRIMINAL PETITION COMING FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard learned counsel for the petitioner and learned Special Public Prosecutor appearing for the respondent.
2. The brief facts of the case are that, on 22.02.2018, at 9.30 a.m., on receipt of a credible information that a person by name Stephen Raj i.e. the petitioner herein arrived at Mylasandra Gate bus-stop having narcotic drugs in his custody, particularly, a large quantity of Ganja, the respondent had been to the Mylasandra Gate bus-stop, found that particular person and intercepted him. It appears, 28.060 Kgs. of Ganja had been recovered from his possession under the mahazar.
3. Learned counsel for the petitioner submitted that there is no specification in the mahazar as to what is meant by Ganja and what are the contents to be in the said Ganja, whether it contained the flower or flower containing seeds, leaves and stems of Ganja plant. Simply it is stated that Ganja was seized, which was kept in a plastic bag.
4. Learned counsel for the respondent has drawn my attention to the samples which were taken from the alleged Ganja and they were exhibited as Exs.S1, S2 and S3 and were sent to Forensic Science Laboratory, Hyderabad for qualitative analysis. He has drawn my attention to Exs.S1 and S3 at Page No.42 of the charge- sheet papers, which is placed before the Court and it shows that the material sent contained dark green color vegetative material accompanied with seeds. They weighed 23.1038 grams in a polythene bag and 22.8171 grams containing dark green color vegetative material accompanied with seeds also. However, added to that, there is no quantitative analysis report available with the charge-sheet papers. At the time of hearing the arguments, the Court also questioned the learned counsel for the respondent as to whether there is any quantitative analysis report available. Learned counsel has not submitted the quantitative analysis report as such. Learned counsel also submitted that Section 37 of the Narcotic Drugs Psychotropic Substances Act, 1985 (‘NDPS Act’ for short) is applicable to the facts of the case. Hence, the petition deserves to be rejected.
5. In the above said facts and circumstances, a doubtful circumstance arises as to whether the Ganja which was alleged to have been seized contained any leaves, seeds, stem etc. of the Ganja plant or exclusively it is the tip of the Ganja plants, which were seized from the custody of the accused which can be specifically styled as Ganja. Therefore, when a doubt arises as to whether any commercial quantity was seized from the custody of the accused or not and particularly, when the accused is in custody since one and half years, under Section 439 of Cr.P.C., in my opinion, the petitioner is entitled to be enlarged on bail. When a serious doubt arises, Section 37 of NDPS Act will not come into play in order to reject the bail petition. Therefore, in my opinion, the petitioner is entitled to be released on bail by imposing conditions. Hence, the following:
ORDER The petition is allowed. Consequently, the petitioner shall be released on bail in connection with NCB F.No.48/1/ 03/2018/BZU, Bangalore, registered against him for the offences punishable under Section 8(c) read with 20(b)28 of the NDPS Act, subject to the following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioner shall not tamper with the prosecution witnesses.
iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.
iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against him is disposed of.
Sd/- JUDGE mv