IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION No.197/2019 BETWEEN:
Mr. Suresh.P S/o Puttappa, Aged about 47 years, R/at No.18, 5th Main, Maruthinagara, Bengaluru-560 079. …Petitioner (By Sri Girishkumar.S, Advocate) AND:
State by Kamakshipalya Police Bengaluru City, Rept. By State Public Prosecutor, High Court of Karnataka, 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 petitioner on bail in Crime No.440/2018 of Kamakshipalya Police Station, Bengaluru City for the offence punishable under Section 20(b), 22(c) and 20 of NDPS Act 1985.
This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER 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 Crime No.440/2018 of Kamakshipalya Police Station, Bengaluru for the offences punishable under Sections 20(b), 22(C) and 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short).
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 01.09.2018, the police has received a credible information that one Mohith and his father-petitioner-accused No.1 in their house were in possession and selling drug called contraband goods like ‘Hydro’ a superior quality of Ganja, LSD blotting paper and MDMA pills and they are selling and circulating through accused No.2 to the college students. The respondent-Police along with their staff and panchas went to the said place and there, they found petitioner-accused No.1 was selling the drugs to the customers and the police took him to the custody in front of the Gazette Officer and Assistant Police Commissioner of Women & Drug Squad and when the said officials searched in the house of accused, there they found 180 grams of superior quality Ganja called Hydro, 3 grams of 169 LSD Blotting paper, 66 grams of 168 MDMA pills, 210 grams of Hashish, one mobile phone and Rs.500/- cash, the same was seized by drawing Mahazar. On the basis of the same, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that the petitioner is innocent and he is nothing to do with the said crime. He further submitted that the alleged offences are not punishable with death or imprisonment for life. The quantity of contraband goods is not a commercial quantity and it is a medium quantity. He further submitted that already charge sheet has been filed and petitioner-accused No.1 is not required for the purpose of further investigation or interrogation. He further submitted that there is inconsistency in the seizure mahazar and the contents of the complaint. It has been stated that the said articles have been seized from the possession of the accused person but in the seizure mahazar, it has been stated that it was seized from the cupboard of the house. He further submitted that the investigating officer has not followed the provisions of Section 42 of the NDPS Act. If the mandatory provision is not complied and information which has been received is not mentioned in the Station House Diary immediately, then the benefit goes to the accused and petitioner- accused No.1. He is entitled to be released on bail. In order to substantiate the said contention, he relied upon the decision in the case of Javaregowda @ Manti Javarappa Vs. State of Karnataka SHO by Srirangapatna Rural Police Station in Crl.P.No.8832/2017 dated 23.11.2017.
He further submitted that the petitioner-accused No.1 is not having bad antecedent and no other cases are pending against him. He is ready to abide any of the terms and conditions that may be imposed by this Court and also ready to offer surety, if he is released on bail. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner-accused No.1 along with accused No.2 were dealing in drugs and circulating the said drugs among the college students. Petitioner-accused No.1 and accused No.2 are drug pedlars. The said contraband articles have seized from the possession of the petitioner-accused No.1 from his house. She further submitted that accused No.2 is absconding and as against him, there are bad antecedents and he is involved in two more cases. She further submitted that the Investigating Officer has complied the provision of Section 42(2) of the NDPS Act immediately after the information, he has registered the case in Station House Diary and thereafter within 72 hours, they sent a copy to the superiors. She also submitted that if the petitioner-accused No.1 is released on bail, he may abscond and he may not be available for the trail. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the contents of the complaint and other material, which indicate that immediately, after the receipt of the information, the same has been reduced into writing and thereafter the same has been forwarded to superiors and having conscious of the fact that whenever any credible information has been received by the police, then the said information ought to have been reduced in the Station House Diary. If it is not done, then there is non-compliance of the provision of Section 42 and the following said procedure is mandatory. If it is not followed or complied, the benefit will go to the accused. But, in the instant case, no such situation has been brought to the notice of this Court. It is entered in the Station House Diary and even the information has also been sent to the official superior. The decision quoted supra is not going to help the petitioner-accused in this manner. As could be seen from the records the quantity of the contraband goods which has been seized by drawing mahazar, is not the commercial quantity. It is less quantity which has been seized which will not attract the provision of Section 37 of the NDPS Act. Even though, during the course of the arguments, it is submitted by the learned HCGP that accused No.2 is absconding and there are bad antecedent and two more cases have been registered against him. The said articles have been seized from the house where both accused Nos.1 and 2 are residing but as could be seen from the records, there are no bad antecedents against the petitioner-accused No.1 and no other cases have been registered against him.
8. Under this facts and circumstance, I feel that if the petitioner-accused No.1 is released on bail by imposing some stringent conditions, then it is going to meet the ends of justice.
9. In that light, the petition is allowed and petitioner-accused No.1 is ordered to be released on bail in Crime No.440/2018 of Kamakshipalya Police Station, Bengaluru for the offences punishable under Sections 20(b), 22(C) and 20 of the NDPS Act subject to 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 tamper with the prosecution of the evidence directly or indirectly.
3. He shall not leave the jurisdiction of the Court without prior permission.
4. He shall mark his attendance on the first date of every month between 10:00 a.m to 5:00 p.m before the jurisdictional police till the trial is concluded.
5. He shall not indulge in similar type of criminal activities.
Sd/- JUDGE HA/-