Karnataka High Court
Sangi Reddy @ Tilak Sai vs Union Of India on 4 June, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:19139
CRL.P No. 2006 of 2024
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO.2006 OF 2024 (439)
BETWEEN:
SANGI REDDY @ TILAK SAI
S/O SANGIREDDY RAMAKRISH,
24 YEARS, NGR LAYOUT
BOMMANAHALLI NEAR
SILK BOARD, BTM LAKE LEFT SIDE AREA
BANGALORE - 560068
...PETITIONER
(BY SRI K.S. VISHWANATHA, ADVOCATE)
AND:
UNION OF INDIA
Digitally
NARCOTICS CONTROL BUREAU
signed by
SHILPA R
BANGALORE ZONAL UNIT
TENIHALLI THROUGH INTELLIGENCE OFFICER
Location:
HIGH 7/1 AND 2 PRIYANK VILLAS RAMANA
COURT OF
KARNATAKA GARDEN, KATTIGENAHALLI BAGLUR
MAIN ROAD, POST AIR FORCE STATION,
YELAHANKA BANGALORE 560063
REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR
...RESPONDENT
(BY SRI AJAY PRABHU M., ADVOCATE)
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO
ENLARGE HIM ON BAIL IN NCB CRIME NO.48/1/29/2023/BZU
OF NARCOTICS CONTROL BUREAU, BANGALORE ZONAL UNIT,
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NC: 2024:KHC:19139
CRL.P No. 2006 of 2024
BANGALORE, FOR OFFENCE P/US/ 8(c) R/W 20(b)(ii)(A), 22(c),
23(c), 27, 27A, 28 AND 29 OF NDPS ACT, WHICH IS PENDING
IN SPL.C.C.NO.17/2024, ON THE FILE OF HONBLE XXXIII
ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT
FOR NDPS, BANGALORE, ON SUCH TERMS AND CONDITIONS.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Accused No.1 in Special C.C.No.17/2024 pending on the file of learned XXXIII Additional City Civil and Sessions Judge and Special Court for NDPS, Bengaluru arising out of NCB Crime No.48/1/29/2023/BZU, registered by Narcotics Control Bureau, Bengaluru Zonal Unit, Bengaluru for the for the offences punishable under Sections 8(c) read with Sections 20(b)(ii)(A), 22(c), 23(c), 27, 27A, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), is before this Court under Section 439 of Cr.P.C. seeking regular bail.
2. Heard learned counsel for the petitioner and the learned counsel for the respondent, who has filed statement of objections.
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NC: 2024:KHC:19139 CRL.P No. 2006 of 2024
3. It is the case of the prosecution that on 23.06.2023 at about 6.30 hours, credible information was received by the Intelligence officer of Narcotic Control Bureau (NCB), Bengaluru that a parcel bearing register post shipment with tracking No.RH082913015GB is lying at Bannerghatta Post Office, Bengaluru-76 which was suspected to be containing narcotics drugs and psychotropic substance. On receiving such information, the Intelligence Officer took necessary directions from his higher officer and went to the post office along with his team and collected the aforesaid parcel from the Post Master and opened the same. The said parcel was addressed to the petitioner and it was sent from United Kingdom. Inside the parcel 96 yellow coloured pills were found which totally weighed 44.13 grams. In addition nine jelly type substance weighing 17.01 grams was also found. The aforesaid contraband articles were identified as MDMA pills and ganja gummies and were seized under mahazar and subsequently the sample drug was forwarded to the Forensic Science Laboratory (FSL) for chemical -4- NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 examination. On 24.06.2023 the Intelligence Officer delivered a dummy parcel to the petitioner herein when he arrived at the Bannerghatta Post Office for collecting the parcel which was addressed to him. Subsequently, his statement was recorded and a search was conducted by the police in the house of Vimal (accused No.2) and 141 grams of hashish oil was recovered. Therefore, aforesaid Vimal and Binod Prasad were summed by the NCB officers. All the three accused persons were arrested and produced before the court and remanded to judicial custody on 26.06.2023. The bail application filed by petitioner before the Trial Court was dismissed. Thereafter, the petitioner had approached this Court in Crl.P.No.7933/2023 and the said petition was dismissed as withdrawn on 27.09.2023 with liberty to approach this Court after the charge-sheet is filed. After filing of charge-sheet the petitioner had approached the Trial Court in Crl.Misc.No.796/2024 and the Trial Court had dismissed the said petition on 30.01.2024. Therefore, he is before this Court. -5-
NC: 2024:KHC:19139 CRL.P No. 2006 of 2024
4. Learned counsel for the petitioner submits that petitioner has been falsely implicated in the present case. He submits that the dummy parcel was delivered to the petitioner by Controlled Delivery Mechanism. There is no compliance of requirement of Section 50A of the NDPS Act. In the present case, the permission from the competent authority has not been obtained. He submits that the petitioner who is aged about 24 years is in custody from 26.06.2023 onwards. The investigation in the case is completed and charge-sheet has been filed. He has placed reliance on the order passed by this Court in Crl.P.No.6853/2023 connected with Crl.P.No.7039/2023 and Crl.P.No.7344/2023 disposed of on 12.09.2023 in support of his arguments.
5. Learned counsel appearing for the respondent has opposed the petition by filing statement of objections. He submits that the petitioner is a habitual offender, who has two criminal cases registered against him for the offences punishable under the NDPS Act. He submits that -6- NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 the contraband articles seized in the present case is of commercial quantity and in view of Section 37(1)(b) of the Act, petitioner's bail application is liable to be rejected. In support of his arguments, he has placed reliance on the decision of the Hon'ble Apex Court in the case of Narcotics Control Bureau vs. Mohit Aggarwal1.
6. Material on record would go to show that on receipt of credible information the officers attached to NCB had visited the post office at Bannerghatta and had collected the suspected parcel which was allegedly in the name of the petitioner and had opened the same on 23.06.2023. In the said parcel, they had found 44.13 grams of contraband articles allegedly MDMA pills and 17.01 grams of contraband articles allegedly ganja gummies.
7. It is not in dispute that the samples drugs were forwarded to the FSL for the purpose of chemical examination and a report is now received that the sample 1 AIR 2022 SC 3444 -7- NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 drugs have tested positive to MDMA and ganja. Therefore, the contraband articles seized in the present case is of commercial quantity. Material on record would go to show that on 24.06.2023 the officers of NCB had delivered a dummy parcel to the petitioner when he arrived at the post office in Bannerghatta by undertaking Controlled Delivery Mechanism. Therefore, compliance under Section 50A of the NDPS Act becomes mandatory.
8. Section 50A of the Narcotic Drugs And Psychotropic Substances Act, 1985 reads as follows :-
"50A. Power to undertake controlled
delivery.--
The Director General of Narcotics Control Bureau constituted under sub-section (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to--
(a) any destination in India;
(b) a foreign country, in consultation with the competent authority of such foreign country to which -8- NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 such consignment is destined, in such manner as may be prescribed."
9. In the present case, undisputedly the requirement of Section 50A of the NDPS Act has not been complied and no authorization as provided under the said provision of law was obtained.
10. In the case of Mr.Junaid Hussain Haveri and others vs. Union of India, Bengaluru disposed of on 12.09.2023, this Court in paragraph 23 has observed as follows :-
"Since the consignment/parcel was opened even before it was delivered to the addressee and the contraband article found in the consignment/parcel was seized under a parnchanama in the absence of accused, the only option open for the NCB offices to connect the accused to the crime was by identifying them through the technique known as "controller delivery".
However, since the NCB officers have not complied with mandatory requirements of section 50A of the NDPS Act before undertaking the exercise of "controlled delivery", the report of "controlled -9- NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 delivery" on which reliance has been placed by the prosecution cannot be considered since the exercise of "controlled delivery" gets vitiated for non- compliance of the mandatory requirement under section 50A of the NDPS Act."
11. In the case of Mohit Aggarwal (supra) the Hon'ble Supreme Court having taken into consideration the rigor under Section 37(1)(b) of NDPS Act has observed that if the court has reason to believe that the accused is guilty or if the court has reason to believe that accused would not commit similar offence in future bail can be granted.
12. In the case of Mohd. Mulsim Alias Hussain vs. State (NCT of Delhi)2 in paragraphs 20 and 21 the Hon'ble Supreme Court has observed as follows :-
"20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive 2 2023 SCC Online SC 352
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NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
21. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik"
13. The petitioner is a youngster, who is aged about 24 years and he is in judicial custody since 26.06.2023. Learned counsel for the respondent has brought to the
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NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 notice of this Court that the petitioner was involved in two other criminal cases registered under the provisions of NDPS Act and has produced the FIR of the said two criminal cases before this Court. The FIR in Crime No.495/2020 registered against the petitioner by Rajanagaram Police Station, Andrapradesh and in the said case petitioner has been arrayed as accused No.6 and the contraband articles seized in the said case is 216 grams of ganja which undisputedly is of small quantity. In Crime No.183/2021 registered by the V.Madhugula Police Station, Vishakhapatnam district, Andrapradesh the petitioner is arrayed as accused No.5 and in the said case the contraband article ganja seized totally weighed 3 kilograms which is an intermediate quantity. Undisputedly the petitioner is on bail in the said two cases.
14. In the present case which is registered in the month of June 2023 against the petitioner, he has been arrested after the dummy parcel was delivered to him by undertaking Controlled Delivery Mechanism by the officers
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NC: 2024:KHC:19139 CRL.P No. 2006 of 2024 of NCB. Undisputedly, the officers had no authorization as required under Section 50A of the NDPS Act for undertaking such a delivery and the same would go to the root of the matter. Under the circumstances, the rigor under Section 37(1)(b) of the NDPS Act cannot be strictly made applicable to the petitioner, who is in custody for the last nearly one year. Therefore, I am of the view that the petitioner's prayer for grant of regular bail is required to be answered affirmatively by imposing stringent conditions. Accordingly, the following :
ORDER The criminal petition is allowed.
The petitioner is directed to be enlarged on bail in NCB Crime No.48/1/29/2023/BZU of Narcotic Control Bureau, Bangalore Zonal Unit, Bangalore registered for the offences punishable under Sections 8(c) read with Sections 20(b)(ii)(A), 22(c), 23(c), 27, 27A, 28 and 29 of NDPS Act pending in Special C.C.No.17/2024 on the file of Hon'ble XXXIII Addl. City Civil and Sessions Judge and Special Court for NDPS, Bangalore, subject to the following conditions:
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NC: 2024:KHC:19139 CRL.P No. 2006 of 2024
a) Petitioner shall execute personal bond for a sum of `2,00,000/- with two sureties for the likesum, and out of the same one surety shall be local surety to the satisfaction of the jurisdictional Court;
b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;
c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;
d) The petitioner shall not involve in similar offences in future;
e) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off;
f) In the event the petitioner involves in similar cases in future, the respondent is at liberty to move for cancellation of this bail.
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JUDGE Srt/sn List No.: 19 Sl No.: 15