Karnataka High Court
State By Intelligence Officer Ncb vs Sannala Sri Durga Rakesh Kumar on 21 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:12058
CRL.P No. 10598 of 2022
C/W CRL.P No. 10752 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO. 10598 OF 2022
C/W
CRIMINAL PETITION NO. 10752 OF 2022
IN CRIMINAL PETITION NO. 10598 OF 2022:
BETWEEN:
1. STATE BY INTELLIGENCE OFFICER NCB
NARCOTICS CONTROL BUREAU
BENGALURU ZONAL UNIT
7/1 AND 2, PRIYANKA VILLAS,
RAMANA GARDEN, KATTIGENAHALLI
BAGLUR MAIN ROAD, YELAHANKA
BANGALORE - 63.
...PETITIONER
(BY SRI H.SHANTHI BHUSHAN, DSGI)
Digitally signed AND:
by SHARANYA T
Location: HIGH 1. SANNALA SRI DURGA RAKESH KUMAR
COURT OF
KARNATAKA AGED ABOUT 21 YEARS
S/O SANNALA GANTAYYA
R/O BLOCK-4 TF-6 JNNURM BUILDING,
NEAR GURUKULAM MANIKAVALASA,
MADHURAWADA,
VISHAKHAPATANAM RURAL,
KOMMADI VISHAKHAPATNAM
ANDHRA PRADESH-530048
...RESPONDENT
(VIDE ORDER DATED 18.11.2023,
NOTICE TO RESPONDENT IS HELD SUFFICIENT)
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NC: 2024:KHC:12058
CRL.P No. 10598 of 2022
C/W CRL.P No. 10752 of 2022
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
13.05.2022 PASSED BY THE XXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS)
BENGALURU (CCH-33) IN CRL. MISC.NO.3962/2022 IN NCB
CR.NO.48/01/22/2021/BZU OF NCB REMAND THE
RESPONDENT/ACCUSED TO JUDICIAL CUSTODY BY ALLOWING
THIS CRIMINAL PETITION AND DIRECT THE RESPONDENT TO
SURRENDER BEFORE THE HONBLE COURT OF XXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE ADN SPL.
JUDGE (NDPS) BENGALURU (CCH-33) IN
CRL.MISC.NO.3962/2022 IN NCB CR.NO.48/01/22/2021/BZU
OF NCB FOR THE OFFENCE P/U/S.8(c) R/W SECTIONS
22(a)(b)(c), 25, 27, 27-A,28 AND 29 OF NDPS ACT, 1985.
IN CRIMINAL PETITION NO. 10752 OF 2022:
BETWEEN:
1. STATE BY INTELLIGENCE OFFICER NCB
NARCOTICS CONTROL BUREAU
BANGALORE ZONAL UNIT
7/1 AND 2, PRIYANKA VILLAS,
RAMANA GARDEN, KATTIGENAHALLI
BAGLUR MAIN ROAD, YELAHANKA
BANGALORE - 63. ... PETITIONER
(BY SRI H.SHANTHI BHUSHAN, DSGI)
AND:
1. DOPA AVINASH
AGED ABOUT 21 YEARS
S/O DOPA NAGESHWARA RAO
R/O H.NO.503,
VASUNDARA RESIDENCY
PEEDA VEEDI S.KOTA
VIZAYANAGARAM
ANDHRA PRADESH-535 001
ALSO AT FLAT NO.503,
VASUNDRA RESIDENCY PRASANTHI COLONY
NEAR SIVALAYAM, PENDURTHI
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NC: 2024:KHC:12058
CRL.P No. 10598 of 2022
C/W CRL.P No. 10752 of 2022
VISAKHAPATNAM
ANDHRA PRADESH - 531173. ... RESPONDENT
(RESPONDENT IS SERVED BUT UNREPRESENTED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
06.06.2022 PASSED BY THE XXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS),
BENGALURU IN CRL.MISC.NO.896/2022 IN NCB
CR.NO.48/1/22/2021/BZU OF NCB REMAND THE
RESPONDENT/ACCUSED TO JUDICIAL CUSTODY BY ALLOWING
THIS CRIMINAL PETITION AND DIRECT THE RESPONDENT TO
SURRENDER BEFORE THE HONOURABLE COURT OF XXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE (NDPS), BENGALURU IN CRL.MISC.NO.896/2022 IN
NCB CR.NO.48/1/22/2021/BZU OF NCB FOR THE OFFENCE
P/U/S 8(c) R/W SECTIONS 22(a)(b)(c), 25, 27, 27A, 28 AND 29
OF NDPS ACT, 1985.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for petitioner in both the petitions.
2. These two criminal petitions are filed challenging the enlarging the respondent/accused No.5 and accused No.3 in NCB Crime No.48/01/22/2021/BZU registered for the offence punishable under Sections 8(c) -4- NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 R/w 22(a)(b)(c), 25, 27, 27A, 28 and 29 of NDPS Act 1985.
3. The factual matrix of the case is that 21 grams of MDMA alleged in the prosecution papers seized from the accused person, the same was sent for FSL and it is opined that it is amphetamine and caffeine. That the seizure was made on 21.10.2021 at about 18.10 hours based on the credible information and accused No.1 is proceeding along with other accused persons. On information and obtaining the permission from the superiors went along with panchas and apprehended the accused persons. On personal search, found 21 grams of MDMA, methamphetamine weighing 40 grams, methaqualone weighing 3 grams and mahazar was drawn and case was registered and investigation was completed and filed the final report. The accused persons who are the respondents herein i.e., accused Nos.3 and 5. The accused No.3 has filed bail application before the Trial Court in Spl.C.C.No.896/2022 and other accused No.5 has filed bail petition before the Trial Court in Crl.Misc.No.3962/2022 -5- NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 and the same judge vide different order dated 13.05.2022 enlarged the accused No.5 on bail in Crl.Misc.No.3962/2022 and enlarged the accused No.3 on bail vide order dated 06.06.2022 in Spl.C.C.No.896/2022. Hence, these two criminal petitions are filed before this Court.
4. The counsel for respective parties in both the criminal petitions that is in respect of accused No.5/respondent in Crl.P.No.10598/2022 and also accused No.3/respondent in Crl.P.No.10752/2022 are concerned, common grounds are urged contending that the accused in his voluntary statement under Section 67 of N.D.P.S Act has admitted the manner and factum of the recovery and confessed his drug trafficking. The contraband was recovered from a specially made cavity in the dash board, but the Trial Court has not applied its mind in granting bail has proceeded to pass order that no contraband was found in the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non-application of mind by the Trial Court. The -6- NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 counsel also contend that grant of bail to the respondent would led to destroying of any further evidences and also there is every chance of the respondents to influence or threaten the mahazar witness of this case. The counsel also would vehemently contend that offences invoked against the respondents under the N.D.P.S Act, 1985, punishment is not less than 10 years, the same extend up to 20 years of imprisonment, a fine of not less than one lakh rupees which may extend to two lakh rupees and also the Trial Court fails to take note of the gravity of the offences.
5. The counsel also contend that the Trial Court fails to take note of gravity of the offence and it is an offence against the society at large and did not press into the service of Section 37 of N.D.P.S Act that there are no reasonable grounds in the case to come to a conclusion that the petitioner is not guilty of an offence under N.D.P.S Act 1985 to get relief of enlargement of bail in as much as the seized contraband is of commercial quantity, there is a statutory embargo for grant of bail in terms of Section 37 -7- NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 of N.D.P.S Act. The Trial Court fails to take note of quantity of contraband was seized i.e., 21 grams of MDMA, methamphetamine weighing 40 grams, methaqualone weighing 3 grams was found, concealed in the vehicle, the same is also a commercial quantity and not discussed anything about the commercial quantity in respect of MDMA. Hence, prayed this Court to set-aside the bail granted in favour of accused Nos.3 and 5.
6. The counsel appearing for the petitioner also re- iterates the very same ground in the argument also contending that the Trial Court has passed the order without looking into the very proviso of Section 37 of NDPS Act and committed an error.
7. The respondent though served with the notice, unrepresented.
8. Having heard the counsel for the petitioner and also considering the material available on record, the case of NCB is that on 21.10.2021 at about 18.10 hours, based on the credible information that the accused No.1 cross Devanahalli toll gate, Bangalore from Bangalore city -8- NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 towards Hyderabad in a Red colour swift car bearing No.AP 37 DS 2191 along with other accused persons carrying multiple drugs of MDMA pills, methamphetamine, cocaine. After receiving the information he has obtained permission from the superior office and went along with panchas and his staff and apprehended the accused persons. It is found that 21 grams of MDMA, methamphetamine weighing 40 grams, methaqualone weighing 3 grams and incriminating substances were seized under detail mahazar. The accused persons were arrested and a detail report was submitted and case is also registered and investigation is also conducted and filed the final report.
9. The very contention of both the accused before the Trial Court that they have not committed any offence and they are innocents and procedure contemplated under N.D.P.S Act not followed and recovery is also not sustainable and investigation of case is completed and complaint has been submitted. It is also testified and opined by the expert that samples answered positive for amphetamine and caffeine, methamphetamine, -9- NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 methaqualone. The seized articles are not commercial quantity and are intermediate quantity. The 21 grams of MDMA alleged in the prosecution case was seized and when it was sent for FSL, it is opined that it is amphetamine and caffeine. The seized 40 grams of methamphetamine and 3 grams of cocaine are intermediate quantity of contraband. When the quantity seized is an intermediate quantity of contraband, Section 37 is not applicable. The prosecution rejected the bail application contending that seized articles i.e., 21 grams of MDMA pills, 40 grams of methamphetamine and methaqualone weighing 3 grams from the conscious possession of present petitioners. The seizure was also made before the independent witnesses. The petitioners were also arrested along with seized articles. The voluntary statement of accused under Section 67 of NDPS was also recorded. The seized articles are also from their conscious possession. The accused came along with accused Nos.1, 3 and 4 for purchasing multiple drugs and sample sent for chemical analysis, the same is also
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NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 positive. Hence, Section 37 of N.D.P.S Act attracts and hence, not entitled for bail.
10. The Trial Court while passing an order, in paragraph No.7 taken note of case of prosecution. In paragraph No.8 taken note of sending of seized articles to the FSL and also taken note of FSL report. The Trial Court comes to the conclusion that narcotic drug methamphetamine 50 grams is not commercial quantity and seized methamphetamine is 40 grams which is an intermediate quantity and an another drug amphetamine as per serial number 152, the commercial quantity is 50 grams and the same is intermediate quantity and in the present case, 21 grams is seized which is less than commercial quantity. Likewise the cocaine weighing 3 grams seized in this case is also intermediate quantity and the Trial Court enlarged the petitioners on bail with conditions.
11. The main contention of the counsel appearing for the petitioner is that the Trial Court committed an error
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NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 in granting the bail. Inspite of seized contraband 21 grams of MDMA, the said contention cannot be accepted and this Court has secured the FSL report and FSL report is very clear that though the same was seized as MDMA of 21 grams and FSL report is very clear that the same is not a MDMA and the same is amphetamine and the Trial Court rightly comes to the conclusion that the same is a intermediate quantity and in case of amphetamine, 50 grams is the commercial quantity and when such being the case and on perusal of FSL report, only portion of 21 grams of alleged MDMA was seized was sent to the FSL and the report is very clear that the same is not the manufacture drug of MDMA and when such being the case, when the FSL report is very clear that the same is a amphetamine and question of invoking Section 439(2) of Cr.P.C for cancellation of bail does not arise. Hence, I do not find any merit in the petitions to invoke Section 439(2) of Cr.P.C to comes to a other conclusion. The Trial Court rightly exercised its discretion having taken note of the
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NC: 2024:KHC:12058 CRL.P No. 10598 of 2022 C/W CRL.P No. 10752 of 2022 FSL report. The other seized articles are also not a commercial quantity. Hence, no merit in the petitions.
12. In view of the discussions made above, I pass the following:
ORDER The Criminal Petitions are dismissed.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 68