Karnataka High Court
Sri S Suresh vs State Of Karnataka By on 24 September, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.5449/2018
BETWEEN:
Sri S. Suresh
S/o Srinivas
Aged about 22 years
R/at No.6th Cross
Chandapura, Anekal Taluk
Bangalore Rural-560 099.
Native Place:
Pushpapura Village
Hanuru Hobli, Kollegal Taluk
Chamarajnagar District
Karnataka-571 440.
... Petitioner
(By Sri Nataraj D., Advocate)
AND:
State of Karnataka
By Koramangala Police Station
Rep. by Public Prosecutor HCGP,
High Court of Karnataka
Bangalore-01.
... Respondent
(By Sri M. Diwakar Maddur, HCGP)
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This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.28/2018 of Koramangala Police Station Bangalore for
the offences punishable under Sections 20(b), 21, 22 of
NDPS Act.
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 for the offences punishable under Sections 20(b), 21 and 22 of NDPS Act, 1985 in Crime No.28/2018 of Koramangala Police Station, Bangalore.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent/State.
3. The case of the prosecution in brief is that on 16.1.2018 on credible information the complainant searched a person on 80 feet road, 3rd cross, BBMP Play Ground, Koramangala in the presence of Superior Officers -3- and the panch witnesses and when they apprehended him on personal search they found 2 Kgs. of Ganja and 0.41 grams of LSD paper and a cash of Rs.1,100 and immediately he was apprehended and a panchanama was drawn and a case was registered.
4. It is the contention of the learned counsel for the petitioner that the Drug Law Enforcement Authority in its hand book has issued the procedure for recovery of the articles and the seized articles must be tested with the help of Field Drug Identification Test Kit and an indicative nature of the substance should be established from the color range and that should also be corroborated by questioning the owner/occupier/possessor to ensure that the substance recovered is a NDPS or CS and whatever the suspected substance is recovered, a small quantity of substance from each packet must be tested with the Field Test Kit. He further submitted that, if the procedure is not followed as contemplated under the law, then the benefit should be given to the accused. He further submitted that -4- the Narcotic Drug and the Narcotic Control Bureau has issued the standing instructions and as per Clause 1.18 of the standing instruction the Bureau should analyze the drug and complete the test within 15 days from the date of receipt of the sample and it further requires that the result of the quantity test should be sent to the Officer from whom the samples were received within the next 15 days. The compliance of the standing order is must. He further by relying upon the decision in the case of Union of India Vs. Bal Mukund and Others reported in (2009) 12 SCC 161 submitted that if the said instructions given by the Narcotic Control Bureau, is not followed, then under such circumstances it cannot be held that it can be NDPS and the accused is entitled to be released on bail. He further submitted that the said material though it is alleged that it is commercial, the prosecution has to establish that it is LSD. Until and unless the test report is produced, it cannot be held and called as more than commercial quantity. On -5- these grounds he prayed to allow the petition and to release the accused/petitioner on bail.
5. Per contra, the learned High Court Government Pleader by referring to the seizure of the said material further submitted that the said seizure has taken place in the presence of the Officer and it has complied with the provisions of Section 52 of the Act. He further submitted that the accused/petitioner was found in possession of more than commercial quantity of LSD papers and the said drug is going to be supplied in the society and as such a serious effect is there on the society. He further submitted that, if the accused/petitioner is enlarged on bail he may abscond and he may not be available for the trial. On these grounds he prayed to dismiss the petition.
6. Perusing the material placed on record though Ganja was alleged to have been seized by drawing a mahazar, the said quantity of Ganja which has been seized is only 2 Kgs., it is less than the commercial quantity. As -6- per the case of the prosecution the said Ganja has been seized on 16.1.2018 and there is delay of nearly more than nine months in getting the report from the FSL Authorities. As per the standing order Clause 1.18 of the Narcotic Control Bureau that the test has to be done within 15 days and the quantity has to be determined within 15 days thereafter.
7. It is the contention of the learned counsel for the petitioner by relying upon the standing instructions issued for the purpose of seizing the material for examination, it has not been followed, before this Court no such report has been produced except showing that the seizure has been done in accordance with law.
8. By going through the material that has been produced it clearly indicates that the said mandate as per clause 1.18 of the standing instructions issued by the Narcotic Control Bureau have not been followed as per the decision of the Hon'ble Apex Court in the case of Union -7- of India Vs. Bal Mukund and Others reported in (2009) 12 SCC 161. If the said instructions have not been followed and there is nothing to show that the said seized articles is a contraband articles and the quantity as per the same bag, then under such circumstances it cannot be held that the seized articles is contraband article.
9. Keeping in view the above said aspects, I am of the considered opinion that though it is alleged that the said seized LSD is of 0.41 grams, there is nothing to show that it is LSD which has been seized and no report has been furnished as per the guidelines. In that light I feel that the accused/petitioner has made out a case to release him on bail.
10. Accordingly, the petition is allowed and the accused/petitioner herein is ordered to be released on bail for the offences punishable under Sections 20(b), 21 and 22 of NDPS Act in Crime No.28/2018 of Koramangala Police Station subject to the following conditions. -8-
i) Petitioner 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.
ii) The petitioner shall produce the original documents given for the surety and the ID Card or the Aadhar Card to the Court below.
iii) He shall not tamper with the prosecution evidence in any manner till the disposal of the case.
iv) He should be regular in attending the Court.
v) He shall not leave the jurisdiction of the trial Court without prior permission of the Court till trial is concluded.
vi) He shall not indulge in similar type of criminal activities.
Sd/-
JUDGE *AP/-