Karnataka High Court
Gomangi Vinod Kumar vs The State Of Karnataka on 16 June, 2023
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 101101 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 101101 OF 2023 (439-)
BETWEEN:
1. GOMANGI VINOD KUMAR S/O. GOMANGIAPPAROA,
AGED ABOUT 24 YEARS, OCC: STUDENT,
R/O: GOMANGI POST, LINGETI,
PEDDABAYALU MANDAL, KUMAR VIDHI,
PADERU TALUK, ALLURI SITRAMARAJU DISTRICT,
ANDRA PRADESH- 531040.
2. GOMANGI SHANKARAO S/O. LAXMINAIDU,
AGED ABOUT 25 YEARS, OCC: STUDENT,
R/O: GOMANGI POST, LINGETI,
PEDDABAYALU MANDAL, KUMAR VIDHI,
PADERU TALUK, ALLURI SITRAMARAJU DISTRICT
ANDRA PRADESH -531040.
CHANDRASHEKAR ...PETITIONERS
LAXMAN
KATTIMANI (BY SRI. PRAVEEN PRABHAKAR TARIKAR, ADVOCATE)
AND:
Digitally signed by
CHANDRASHEKAR
LAXMAN THE STATE OF KARNATAKA,
KATTIMANI
Date: 2023.07.05
THROUGH CEN POLICE STATION, HUBBALLI,
11:51:29 -0700 REP BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD,
DHARWAD-01.
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
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CRL.P No. 101101 of 2023
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF
CR.P.C. SEEKING TO ALLOW THE BAIL PETITION AND RELEASE
THE PETITIONERS/ACCUSED NO.1 AND 2 ON REGULAR BAIL IN
CRIME NO. 305/2022 FOR OFFENCE P/U/SEC. 20(b)(ii)(C) OF
NDPS ACT 1986, REGISTERED BY THE CEN POLICE STATION,
HUBBALLI-DHARWAD CITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Shri. Praveen P. Tarikar, learned c ounsel for the petitioners and Smt. Girija S. Hiremath, learned High Court Gover nment Pleader for respondent-State.
2. This petition is filed und er Secti on 439 Cr.P.C., with the following:
"WHEREFORE, the petitioners most humbly prays that this Hon'ble Court may be pleased to allow the bail petition and release the Petitioners/accused No.1 and 2 on regular bail in Crime No.305/2022 for offence punishable under Section 20(b)(ii)(C) of NDPS Act 1986, registered by the CEN Police Station, Hubballi-Dharwad city, in the interest of justice and equity."-3- CRL.P No. 101101 of 2023
3. Brief facts of the case are as under:
Polic e Sub-In spector, CEN Crime Police Station, Hubballi namely Annapurna R. M. received a credible information on 08.11.2022 stating that under the under-bridge of Gadag Railway road two persons are possessing ganja in a bag and are in the process of selling the same to the general public. Upon suc h information, h ead of the raid party formed a raid team comprising of hers elf, two independent pan cha witnesses, Ga zetted Offi cer and her sub s taff. All of them have proceeded to the place and a t about 2.30 p.m., they spotted the suspects near the under-
bridge of Gadag Railway road and raided on them and seized ganja weighing 20 kg 405 grams. They sei zed the ga nja after confirming that the petitioners had no license or permit to carry the same. Seizure has taken place in the presence of indep endent pancha witnesses and in the present of Ga zetted Officer a fter following requisite formalities and sample was taken. The petitioners along with the -4- CRL.P No. 101101 of 2023 sei zed ganja and other incrimi natory articl es were handed over to the CEN Police Station, Hubballi.
The Station Officer upon receipt of the report registered a cas e in Crime No.305/2022 on
08. 11.2022 for the offence punishable under Section 20 (b)(ii)(C) of the NDPS Act. The attempt made by the petitioners to obtain an order of bail is turned down by learned Special Jud ge. Therefore the petitioner s are before this Court.
4. Reiterating the grounds urged in the petitioner, Shri. Praveen P. Tarikar, learned cou nsel for petition er s vehemently conten ded that petitioner s are innocent of the offences alleged against them, and they have been falsely impli cated in this case and therefore sought for enlarging them on bail.
5. He also pointed out as the charge sheet is filed, continuation of the ac cus ed/petitioners in judicial custody is no lon ger warranted, therefore sou ght for enlar ging them on bail.
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5. Per contra, learned High Court Government Pleader opposed the bail grounds by c ontending that admittedly the petitioner s are from state of Andhara Pradesh a nd their presence in Hubballi is totally uncalled for and there is no proper explanation offered by them and the quantity of the NDPS seized in the incident is of commercial quan tity and therefore, petiti oners can not be termed as innocent persons in view of Section 35 of the NDPS Act. Therefore, sought for rejection of bail.
6. In view of the rival contentions of the parties, this Court perused the material on record meticulously.
7. On such perusal of the material on record, it is not in dis pute that the petitioners were found near the place of incident. The head of the raid party after receiving the credible information formed a raid team and condu cted raid and seized ganja to the tune of 20 kg 405 grams which is commercial -6- CRL.P No. 101101 of 2023 quantity as defined under Section 20 of the NDPS Act.
8. Admi ttedly, the petitioners are residence of state of And hara Pradesh and their presence in the place of inci dent is suspici ous. Why they were present in the place of incident and why they were possessing ganja to the tune of commercial quantity are all to be inquired into and adjudicated during the trial by learned Special Ju dge.
9. Having regard to the fact that the sei zed ganja is to the tune of 20 kg 405 grams, the p ower of this Court in granting th e bail is controlled by Section 37 of th e NDPS Act. Section 37 is culled out here un der;
"37. Offences to be cognizable and non- bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A -7- CRL.P No. 101101 of 2023 and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
10. Whenever commercial quantity of the NDPS is seized, wha t is the role to be played by the Courts while entertaining the bail app lication is no longer res-integra.
11. In this regard this Court places reliance on the judgments of Bab ua Ali as Tazmul Ho ssa in V s. State o f O ri ssa reported in (2001) 2 S CC 56 6 , Unio n of India Thr ough Narcoti cs Contr o l Bure au, Lucknow, Vs. M d. Nawaz Khan reported in (2 02 1)1 0 -8- CRL.P No. 101101 of 2023 SCC 100 and State o f Kerala and other s V s. Raje s h and Othe r s reported in (20 20) 1 2 SCC 122 . The relevant paragraph in the case of Babua (supra) is culled out here under :
"3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are -9- CRL.P No. 101101 of 2023 involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view."
The releva nt par agraphs in the case of Union of India (supra) and in the cas e of State of Kerala(supra) are culled out here under:
"17. The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:
"37. Offences to be cognizable and non- bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
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CRL.P No. 101101 of 2023
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
(emphasis supplied)
18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under:
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two
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persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) '24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions
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by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.'
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-
accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is
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CRL.P No. 101101 of 2023that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.
21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act."
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CRL.P No. 101101 of 2023
12. Applying the legal principles of law enun ciated in the aforesaid decisions to th e facts of this case, admittedly the h ead of the raid party did not possess any previous enmity or animosity as against the petitioners in view of the fact that petitioner s are the permanent residents of state of Andhara Pradesh. During the course of disc harging an official work, head of the raid party was able to sei ze 20 k g 405 grams ganja on the place of the incident.
13. On perusal of the material on record, at this stage it would definitely di sentitle the petitioner s from obtaining an order of grant of bail by resorting to the special power vested in this Court under the provisions of Section 439 of Cr.P.C read with Section 37 of the NDP S Act. The inn ocence or otherwise of petitioner s can only be decided after the full-fledg ed trial. Taking note of the fact that petitioner s are not local residen ts and they are from
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CRL.P No. 101101 of 2023state of Andhara Pradesh, the apprehension expressed by the prosecution is also well founded.
14. On cu mulative onsiderati on of the above aspects of the matter, this Court is of the considered opinion that there is no merit in any one of the ground urged in the petition.
15. Accordingly, the followi ng order is passed:
ORDE R The p etition is rejected.
Sd/-
JUDGE SMM List No.: 1 Sl No.: 8