Karnataka High Court
Soloman A S/O. Amul Raj. M vs The State Of Karnataka on 28 March, 2022
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.100088/2022
BETWEEN:
SOLOMAN A S/O. AMUL RAJ M
AGED ABOUT 22 YEARS,
OCC. STUDENT,
R/O. NEAR NAARINA FACTORY,
HARISHCHANDRA GHAT,
HIRIYAT, DIST. CHITRADURGA.
...PETITIONER.
(BY SHI G I GACHCHINAMATH, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
CHITTAVADAGI POLICE STATION,
HOSAPETE
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT.
(BY SMT. GIRIJA HIREMATH, HCGP.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, SEEKING TO
ENLARGE THE PETITIONER/ACCUSED NO.2 ON BAIL IN CRIME
NO.28/2021 OF CHITTAVADAGI POLICE STATION, HOSAPETE,
REGISTERED FOR ALLEGED OFFENCES PUNISHABLE SECTION
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22(C) OF NDPS ACT, 1985 AND UNDER SECTION 5(1), 5(4) OF
THE KARNATAKA EPIDEMIC DISEASES ACT, 2020 AND UNDER
SECTION 269 OF INDIAN PENAL CODE, 1860, PENDING ON THE
FILE OF PRL. DISTRICT AND SESSIONS JUDGE AND SPECIAL
JUDGE, BALLARI, IN SEPCIAL CASE NO.797/2021, ETC.,.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 10.3.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under section 439 of the Code of Criminal Procedure, 1973, seeking to enlarge the petitioner/accused, on regular bail, in Crime No.28/2021 of Chittawadagi Police Station, registered for the offences punishable under section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), Section 5(1), 5(4) of Karnataka Pandemic Diseases Act, 2020, Section 269 of the Indian Penal Code, 1860. The petitioner is arraigned as accused no.2 in the said case pending on the file of Prl. District and Sessions Judge and Special Judge, Ballari, in Special Case No.797/2021.
2. The brief case of the petitioner is that on 3.6.2021, the PSI of Chittawadagi Police Station was on patrolling duty along with his staff and checking the 3 vehicles during lockdown period. At that time he found a red colour car coming from Siddipriya Kalyan Mantap and two persons were sitting in it. On enquiry they did not give any proper reply. They revealed their name as one Raghunath and the other person is Soloman A. On enquiry they stated that they have come to sell LSD drugs during the lockdown period. They were taken to custody on 3.6.2021. Accordingly Crime No.28/2021 came to be registered. Thereafter investigation was completed and charge sheet was filed before the Prl. District and Sessions Judge and Special Judge, Ballari, in Special Case No.797/2021. The bail petition was rejected by the Special Judge. Hence the petitioner has presented this petition.
3. The learned HCGP has filed statement of objections stating that the LSD material were wrapped with silver colour paper. Totally about 570 stamps weighing 11 grams i.e., one stamp worth of Rs.1,000/- and the total amount is Rs.5,70,000/- worth. The cash of Rs.14,000/- is recovered from this petitioner and Rs.21,000/- from accused no.1. CW.6 and CW.7 are the eye witnesses to the 4 incident. This petitioner was holding the bag in which one folded silver sheet and inside that one full sheet stamp size LSD material were found. CWs.23, 25, 26, 27, 29 and CWs.15 and 17 are also official eye witnesses. The petitioner was caught red handed along with other person. The offence is punishable under section 22-C of the NDPS Act which is punishable with imprisonment not less than 10 years and maximum 20 years and fine of Rs.1,00,000/- which may extend to Rs.2,00,000/-. The other offence is also under Karnataka Pandemic Diseases Act, 2020, which attracts punishment not less than three months imprisonment and may extend to 5 years and fine. There is prima facie case against the petitioner that he is involved in serious offence. There is a possibility of petitioner absconding and he may tamper the trial if he is released on bail. Hence the learned HCGP prays to reject the petition.
4. Heard Shri G.I.Gachchinamath, the learned counsel for the petitioner and Smt.Girija S. Hiremath, the learned HCGP for the respondent State.
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5. The learned counsel for the petitioner argued that the petitioner is a student; he had come to Hosapete before lockdown to see his maternal grandmother who was suffering from ill health. The learned counsel further argued that at this stage there is no evidence or material to show involvement of accused no.2. The custody of accused no.2 is no more required as the charge sheet is filed. Without the FSL report, accused no.2 has been taken to custody. Hence, he prayed to allow the petition. In support of his contention the learned counsel relied on the following decisions.
i) Ben Okoro vs. State of Karnataka, in Crl.P.No.8644/2017, decided on 18.1.2018; ii) Vikram vs. the State of Karnataka, in Crl.P.No.200402/2020, decided on 23.7.2020 ; iii) Deepak Gulabrao Jadhav and others vs. the State of Karnataka, reported in MANU/KA/1800/2013; iv) A.V.Dharmasingh and others vs. the State of Katnataka, reported in MANU/KA/0091/1992. 6
6. Against this, the learned HCGP contended that the offence is heinous one and its wide impact would be on the society. If the petitioner is released on bail, it will be harmful to the society. The learned HCGP also stated that accused no.1 is a habitual offender involved in Crime No.46 and 52 of 2021 of Special Court NDPS Act at Patiala House Courts, New Delhi. This petitioner is found with him the properties seized from the car and possession of both accused. The petitioner may jump bail and abscond. With these contentions the learned HCGP prayed to dismiss the petition.
7. I have perused the petition averments. It is contended that the offence is under section 22(c) of the NDPS Act. The quantity of LSD material seized in this case is worth of Rs.5,70,000/-. Totally 570 stamp size sheets are seized. The money was also seized. It is evident that the quantity of drug seized is a commercial quantity. Therefore, section 37 of the NDPS Act is attracted. Section 37 of the NDPS Act reads as under:
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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 27A 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.
8. In view of this provision, the power to grant bail under any of the provision of Cr.P.C. should be necessarily subject to condition mentioned in section 37 of the NDPS Act and as evident from section 37(1)(b)(i) and
(ii) of the NDPS Act, there are specific limitation prescribed 8 under the said Act. The first is the public prosecutor should be given an opportunity to oppose the bail application and secondly, the Court must satisfy itself that there are reasonable grounds for believing that accused is not guilty of such offence and is not likely to commit any offence while on bail. Already in this case the public prosecutor has been notified and opportunity has been given. Now the Court has to examine whether there are reasonable grounds to believe that the accused is not guilty of such offences of this particular type. If there are prima facie material to establish the case against the accused, in such an eventuality the petitioner is not entitled to be enlarged on bail.
9. The learned counsel for the petitioner argued that the mandatory provisions of the NDPS Act are not complied in respect of search. As evident from the prosecution papers, this petitioner along with accused no.1 Raghunath Kumar were found on 3.6.2021 at 12.00 p.m. near Siddipriya Kalyan Mantap in a car. Though it was a lockdown period due to COVID-2019, the petitioner along 9 with accused no.1 were travelling. It is also evident that they did not give proper reply and only after enquiry they revealed that they are carrying LSD substance in a bag for selling to other persons. Therefore, CW.1 wrote a complaint and sent the complaint to the police station and thereafter the witnesses were secured and in the presence of witnesses and in the presence of Gazetted Officers CW.2 and 3, the accused nos.1 and 2 were enquired and from the accused the said property which was LSD was recovered and in the presence of CW.30 and CW.2 and 3 sample was taken and sent to FSL along with CW.20 and the remaining seized property was made inventory in the presence of Judicial Magistrate and the voluntary statement of accused was also recorded. The seizure was reported to Dy.S.P. of concerned police station. Then accused no.1 also led police and panchas to show the place from where he was purchasing LSD stamp and took them to Hiriyuru K.R.Halli cross and police have drawn the panchanama. The police have produced the panchanama wherein there is a Gazetted Officer's signature. They have also produced the photo, sketch map and also notice of 10 search issued to both the accused and the report was also received. Inventory panchanama was also produced before the Magistrate. The police have also produced panchanama dated 9.6.2021 drawn in the Chamber of Addl. Civil Judge and JMFC and also they have produced the certificate of inventory issued by the Magistrate. It is evident that there are statement of witnesses. Therefore, the contention of the petitioner in this regard is not at all tenable.
10. It is evident that with reference to search and seizure it is stated that it is the accused, on request of police without any force voluntarily produced the articles. On the other hand even a notice of search was also given to them. Therefore, when the articles were seized, from the bag given by the accused which was in the car that the question of searching the person of accused does not arise. Even then also the Investigating Officer has secured the presence of panchas. Therefore, section 50 and 52 of the NDPS Act in my considered opinion will not come into play as there is no personal search of the accused or petitioners. On the other hand, it is voluntarily the accused 11 producing the bag containing the said LSD contra band. The other argument relied by the learned counsel is by relying on a decision of this Court in the case of Ben Okoro vs. State of Karnataka, in Crl.P.No.8644/2017, decided on 18.1.2018, wherein this Court relying on a decision of the Supreme Court in Union of India vs. Bal Mukund and others reported in 2009 (12) SCC 161, refers to the guidelines of the circular No.1 of 1988. Of course this Circular No.1 of 1988 lays time limit report from FSL and looking to the material produced by the prosecution in this case, they have not produced the quantitative report from the date of sending the Narcotic Drugs to the FSL. No quantitative test report is received within 30 days. So there is no compliance of standing instruction. According to the NDPS Act it is the commercial quantity and exceeds 100 grams of LSD. So far as LSD is concerned, there is no dispute so far as this aspect is concerned and the sample has been taken in the presence of panchas and inventory done. The learned counsel argued that in view of this, it is infirmity in the investigation. But here in this case the articles actually 12 seized in the presence of panchas after detecting that they are contained LSD which are small square shaped stamp sized chits and admitted contra band. The panchas and witnesses who have signed the mahazar categorically noted that the seized articles are LSD. The magistrate has also signed the inventory and certified it. They have ascertained that these articles are LSD. They have sent it to FSL as per the record. The FSL authorities have given a date for collecting the sample which is still not due. But as the material placed before the Court clearly discloses that the said LSD stamps were seized from the possession of the accused prima facie shows the commercial quantity in the possession of petitioner. Therefore at this stage the petitioner is not entitled to take such contention about report on its consideration of bail petition.
11. The decision of Bal Mukund (supra), it was on merits of the case. The Hon'ble Supreme Court in Suptd, Narcotic Controls Bureau Chennai vs. R.Paulsamy, reported in (2000) 9 SCC 549 has observed as under:
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"Non compliance with certain provisions of the act-Bail application- Factors to be borne in mind-Respondent and his wife prosecuted under section 8C, 21, 27A, 28 and 29 of the NDPS Act, and under section 193 and 120B of the Penal Code. High court granting bail on the ground of non-compliance with section 52 and 57 of the Act:- Having regard to the provisions of section 37 of the Act: Held, it would be too early to take into account and judge, the matter regarding non-compliance with the formalities during the bail stage. Since recording of findings under section 37 of the Act was a sine-qua non for granting bail under the Act. The minimum facts the court should have taken into account was the factual presumption in law that the official acts by the officers have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the Court."
12. The co-ordinate Bench of this Court in the case of Ireneomoibe @ Iryan D/o.late Omoibe vs. Union of India, in Crl.P.No.4579/2019, decided on 29.8.2019 and in Tasleem N.P. @ Muhammed Thaslim N.P. vs. State of Karnataka, in Crl.P.No.3073/2020 connected with other petitions, decided on 1.10.2020, has referred judgment of Hon'ble Supreme Court in R.Paulsamy (supra) has been referred to hold that it is too early to take into account all the formalities to be 14 completed with for the purpose of deciding bail application. Therefore, if the investigating officer could not obtain FSL report within 15 days, it is not significant that too when there are other materials indicating existence of prima facie materials about the involvement of the petitioner in commission of offence. Same is also the view taken by this Court in Crl.P.No.5240/2020 in the case of Mr.G.P.Akbar Pasha @ Acchu vs. the state of Karnataka, decided on 4.12.2020.
13. So, in the present case also the mahazars and other material show that the commercial quantity of contra band LSD has been recovered from the possession of accused by the officials while discharging their duties and it has to be rebutted during trial.
14. The decision of this Court in Crl.P.No.200402/2020 in the case of Vikram vs. the State of Karnataka, decided on 23.7.2020, is in respect of ganja. In that case the said ganja was seized in a shed from gunny bag. They are not seized from the possession of the petitioner. There the quantity of ganja is 15 also not definite to show that it is a commercial quantity. Therefore the fats of that case will not help the petitioner.
15. The next decision relied upon by the counsel for petitioner is in Deepak Gulabrao Jadhav and others vs. the State of Karnataka, reported in MANU/KA/1800/2013. Again the facts and circumstances of that case are totally different. There was a dispute as to whether the substance was seized from the vehicle, as the petitioner denied that it is occupied by them. But here is a case where there are ample material to show that both the petitioners were found travelling in the vehicle. Therefore, that decision also will not help in any way. In the decision in A.V.Dharmasingh and others vs. the State of Katnataka, reported in MANU/KA/0091/1992, again compliance of mandatory provisions of Section 42 and 50 were referred and section 37 is also referred. In that case a warrant was obtained to search the house of the accused and reasons were not recorded. There it is held that the provisions of section 37 16 of the NDPS Act are not applicable. But here they are fully applicable.
16. As evident that at the stage of considering the bail application and in view of the provision of section 37 of the NDPS Act, the Court has to tentatively make an evaluation to find out whether the accused is not guilty for the purposes of granting bail.
17. If a doubt arises eventually, an opportunity has to be given to the prosecution to establish the same. It is evident that this petitioner/accused no.2 was found along with accused no.1 who is the resident of Bengaluru. It is a COVID-2019 time of lockdown period. His contention that he came to bring medicine for his grandmother has no basis. No records were produced to substantiate the same. The accused no.1, as stated by the learned HCGP, is already involved in two more cases of offence under NDPS Act at Patiala House Courts, New Delhi and it is stated that he is a habitual offender. This petitioner is found in the company of accused no.1 along with the contra band article. The entire material seized contain LSD of 17 commercial quantity. Therefore when such prima facie material are available, simply because still the FSL report is not received, is not a ground to enlarge the petitioner on bail.
18. This type of offences are against the society. It is to be noted that while granting bail the Court has to consider the seriousness of the crime, its impact on the society, the possibility of the petitioner being fleeing from justice. In the light of these principles if the present petition is considered, then the petitioner is not entitled for bail.
19. Therefore, viewed from any angle, if the present petition is considered, then in my considered view the petitioner is not entitled to be enlarged on bail. The apprehension of the prosecution that he may abscond or he may not be available for trial and he may tamper the witnesses also cannot be ruled out. In view of section 37 of the NDPS Act, the petition being devoid of merit is liable to be dismissed. Accordingly I pass the following: 18
ORDER The petition filed by the petitioner under section 439 of Cr.P.C. is hereby dismissed.
Sd/-
JUDGE Mrk/-