Karnataka High Court
Moahmmad Asif @ Asif Basha vs State Of Karnataka on 29 October, 2021
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION No.7576/2021
C/w.
CRIMINAL PETITION NO.8333/2021
IN CRL.P. NO.7576/2021:
BETWEEN:
MOHAMMED ASIF @ ASIF BASHA
S/O ANWAR BASHA
AGED ABOUT 36 YEARS
OFF: FRUITS VENDOR
R/AT MADHINA COLONY
HOSA NAGARA ROAD,
RIPPANPETE,
HOSANAGARA TALUK,
SHIVAMOGGA DISTRICT - 577 418.
..PETITIONER
(BY SRI. HASHMATH PASHA, ADVOCATE
FOR SRI.NASIR ALI, ADVOCATE)
AND:
STATE OF KARNATAKA
2
BY POLICE INSPECTOR
CEN POLICE STATION
DAVANAGERE - 577 004.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU).
..RESPONDENT
(BY SRI.R.D.RENUKARADHYA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.54/2021 OF
DAVANAGERE CEN CR.P.S. DAVANAGERE DISTRICT
FOR THE OFFENCE P/U/S 20(B)(ii)(b) OF NDPS ACT.
IN CRL.P. NO.8333/2021:
BETWEEN:
MOHAMMAD ABDUL REHAMAN @
ABDUL REHAMAN
S/O LATE SHAHUL HAMMED.K
AGED ABOUT 25 YEARS,
OCC : MASAN WORK
R/O 7/90, A,B, FATHIMA COTTAGE,
NEAR GOUSIYA COMPLEX,
4TH CROSS, MULLA STREET,
KODI, KUNDAPURA,
KASABA VILLAGE,
KUNDAPPURA TALUK,
UDUPI DISTRICT - 576 201.
...PETITOINER
(BY SRI.UMESH, ADVOCATE FOR
3
SRI.R.B.DESHPANDE, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CEN CRIME POLICE STATION
DAVANAGERE - 577 004.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU).
..RESPONDENT
(BY SRI.R.D.RENUKARADHYA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.54/2021 OF
DAVANAGERE CEN CR.P.S. DAVANAGERE DISTRICT
FOR THE OFFENCE P/U/S 20(B)(ii)(b) OF NDPS ACT.
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Crl.P. No.7576/2021 is filed by accused No.1 and Crl.P. No.8333/2021 is filed by accused No.2 under Section 439 of Cr.P.C., for granting bail in Crime No.54/2021 registered by CEN Crime Police Station 4 pending on the file of Principal District and Sessions Judge, Davanagere for the offence punishable under Section 20(B)(II)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short).
2. Heard Sri. Hashmath Pasha, learned Senior counsel appearing for the petitioner in Crl.P. No.7576/2021, Sri. Umesh, learned counsel appearing for the petitioner in Crl.P. No.8333/2021 and Sri. R. D. Renukaradhya, learned High Court Government Pleader for respondent - State in both the cases.
3. The case of the prosecution is that a suo-motu complaint is registered by the CEN Police Inspector - Geerish B. V. on 19.08.2021 alleging that on the credible information, himself and his team of members and panchayathdas were went and watched opposite road of Shivagiri Mini Rice Mill, Mittlakatte 5 Village, Harihara Taluk, Davanagere District, they found two person were standing near motorcycle and on-search, they are in possession of plastic bag containing ganja measuring 6.278 grams. The same was seized by the police under the Panchanama in the presence of Panchas and they have been taken to custody and accordingly, they have been remanded to judicial custody. Their bail came to be dismissed by the trial Court therefore, they are before this Court.
3. Learned senior counsel appearing for the petitioners has seriously contended that the petitioners are innocent of the alleged offence and they have been actually offended 9 days prior to the date of the alleged seizure and they have been falsely implicated and even otherwise the alleged ganja is 6.278 grams, which is not a commercial quantity, which is a intermediate quantity. The investigation is in progress but the 6 petitioners are already in custody for 71 days and they are ready to abide by the conditions that may be imposed by this Court.
4. It is also contended that the alleged offence punishable under Section 20(b)(II)(B) of NDPS Act, which is lesser than the commercial quantity and more than the small quantity. The punishment is extended up to 10 years. Therefore, the charge sheet is required to be filed within 60 days. In spite of lapse of 71 days, the Police did not file the charge sheet. Therefore, the petitioners are also entitled for default bail under Section 167(2) of Cr.P.C. and therefore, prayed for granting the bail.
5. Per contra, learned HCGP for respondent - State seriously objected the bail petition.
6. upon hearing the arguments and on perusal of the records, admittedly the police have shown the 7 offences alleged against these petitioners under Section 20(b)(II)(B) of the NDPS Act and remanded them to judicial custody on 09.08.2021. The question of ganja seized from petitioner Nos. 1 and 2 is 6.278 grams, which is more than the small quantity and less than the commercial quantity i.e., intermediate quantity and the offence falls under the category of 20(b)(ii)(B) of the NDPS Act. The punishment is extended up to 10 years and as per Section 167(2) of Cr.P.C., for filing a charge sheet for offence punishable is up to 10 years, is 60 days. Admittedly, as on today, 71 days lapse after their arrest, the police did not filed any charge sheet. In support of his grounds urged, learned senior counsel relied upon the judgments of the Hon'ble Apex Court and various judgments of the co-ordinate benches of this Court.
7. The Hon'bel Apex Court in the case of Rakesh Kumar Paul Vs. State of Assam reported 8 in (2017) 15 SCC 67 wherein, the charge sheet is not filed within the statutory period, the accused need not file any application and the Court required to intimate the accused about the statutory right of granting of bail under Section 167(2) of Cr.P.C.
8. Based upon the judgment, the co-ordinate benches of this Court granted bail especially in W.P. No.10375/2021 in Mohit Baliga Vs. State of Karnataka and Another disposed on 25.06.2021, the co-ordinate bench of this Court considered this aspect and granted bail to the accused persons on default of non - filing of the charge sheet within 60 days.
9. Based upon the judgments and looking to the facts and circumstances of the case, though the charge sheet is not filed within 60 days, the petitioners are entitled for default bail. However, it is not known whether the charge sheet if filed by the police or not 9 within 60 days. Therefore, even on the ground of merits, the alleged ganja is only 6.278 grams, which is a intermediate quantity. The petitioners are in custody merely more than 2 months. Therefore, looking into the merits of the facts and circumstances and by imposing some stringent conditions, if bail is granted no prejudice would cause to the prosecution case and I deem it appropriate to enlarge the petitioners on bail.
9. Hence, I pass the following:
ORDER Both the criminal petitions are allowed. The trial Court is directed to release petitioners- accused Nos. 1 and 2 on bail in Crime No.54/2021 registered by CEN Crime Police Station pending on the file of Principal District and Sessions Judge, Davanagere for the offence punishable under Section 20(B)(II)(b) of the Narcotic Drugs and Psychotropic 10 Substances Act, 1985 subject to the following conditions:-
i. Each of the petitioners shall execute personal bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for likesum to the satisfaction of the trial Court. ii. Petitioners shall not indulge in similar type of offences.
iii. Petitioners shall not tamper with any of the prosecution witnesses directly or indirectly. iv. Petitioners shall not leave the jurisdiction of this Court without prior permission. v. Petitioners shall appear before the Investigating Officer as and when called for investigation.
If any of the conditions are violated, the prosecution is at liberty to file an application for cancellation of bail.
Sd/-
JUDGE VBS