Karnataka High Court
Naveed Sulaiman vs The Intelligence Officer on 13 April, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
CRIMINAL PETITION NO. 9572 OF 2021
BETWEEN:
NAVEED SULAIMAN,
S/O ABDUL HAMEED,
AGED ABOUT 32 YEARS,
RESIDING AT NO.8-10-757/26,
MOIDIN NAGAR, 43, KUDROIL,
MANGALURU, D K DISTRICT-575 003.
... PETITIONER
(BY SRI. ASHWIN VAISH, ADVOCATE FOR
SRI. MOHAMMED SALEHA @ MUKARRAM, ADVOCATE)
AND:
THE INTELLIGENCE OFFICER,
DIRECTOR REVENUE INTELLIGENCE,
BENGALURU ZONAL UNIT,
NO.8(2) P, OPP: BDA COMPLEX,
H. B. R. LAYOUT, KALYAN NAGAR POST,
BANASWADI, BENGALURU-560 043.
REP. BY ITS SPECIAL PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI. AMIT DESHPANDE, CGC)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.P.C BY THE ADVOCATE FOR THE PETITIONER
PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO
ENLARGE THE PETITIONER ON BAIL IN
F.NO.DRI/BZU/S.IV/ENQ-32/(INT-NIL)/2019 BY THE
RESPONDENT POLICE FOR THE OFFENCE P/U/S.36 R/W
SEC.8(c) R/W SEC.21(c),22(c),23(c),27,28 AND 29 OF THE
NDPS ACT AND ETC.,
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDER, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
Petitioner being accused No.2 in Special C.C.No. 1398/2019 under trial for offences punishable u/s 8(c) r/w sections 21(c), 22(c), 23 (c), 27, 28 & 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereafter 1985 Act) is knocking at the doors of this Court seeking his enlargement on bail.
2. After service of notice, the respondent having entered appearance through learned Central Government Counsel have filed the Statement of Objections on 03.02.2022 opposing the petition. The Central Government Counsel makes submission resisting the prayer for the grant of bail inter alia contenting that this is a successive petition there being no change of circumstances and therefore, not maintainable; the offence is grave & heinous; there is sufficient material collected in the investigation which prima facie links the accused with the commission of offences. The interest of justice would be served more by denying bail to this accused than by enlarging him from gaol. So contending, he seeks dismissal of the petition.
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3. The facts recorded by this Court on the earlier occasion being relevant are reproduced below:
"On 27.09.2019 the respondent received credible information that this petitioner being Accused No.2 would receive the parcel of drug in question from DHL, Yeswantpur; this accused having produced his Photo Identity Card before the courier agency was about to receive the parcel and at that time he has been apprehended; the parcel contained MDMA pills 20992 in number and 350 gms. in weight; they were made up of hashish an NDPS".
4. Having heard the learned counsel for the parties and having perused copies of the prosecution papers and further having adverted to relevant of the rulings cited at the Bar, this Court is inclined to grant indulgence in the matter for the following reasons:
(a) At the outset, it needs to be stated that the petitioner was before this court earlier in Crl.P.No.361/2020 and suffered rejection of his application for bail vide order dated 08.06.2020.
Therefore, this petition is a successive one and consequently, it has certain processual constraints, as rightly argued by learned CGC. However, his contention that petition is presented there being no new 4 circumstance, cannot be readily accepted. This having been said, there is another finer aspect which learned counsel for the petitioner highlighted, i.e., as to the march of law since the decision in TOFAN SINGH vs. STATE OF TAMIL NADU (2021) 4 SCC 1, to the effect that the officers empowered u/s. 53 of the 1985 Act are considered as 'police officers' and therefore, the bar enacted u/s. 25 of the Indian Evidence Act, 1872, subject to exceptions u/s. 53-A gets attracted. To that extent, the matter needs a re-look. The Apex Court in KALYAN CHANDRA SARKAR vs. RAJESH RANJAN (2005) 2 SCC 42 at para 20 observed:
'Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.'
(b) There is force in the vehement submission of learned counsel appearing for the petitioner that on the earlier occasion this Court proceeded on a wrong premise that the case is of 'conscious possession' of NDPS when it was not. Apparently, in the text of the charging provision of the 1985 Act, 'possession' is 5 adjectived by the word 'conscious'. Logically, it has to be a case of physical possession of the article and only then this adjective becomes meaningful. The contention of accused draws support from what this Court had observed at paragraph 3(c) of its order dated 08.06.2020, relevant portion whereof reads: "... seizure of the drug was effected at the time when he was about to take from the courier agency; thus there was no need for search at all...". Therefore, there is some scope for the argument that 'conscious possession' cannot be attributed to this accused. To this extent, the contra-
contention of learned CGC for resisting the petition has to fail.
(c) The remand application dated 27.09.2019 filed by the respondent himself contains prima facie credentials of the petitioner: His date of birth is 19.12.1988 and thus he is in the prime of his youth. After completing 12th standard he has done the International Air Transport Association Course at Mangalore and he was employed in Saudi Arabia for about seven years i.e., between May 2012 & April 2019.
"...He has a family of six people and his father Abdul 6 Hameed works in a private company at Mangalore. His mother is a home maker. He is married and his wife is a lecturer in Mangalore..." says para 22.1 of the remand application dated 27.9.2019. There is no material to assume that petitioner had any criminal antecedents. In fact, that is not the case of respondent. It is not desirable that a person of these credentials should continue to languish in confinement where he would come in contact with hardened criminals. In more or less a matchable fact matrix, i.e., in SUJIT TIWARI vs. STATE OF GUJARAT (2020) 13 SCC 447, the Apex Court leaned in favour of enlargement of the accused on bail, of course, there being other grounds as well.
(d) Learned counsel appearing for the petitioner submitted that liberty of citizens need not invariably be curtailed when there is scope for the invokability of proportionality test and that the feasible alternatives to the confinement do avail as such in the form of assurance from the accused to cooperate in the investigation/further investigation if any, and scrupulously participate in the trial, if charges are framed and also of not indulging in any objectionable activities 7 after being enlarged. This submission has a lot of force.
Admittedly, the investigation has been completed; the complaint i.e., Charge sheet has also been filed. Thus, there is no arguable need for the custody of the accused. If needed, he can be asked to appear and, there is a positive assurance from the side of accused. This apart, there is a report filed in the PIL jurisdiction that all jails are over crowded in the State in general and in Bangalore in particular, which fact this court cannot refused to take judicial notice of. Although, COVID-19 pandemic has receded, it is not that the virus is dead & gone; the medical reports suggest of its revival with suspected higher virility because of rapid mutation. To all these aspects which to an extent count in favour of liberty of an under-trial citizen, this court cannot turn a Nelson's eye.
(e) Learned counsel for the petitioner argued that the prosecution papers have several lacunae: two of the persons who were there at the scene of offence have not been cited as the prosecution witnesses and there is no explanation for the same; the box containing the contraband article has not been seized nor any 8 explanation is offered therefor, either. The observations of the Apex Court in NOOR AGA vs. STATE OF PUNJAB (2008) 16 SCC 417 may lend some support to the case of petitioner. However, these aspects do not merit a deeper examination at the hands of this court in bail jurisdiction, as rightly contended by the learned CGC.
(f) Learned CGC vehemently contended that in matters involving NDPS, bail is not ordinarily granted as a matter of course, is true. However, the text & context of the Act does not construct a great wall of China against the grant of bail in all cases in a wholesale way. The principle of innocence of the accused is not completely excluded from the statutory jurisprudence, even with the incorporation of a Negative Burden Clause. Its invocation & scope of applicability to a great extent are diminished, is true. Justice V.R.Krishna Iyer's echo 'Bail is a rule and jail is an exception' (STATE OF RAJASTAN vs. BALCHAND AIR 1977 SC 2447) may not readily come to the aid of an accused, in the text & context of the Act in question. In bail jurisdiction, the focal point is the facts & circumstances of each case. Learned CGC's reliance on the Coordinate Bench 9 decisions in Crl.P.No.6916/2021 between JOSWIN LOBO VS. STATE OF KARNATAKA, disposed off on 02.02.2022 and Crl.P.No.2566/2020 between SHIVARAJ URS VS. UNION OF INDIA, disposed off on 09.07.2020 do not come to his rescue much, although they throw some light on the aspects which the bail Court in matters like this has to keep in mind. These decisions are more fact specific and less precedential. His reliance on a latest decision of the Apex Court in UNION OF INDIA v. Md. NAWAZ KHAN AIR 2021 SC 4476, would also not come to much help. Several specifics to the case therein having weighed for denying bail to the accused therein, one of them being his culpable conduct of missing the trial proceedings sans justification and that having resulted into the trial court issuing serial NBW. However, that is not the case here.
(g) The vehement contention of learned CGC that there is enough material collected in the investigation which prima facie links the accused to the commission of offence may be arguably true. But that cannot be the sole ground to deny bail in the facts & circumstances of the case. There are many other factors which need to be 10 balanced when the liberty of an under-trial is at stake and balancing them is hopefully feasible. When the charges would be framed and trial would begin is not known; how long it will take for the accomplishment of the trial is not predictable, regard being had to mounting pendency of cases. Court cannot afford to ignore the realities of trial & tribulation of citizens. The apprehension of the respondent that if released on bail, the petitioner may revert to the Black World of Drugs and thereby, imperil the public interest, is a poor ground to deny bail. After all, it is a matter of policing. Added, such an apprehension can be addressed by imposing stringent conditions. Thus, a case is made out for granting relief to the petitioner.
In the above circumstances, this petition succeeds; petitioner is admitted to bail and ordered to be enlarged from confinement forthwith subject to the following conditions:
(i) Petitioner shall execute a Personal Bond for a sum of Rs.2,00,000/- (Rupees two lakh) only with two 11 sureties for the like-sum each, to the satisfaction of learned trial Judge;
(ii) Petitioner shall not indulge in any act prejudicial to further investigation, if any, or free & fair trial of the offences involved, nor shall he intimidate or influence the prosecution witnesses;
(iii) Petitioner shall participate in the trial proceedings in the court below on regular basis and shall not remain absent without the leave of said court nor shall he leave the territorial limits of the trial Court without prior permission; further, he shall deposit his Passport with the trial Court and shall not travel abroad till the disposal of case.
(iv) Petitioner shall mark his attendance in the jurisdictional police station on every alternate Saturday between 9.00 am & 1.00 p.m., and also mark his attendance before INTELLIGENCE OFFICER, DIRECTOR REVENUE INTELLIGENCE, BENGALURU ZONAL UNIT, or before his designate, on the first Monday of every calendar month, till after the disposal of criminal case;
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(v) It is open to the respondent and to the concerned police, as well, to seek revocation of bail if petitioner breaches of any of the above conditions or commits any offence under the 1985 Act or any other criminal law.
It is made clear that the observations made herein above being confined to the disposal of bail petition, shall not in any way influence the trial & disposal of criminal case in question.
Sd/-
JUDGE Snb/