Karnataka High Court
Muhammed Azarudeen M E vs Union Of India on 16 September, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO.5428 OF 2022
BETWEEN:
MUHAMMED AZARUDEEN M.E.,
AGED ABOUT 25 YEARS,
S/O SUHRA V.M.,
R/AT PADDIKKAL HOUSE,
THEKKERPPURAM, ANJUNUR,
KASARGOD DIST, KERALA-671 316. ... PETITIONER
[BY SMT. TARJANI DESAI, ADVOCATE FOR
SRI NARASAPPA.M., ADVOCATE]
AND:
UNION OF INDIA,
BY NARCOTICS CONTROL BUREAU,
REP. BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001. ... RESPONDENT
[BY SRI. MADHUKAR M. DESHPANDE, ADVOCATE]
***
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB
F.NO.48/1/1/2020/BZU FOR THE OFFENCE P/U/S 8(c), 8A R/W 22,
23, 25, 27A, 27B, 29 AND 32B(a) OF THE NDPS ACT, 1985
PENDING BEFORE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE [NDPS], BANGALORE IN SPL.C.C.
NO.286/2020.
THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY
THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner is before this Court in this petition filed under Section 439 of Cr.P.C., praying to enlarge him on bail in NCB.F.No.48/1/1/2020/BZU, registered by the respondent/NCB.
2. Charge-sheet has been filed against accused Nos.1 to 4 for the offence punishable under Sections 8(c), 8A r/w 22, 23, 25, 27A, 27B, 29 and 32B(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to as 'NDPS Act']. The petitioner is arraigned as accused No.1.
3. Petitions seeking similar prayer filed before this Court in Crl.P. No.1685/2020, Crl.P. No.131/2021 and Crl.P. No.3807/2021 have been dismissed.
4. This petition is preferred on the ground that the petitioner is languishing in judicial custody from 08.01.2020 and charges are not yet framed and therefore, there is delay in trial as well as on the ground that the entire materials could not be placed before the Court 3 earlier and further that all other accused are already enlarged on bail.
5. Heard the learned counsel for petitioner and the learned counsel appearing for respondent/NCB and perused the material on record.
6. The respondent has filed statement of objections, opposing grant of bail to the petitioner.
7. The facts leading to the petitioner approaching this Court seeking bail has been narrated in the earlier petitions. However, for disposal of this petition, it is necessary to narrate the facts in brief, which are as under:
On 07.01.2020 at about 12.30 p.m., on receiving a credible information that two persons staying at Hotel Tripura Delux Luxury Rooms/Service Apartment at Sanjaynagar, Bengaluru, were dealing in drugs, the Officers concerned along with the panchwitnesses went to the said hotel and conducted a raid in room No.401. They found a brown coloured bag which was placed on a small table near the bed, which contained 4-5 coloured 4 polythene pouches filled with white crystalline substances which later found to be Methamphetamine. A total quantity of 500 gms. of the said substance was seized, samples were taken and a mahazar was drawn. Accused Nos.1 to 3 who were in the said room were apprehended along with other materials. Further, from a Maruti Swift car bearing reg. No.KL-60/P-3876 parked at the ground floor of the hotel, two bags of Hashish weighing about 1.020 kg. was seized, samples were prepared and the remaining bulk was sealed and packed.
8. According to prosecution, contraband articles were seized at the instance of the petitioner. While observing that the case against the petitioner herein is not same as that of other accused persons, the prayer of the petitioner herein was rejected holding that he is not entitled for bail on the ground of parity. Further, this Court has observed that there is no inordinate delay in the trial so as to enlarge the petitioner on bail. The latest order was passed on 27.9.2021.
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9. It is contended by the learned counsel for the petitioner that, according to prosecution accused Nos.1 and 2 are closely associated with drug peddlers and to make more money, stocked the quantity of Methamphetamine and Hashish. Even according to the prosecution, the room from where the contraband was seized was booked by accused No.2 and the car from which the contraband was seized also belong to accused No.2 and since accused No.2 has been enlarged on bail, the petitioner cannot be detained in custody, by way of pretrial punishment. It is further contended that there was already a direction to expedite the trial, but as on today the charges itself are not framed and the petitioner is languishing in judicial custody since 08.01.2020 and there will be further delay in conclusion of the trial. Relying on various decisions, she contends that in similar circumstances the accused has been enlarged on bail by the Hon'ble Apex Court.
10. It is not in dispute that accused Nos.1 to 3 were arrested together from Room No.401 of one Hotel Tripura Delux Luxury Room/Service Apartment on 08.01.2020. 6 The said hotel room was booked in the name of accused No.2. It is also not in dispute that the vehicle which was seized was in the name of a relative of accused No.2.
11. According to the prosecution, both accused Nos.1 and 2 purchased the Methamphetamine from accused No.4 and from both the accused, 1.020 kg. of Hashish was seized which was concealed in the car. Therefore, at this stage, it can not be conclusively said that only at the instance of the petitioner, the contraband was seized or that only the petitioner had the exclusive knowledge about its concealment in the hotel room and the vehicle. It is not in dispute that accused No.2 as well as accused Nos.3 and 4 are already enlarged on bail. The petitioner was arrested on 08.01.2020 along with accused Nos.2 and 3. Accused Nos.2 and 3 are on bail. Investigation is completed and charge-sheet has been filed. Charges are not yet framed. The petitioner is in judicial custody since last 2 years 8 months.
12. It is relevant to refer to a decision relied on by the petitioner's counsel, rendered in similar circumstance, 7 in the case of Ghanso @ Kalo Vs. State of Punjab in CRM-M-20629-2022 decided on 31.05.2022, wherein relying on various Judgments of the Hon'ble Apex Court, the accused was released on bail. It is useful to refer to the relevant paras of the said Judgment, which are extracted hereunder:
"The Hon'ble Supreme Court has considered the grant of regular bail in cases involving commercial quantity where there is a delay in the conclusion of the trial. In the case of Chitta Biswas @ Subhas Vs. The State of West Bengal Crl.Appeal No.(s) 245/2020 @ SLP(Crl.) No.8823/2019 decided on 07.02.2020 where the recovery was of commercial quantity of phensydryl cough syrup and 04 out of 10 witnesses had been examined, the court granted the concession of bail after the accused had been in custody for approximately 01 years and 07 months.
In the case of Amit Singh Moni Vs. State of Himachal Pradesh Crl.Appeal No.668 of 2020 (Arising Out of SLP (Criminal) No.3813 of 2020) Decided on 12.10.2020 where the recovery was of 3 kg. 285 grams of Charas. The Hon'ble Supreme Court granted bail after the 8 accused had undergone a total custody period of 02 years and 07 months.
In the case of Vipan Sood Vs. State of Punjab & Anr. CRM-M-20177-2020 (O&M) decided on 25.02.2021 this Court had granted the concession of regular bail to the petitioner from whom there had been a recovery of 3.8 kgs. of Charas after he had undergone a total custody period of 01 year and 07 months. The NCB filed an SLP against the said order and the same came to be dismissed by the Hon'ble Supreme Court vide 24.08.2021 in Special Leave to Appeal (Crl.) No(s).5852/2021.
In the case of Kulwant Singh Vs. State of Punjab, Spl. Leave to Appeal (Crl.) No.5187/2021 Decided on 10.11.2021 where the recovery was of commercial quantity looking at the age of the petitioner and incarceration of 02 years the accused was granted the concession of bail.
In the case of Mahmood Kurdeya Vs. Narcotics Control Bureau Crl.Appeal No.1570/2021 (@SLP (Crl.) No.7085/2021) decided on 07.12.2021 where the recovery was of huge quantity of contraband the accused was granted the concession of bail after he had undergone 03 years and 03 months of custody."9
13. The petitioner/accused No.1 has undergone substantial sentence in custody. The other accused are already enlarged on bail. In the light of the above decision referred, by imposing stringent conditions, the petitioner can be admitted to bail. Accordingly, the following:
ORDER The petition is allowed.
The petitioner/accused No.1 is ordered to be released on bail in NCB.F.No.48/1/1/2020/BZU registered by NCB, now pending in Special C.C. No.286/2020 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge [NDPS], Bengaluru, [CCH-33], subject to following conditions:
(1) He shall execute a personal bond in a sum of `2,00,000/- [Rupees Two Lakhs with two sureties for the likesum, out of which one surety shall be a local surety, to the satisfaction of the trial Court.
(2) He shall furnish proof of his residential address and shall inform the Court, if there is change in the address.10
(3) He shall not tamper with the prosecution witnesses either directly or indirectly.
(4) He shall mark his attendance before the jurisdictional Police Station on 1st or 10th of every month between 10.00 a.m. and 5.00 p.m., till conclusion of the trial or until further orders.
(5) He shall appear before the trial Court on all dates of hearing without fail unless exempted from appearing for any genuine reason and shall cooperate for the early disposal of the case.
(6) He shall not indulge in any criminal activities.
If any of the above conditions are violated, the prosecution is at liberty to move for cancellation of the bail.
SD/-
JUDGE Ksm*