Karnataka High Court
Nishan Abdul Khader S/O Abdul Aziz vs The Intelligence Officer on 26 September, 2016
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER 2016
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL PETITION NO.5161/2016
BETWEEN:
NISHAN ABDUL KHADER S/O ABDUL AZIZ
AGED ABOUT 28 YEARS
RESIDENT OF NO.14, 3RD FLOOR
3RD CROSS, LINGAPPA BLOCK
H.D.DEVEGOWDA MAIN ROAD
R.T.NAGAR POST,
BENGALURU - 560 032.
BUT ACTUALLY RESIDING AT NO.945,
8TH CROSS, 16TH MAIN
B.T.M.LAYOUT, II STAGE,
BENGALURU - 560 076.
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE) ...PETITIONER
(BY SRI HASHMATH PASHA, ADV.)
AND:
THE INTELLIGENCE OFFICER
NARCOTIC CONTROL BUREAU
BENGALURU ZONAL UNIT
OFFICE AT KATIGENAHALLI
BAGALURU MAIN ROAD
YALAHANKA POST, BENGALURU - 560 063.
(REPRESENTED BY THE LEARNED
SPECIAL PUBLIC PROSECUTOR) ...RESPONDENT
(BY SRI GOPALA KRISHNA GOKALE, SPL.PP FOR
SRI K.N.MOHAN, SPL.PP)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
NCB F.NO.48/1/17/2015/BZU ON THE FILE OF THE NARCOTIC
CONTROL BUREAU, BANGALORE WHICH IS NOW PENDING IN
SPL.C.C.NO.231/2016 ON THE FILE OF THE XXXIII ADDL. CITY
CIVIL AND S.J. AND SPL. JUDGE FOR NDPS ACASES,
BENGALURU, FOR THE OFFENCE P/U/S 8(c) R/W 20(b), 21, 22,
27, 27(a), 28, 29 & 32B(d) OF NDPS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This is a petition filed under Section 439 of Cr.P.C.
2. The petitioner is arrayed as accused No.1 in the complaint submitted by the respondent/Intelligence Officer, Narcotic Control Bureau, before the Special Court in Special C.C.No.231/2016. It is alleged that the accused persons have committed offence under Sections 8(c) read with Section 20(b), 21, 22, 27, 27(a), 28, 29 and 32B(d) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short).
3. As per the prosecution case, incriminating substance was seized from the house of one Darshith Mitha (accused No.5), who is allegedly the girl friend of -3- the petitioner and this petitioner had access to the said house. As per the recovery mahazar averments, the Investigating Officer has seized 110 grams of cocaine and LSD paper block, MDMA of 1.2 grams and Hashish of 19 grams. Out of the above as per the notification published in the Gazette of India dated 19th October 2001, 'Cocaine' seized in this case falls under the category of commercial quantity.
4. As per the submission of Sri.Hashmath Pasha, learned Counsel for the petitioner, assuming for a while the entire case of the prosecution as true and genuine, then also, there is no allegation of the petitioner engaging in selling of the narcotic drugs; as per the case of the prosecution itself the drugs seized was for the personal use, and the punishment contemplated under Section 27 is applicable i.e., imprisonment for a maximum period of six months or fine up to Rs.10,000/-. Since the 'Cocaine' was weighed along with the packing material, its actual -4- weight is necessarily less than 110 grams, then it goes out of the definition of commercial quantity. Punishment as contemplated for offence is as contemplated by Section 20(B) i.e., rigorous imprisonment which may extend to 10 years and with fine which may extend to Rs.1,00,000/-. The petitioner is in custody, since 29-11- 2015. Since charge sheet is filed, he may be released on bail.
5. In reply, Sri Gopala Krishna Gokale, learned Special Public Prosecutor for the respondent submits that the petitioner is habitual in drug trafficking. The packing material was a polythene packet of insignificant weight. He is accused in another criminal case on identical allegation. He sells drugs to the student community at Bangalore by collecting the same from one Kelvin/the co-accused. The student community is falling prey to drug addiction. As per the notification dated 18.11.2009, existence of narcotic drug in any form is -5- enough to attract the provisions of the Act and not necessarily in its pure form. He is one of accused in NCB case No.48/1/17/2015/BZU. He was in conscious possession of the residence from where the Narcotic drugs are seized. The seized incriminating material on being subjected to forensic examination are found to be Cocaine, LSD, 2-(N-N-Dimethyl)-1, Charas. Bail is not a rule in a case registered under the Act. As per Section 37(1)(b)(ii), the satisfaction of the Court that, he is not guilty of such offence and is not likely to commit similar offence while on bail, is necessary. The petitioner having no legitimate earning, definitely would persist his illegal activities. Unless he rebuts the statutory presumption, arising from Section 54 of the Act during trial he is not entitled for bail.
6. In the light of the rival submissions as above, for the present what draws the attention of this Court? -6-
7. Some of the co-accused are enlarged on bail. Though it is the submission of the prosecution that they have sought for cancellation of bail before this Court, that has not happened yet.
8. The weight of cocaine seized under Mahazar plays crucial role. Other narcotic drugs seized under mahazar barring cocaine are below commercial quantity. Without the case passing through the test of trial, at this stage only it cannot be prejudged as to whether cocaine seized is of commercial quantity or not. Since his custodial interrogation and recording of his confession statement are complete, his physical custody is not warranted for the purpose of further investigation.
Accordingly, the petition is allowed. Petitioner is granted bail in NCB.F.No.18/1/17/2015/BZU on the file of the Narcotic Control Bureau, Bangalore, subject to the following conditions:
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i) He shall execute a self-bond for Rs.2,00,000/- (Rupees Two Lakhs only) with two local sureties for the like sum to the satisfaction of the concerned Sessions Court. The learned Court while accepting the surety bond, shall examine the original title deeds of the properties of the sureties.
ii) He shall not leave the country until conclusion of the trial without prior notice to the Investigating Officer.
iii) He shall appear before the Investigation Officer as and when called for.
iv) He shall not prevail upon or terrorize the prosecution witnesses.
Sd/-
JUDGE KNM/-