Karnataka High Court
Firoshkhan @ Firos vs Union Of India on 10 December, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:51034
CRL.P No. 13103 of 2023
C/W CRL.P No. 1184 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 13103 OF 2023
C/W
CRIMINAL PETITION NO. 1184 OF 2024
IN CRL.P No. 13103/2023:
BETWEEN:
NAVEEN KUMAR J
S/O JAGADEESAN R
26 YEARS
R/O H NO.34/147, PERURU ROAD
VEDAPATTI, COIMBATORE
TAMILNADU - 641 007.
...PETITIONER
(BY SRI K.S. VISHWANATHA, ADV.)
AND:
UNION OF INDIA NARCOTICS CONTROL
BUREAU BANGALORE ZONAL UNIT
THROUGH INTELLIGENCE OFFICER
BANGALORE - 560 063
Digitally
signed by REPRESENTED BY LEARNED
NANDINI MS SPECIAL PUBLIC PROSECUTOR.
Location: ...RESPONDENT
High Court of
Karnataka
(BY SRI GOWTHAMDEV C ULLAL, ADV.)
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN CR.NO.48/1/15/2023/BZU
REGISTERED BY THE NCB, BANGALORE FOR ALLEGED OFFENCE
P/U/S 8(c) R/W 22(c), 27, 27(a), 28 AND 29 OF N.D.P.S. ACT WHICH
IS PENDING BEFORE THE HONBLE COURT OF XXXIII CITY CIVIL AND
SESSIONS JUDGE AND SPL. JUDGE (NDPS) AT BENGALURU IN
SPL.C.C.NO.2231/2023.
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NC: 2024:KHC:51034
CRL.P No. 13103 of 2023
C/W CRL.P No. 1184 of 2024
IN CRL.P NO. 1184/2024:
BETWEEN:
FIROSHKHAN @ FIROS
S/O MOHAMMED RAFIQ
AGED ABOUT 25 YEARS
R/AT HOUSE NO.1, MAHARAJA
COLONY, KUNIYAMURTUR
OPP TO WAHAB PETROL BUNK
KUNIYAMUTUR, COMBATORE
TAMIL NADU - 641 008.
...PETITIONER
(BY SRI LETHIF B, ADV.)
AND:
UNION OF INDIA
BY NARCOTIS CONTROL BUREAU,
BANGALORE ZONAL UNIT,
REP BY SPP HIGH COURT BUILDING,
BANGALORE-560001.
...RESPONDENT
(BY SRI UMESH P.B, ADV.)
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN CR.NO.48/1/15/2023/BZU
REGISTERED BY THE NCB, BANGALORE FOR ALLEGED OFFENCE
P/U/S 8(c) R/W 22(c),23-C, 27, 27(a), 28 AND 29 OF N.D.P.S.
ACT WHICH IS PENDING BEFORE THE HONBLE COURT OF XXXIII
CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE (NDPS) AT
BENGALURU.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
Accused Nos.1 and 2 in Spl.C.C.No.2231/2023 pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS, Bengaluru arising out of -3- NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 NCB Crime No.48/1/15/2023/BZU, Bengaluru for the offences punishable under Sections 8(c) read with Section 22(c), 23(c), 27, 27A, 28 and 29 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (for short NDPS Act) are before this Court in these two petitions filed under Section 439 of Cr.P.C seeking regular bail.
2. Heard the learned counsel for parties.
3. It is the case of the prosecution that on 14.04.2023 the first informant had received a credible information from reliable source that a parcel bearing No.AWB No.1ZE048TY6723916033 booked from France through UPS Express Private Limited addressed to accused No.1, Naveen kumar was lying at UPS Express Cargo terminal, KIAL Airport, Bengaluru. The said parcel was intercepted by the officers of NCB and it was found that the parcel contained 103 MDMA pills, totally weighing 50 gms. The contraband article found in the suspected parcel was subjected to panchanama and accused No.1 was issued summons to appear before the Investigation Officer in the present case. Accused No.1 allegedly confessed to the crime and stated that he had procured the contraband article from accused No.2, Firos @ Firozkhan who allegedly had -4- NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 booked the parcel in the name of accused No.1. Accused No.1 was arrested in the present case on 15.04.2023. During the course of investigation, accused No.2 was arrested on 18.09.2023. Subsequently, investigation of the case was completed and a complaint was filed against accused Nos.1 and 2 for the aforesaid offences. Bail application filed by the petitioners before the Trial Court in Crl.Misc.No.10554/2023 and Crl.Misc.No.11447/2023 were rejected on 17.11.2023 and 08.12.2023 respectively. Therefore, they are before this Court.
4. Learned counsel for petitioners submits that petitioners are youngsters and they are in custody for the last more than 1 year. They submit that trial in the case is yet to commence and prosecution has all together cited 8 charge sheet witnesses in the present case. Though the petitioners are said to have been involved in one criminal case each registered against them for the offences punishable under NDPS Act, 1985, in the said case, which is registered against them in the year 2022, till date no charge sheet has been filed. Petitioners have been enlarged on bail in the said case. Accordingly, they pray to allow the petitions.
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5. Per contra, learned counsel appearing for the respondent who has filed their objections have opposed the petitions. They submit that seized contraband article is of commercial quantity and therefore, rigour under Section 37(1)(b) of the NDPS Act is applicable in the present case. Petitioners are persons with criminal antecedents and therefore, no sympathy can be extended against them and rigour under Section 37(1)(b) of the NDPS Act requires to be made strictly applicable against them. They have placed reliance on the judgment of the Hon'ble High Court of Kerala in the case of VIJAY PHILIP V/s. NCB, in bail application No.3709/2023 disposed of on 25.08.2023. Accordingly, prays to dismiss the petitions.
6. According to the case of the prosecution, the suspected parcel had arrived from France in the name of accused No.1. Accused No.1 has been arrested in the present case on 15.04.2023. On the basis of confession statement of accused No.1, recorded under Section 67 of the NDPS Act, accused No.2 has been arraigned as an accused in the present case and he was arrested in the present case on 18.09.2023. Undisputedly, there is no seizure of any contraband article from -6- NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 the possession of accused No.2 in the present case. Investigation of the case is completed and charge sheet has been filed. Accused No.1 is in custody for the last nearly 1 year 8 months and accused No.2, from whose possession no contraband article has been seized in the present case, is in custody for nearly 15 months. Accused No.1 is said to be involved in Crime No.342/2022 registered by Vadavali Police Station, Coimbatore and accused No.2 is said to be involved in Crime No.753/2022 registered by Kodanuru police station Coimbatore . It is not in dispute that in both the aforesaid cases which were registered in the year 2022, till date no charge sheet had been filed against the petitioners. It is also not in dispute that they have been enlarged on bail in the said two cases.
7. The liberty guaranteed to a person under Article 21 of the Constitution of India, guarantees a precious fundamental right to the accused. The Hon'ble Supreme Court in the case of RABIPRAKASH V/S. THE STATE OF ODISSA, reported in 2023 SCC online SC 1109 considering the aforesaid aspect of the matter has observed that prolonged incarceration, generally militates against the most precious fundamental right -7- NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. Therefore, the judgment in the case referred supra rendered by the Hon'ble High Court of Kerala, in bail application No.3709/2023, cannot be made applicable in the present case considering the period of incarceration of the accused persons.
8. So far as present case is concerned, accused No.1 from whose possession contraband article has been allegedly seized, is in custody for the last 20 months and accused No.2 from whom there is no recovery, is in custody for the last 15 months. Trial in the case is yet to commence and prosecution has in all cited 8 charge sheet witnesses in the present case. Therefore, the chances of the trial being completed and case being disposed of on its merits in the immediate near soon is very remote.
9. In the case of Chitta Biswas Alias Subhas vs. State of West Bengal reported in 2020 SCC OnLine SC 1536, the Hon'ble Supreme Court taking into consideration that the accused was in custody for a period of one year seven -8- NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 months and there was no sufficient progress in trial, without expressing any opinion on merits and demerits of the case, has granted regular bail to the accused. In the case of Nitish Adhikary alias Bapan vs. State of West Bengal reported in 2022 SCC OnLine SC 2068 in a case where charge sheet was filed for the offences punishable under Sections 21(c) and 37 of the NDPS Act and accused was in custody for a period of one year seven months, the Hon'ble Supreme Court has granted regular bail on the ground that trial is still in the preliminary stage, as only one witness was examined.
10. It is no doubt that in the cases where, commercial quantity of contraband article is seized, the rigour under Section 37(1)(b) of the NDPS Act would come in the way of the Court in normal circumstances in granting bail to the accused persons. However, in cases where the accused persons are in custody for a considerable period of time and the chances of the trial being completed and the case being disposed of on merits in the very near future is remote, this bail application needs consideration.
11. Considering the period of incarceration of the petitioners in the background of the judgment of the Hon'ble -9- NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 Supreme Court referred to supra and also taking into consideration that in the earlier two criminal cases registered against petitioners in the year 2022, till today no charge sheet has been filed, I am of the opinion that their prayer made for grant of regular bail needs to be answered affirmatively. Accordingly, the following:
ORDER The petitions are allowed. The petitioners are directed to be enlarged on bail Spl.C.C.No.2231/2023 pending before the Court of 33 Additional City Civil and Sessions Judge and Special Judge for NDPS, Bengaluru arising out of NCB Crime No.48/1/15/2023/BZU, Bengaluru of registered for the offences punishable under Sections 22(c), 23(c), 27, 27A, 28 and 29 of the NDPS Act subject to the following conditions:
a) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/-, each with two sureties for the likesum, to the satisfaction of the jurisdictional Court;
b) The petitioners shall appear regularly on all the dates of hearing before the Trial Court unless
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NC: 2024:KHC:51034 CRL.P No. 13103 of 2023 C/W CRL.P No. 1184 of 2024 the Trial Court exempts his appearance for valid reasons;
c) The petitioners shall not directly or indirectly threaten or tamper with the prosecution witnesses;
d) The petitioners shall not involve in similar offences in future;
e) The petitioners shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.
SD/-
(S VISHWAJITH SHETTY) JUDGE LDC