Karnataka High Court
Toure Mustafa @ Mustafa vs State Of Karnataka on 3 September, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.2742 OF 2019
Between:
Toure Mustafa @ Mustafa,
S/o. Mustafa,
Aged about 44 years,
N/o. Enugu, Abdijan,
Ivory Coast, West Africa.
Present Address:
No.5(43), Ground Floor,
Murulesh Building,
Near Sharada School,
Chikanna Layout,
Hennur, Bengaluru-560 043. ...Petitioner
(By Sri N.Tejas, Advocate for
Sri.C.Satish, Advocate)
And:
State of Karnataka:
By Hennur Police,
Bengaluru-560 042.
(Represented by learned
State Public Prosecutor),
High Court Building,
Bengaluru-560 001. ...Respondent
(By Sri Honnappa, HCGP)
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This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in
Cr.No.67/2019 of Hennur Police Station, Bengaluru City for
the offence punishable under Section 20(c) of N.D.P.S Act
and under Section 14 of Foreigners Act.
This Criminal Petition coming on for Orders, this
day, the Court made the following:
ORDER
Heard the learned counsel for the petitioner and also learned High Court Government Pleader for respondent-State. Perused the records.
2. The allegations made against the petitioner is that the accused was having a house taken for rent at Chikkanna layout near Sharada school which belonged to one Sri.Marulesh. It is alleged that the accused has stored ganja in the said house. On credible information, the Police registered a case in Crime No.67/2019 under Section 20(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and Section 14 of Foreigners' Act and 3 visited the said spot and arrested the accused on 14.03.2019 and at the instance of the accused, they searched the house of the accused and found 32 kgs of ganja and cash of Rs.5,000/- and three mobile phones and they seized the same. Out of the said 32 kgs, 15 kgs one bundle and 16 kgs another bundle were seized. Out of them, 200 grams were separated and sent for qualitative analysis of NDPS Drug.
3. In order to consider the bail petition under Section 439 of Cr.P.C., the Court has to bear in mind that the accused has also passed the rigour of Section 37 of NDPS Act. Section 37 of NDPS Act prescribes that an opportunity should be given to the Public Prosecutor before consideration of the bail petition. Consequently, the Court should give a finding prima facie that the accused is not guilty of the offence as alleged. Particularly, there is no chance of accused repeating the crime if he is released on bail. 4
4. In the touch-stone of the above said provisions under Section 439 of Cr.P.C., if ingredients of Section 37 of NDPS Act are seen, of course there is seizure of seriously 32 k.gs of ganja, but the mahazar discloses that one bundle containing 15 kgs and another 16 kgs bundle were recovered. But it is specifically stated that the ganja weighing 32 kgs containing leaves, seeds, stem and flowers. Therefore, it clearly goes to show that the entire ganja plants have been seized and there is no bifurcation as to the actual weight of ganja which is available in the said case, in order to ascertain whether the accused had possessed ganja exceeding the commercial quantity. When doubt is created in the mind of the Court, it becomes the duty of the prosecution to establish that they have sent the ganja seeds for two purposes as per Circular No.1/38 issued by the Central Government that is for the purpose of qualitative and 5 quantitative analysis of the drug seized. In this particular case, there is no material sent to FSL for quantitative analysis. Only 400 grams, that is 200 grams from each packet has been taken out and sent for qualitative analysis. As the prosecution has not proved that the accused possessed commercial quantity of ganja, the rigour of Section 37 is not applicable. Otherwise, it complies with the requirement of Section 439 of Cr.P.C., and he is required to be enlarged on bail.
5. Under the above said circumstances and in view of the doubt on the materials available on record with regard to the possession of commercial quantity, in my opinion, as there is no previous antecedents particularly against the accused, Court cannot jump to any conclusion at this stage that he may repeat the similar offence. In my opinion, the petitioner is entitled to be enlarged on bail. Hence, the following: 6
ORDER The Petition is allowed. Consequently, the petitioner shall be released on bail in connection with Crime No.67/2019 of Hennur Police Station registered for the offence punishable under Section 20(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 14 of Foreigners' Act, subject to the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.1,00,000/-
(one lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional court on all the future hearing dates unless exempted by the court for any genuine cause.
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(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the court till the case registered against him is disposed of.
Sd/-
JUDGE bnv