Karnataka High Court
Keval M Lohith vs State Of Karnataka on 21 October, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.4969/2020
BETWEEN:
Keval M. Lohith
S/o Manjunath
Aged about 27 years
R/at No.349/A, 17th Main
HSR Layout, 3rd Sector
Bengaluru-560 102.
...Petitioner
(By Sri K.S.Vishwanath, Advocate)
AND:
State of Karnataka
by Halasuru Police Station
Bengaluru-560 008
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
...Respondent
(By Sri R.D.Renukaradhya, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.141/2020 of Halasuru Police Station, Bengaluru, for
the offence punishable under Section 22(c) of NDPS Act,
pending on the file of the XXXIII Additional City Civil &
Sessions Judge and Special Judge for NDPS, Bengauru.
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This Criminal Petition coming on for Orders 'through
Video Conference', this day, the Court made the
following:-
ORDER
The present petition has been filed by the petitioner- accused No.1 under Section 439 of Cr.P.C. to release him on bail in Crime No.141/2020 of Halasur Police Station for the offences punishable under Sections 22(c) of NDPS Act (pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS, Bengaluru).
2. I have heard the learned counsel Sri.K.V.Vishwanatha for the petitioner-accused virtually and the learned High Court Government Pleader Sri.R.D.Renukaradhya for the respondent-State.
3. The genesis of the case of the prosecution in brief is that, on 29.8.2020 at about 3.30 p.m. they received credible information about selling of drug by two persons near Lido Bus stop, Halasur, Bengaluru. They went to the said place at about 4.30 p.m. and there they saw two -3- persons standing with white and blue colour Honda Dio vehicle and were selling drug. They have been surrounded and apprehended on the spot. On conducting the personal search of accused No.1 they have found 500 paper sheets of different designs weighing 6.9 grams of LSD, mobile phones and on conducting search from accused No.2 they found blue and pink colored 50 MDMA ecstasy pills weighing 23.6 grams, mobile phone, cash of Rs.2,000/- and Honda Dio vehicle. All these items have been seized and a report has been submitted. On the basis of the complaint a case has been registered.
4. It is the submission of the learned counsel for the petitioner-accused that the police have not complied the mandatory provisions of the NDPS Act. It is his further submission that when the accused persons have been apprehended, they have not been informed about their right of search in the presence of the Gazetted Officer and even the A.C.P. who has put the question is not an authorized person to enlighten to the right of the accused. -4- It is his further submission that the respondent-police have not conducted a primary test with field test kit at the time of seizure of the said article to show that the seized substances are prohibited drug nor psychotropic substances. It is his further submission that the compliance of the said provisions is mandatory and if it is not conducted, the petitioner-accused is entitled to be released on bail. It is his further submission that as per the Regulation 1.18 and standing instruction No.1.88, the prosecution and investigating authority is required to produce the quantitative and qualitative test within 15 days and 13 days respectively. As on the date no such report is produced to show that the seized substance is prohibited drug. It is his further submission that the petitioner-accused is having no bad antecedents and he is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner-accused on bail.
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5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the records indicates that the provisions of Section 50 have been followed and the proceedings clearly goes to show that a question has been prepared and the accused persons have been asked whether he has to be searched in the presence of the Magistrate or not and the accused has stated that he can be searched in the presence of the Gazetted Officer and in that light the A.C.P. has made a personal search of the petitioner-accused No.1. It is his further submission that non-compliance of the provisions of the NDPS Act is not having any great effect on the case of the prosecution. It is too early to take into account of the said facts. It is his further submission that the Court has to record a finding under Section 37 of the Act for granting the bail. In order to substantiate his said contention he has relied upon the decision in the case of Superintendent, Narcotics Control Bureau, Chennai Vs. R.Paulsamy, reported in (2000)9 SCC 549 and submits that in view of the ratio laid -6- down by the Hon'ble Apex Court the petitioner has not made out any grounds to release him on bail. It is his further submission that still investigation is in progress and even after arrest of the accused when the vehicle has been seized and searched, there also they have been found the narcotic and in that light it is his submission that the petitioner-accused has not made out any ground so as to release him on bail. It is his further submission that examination of the contents of the material has to be considered only when the Investigating Officer sent the sample for qualitative analysis and another for quantitative analysis and after the reports are secured and the charge sheet has been filed, at that stage, it has to be taken into consideration. In that light, he relied upon the decision in the case of Shaikh Nizamuddin Mohd. Kasim Vs. The State by DRI in Criminal Petition No.162/2020 disposed of 29.5.2020. It is his further submission that the petitioner- accused is released on bail, he may abscond and may -7- indulge in similar type of criminal activities. On these grounds he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. The Hon'ble Apex Court in the case of Superintendent, Narcotics Control Bureau, Chennai quoted supra has laid down the parameters to be followed while considering the bail application moved by the accused involved in the offence of NDPS Act. In the case of Union of India Vs. Ram Samujh and Another reported in (1999) 9 SCC 429 has given the guidelines. In the case of Superintendent, Narcotics Control Bureau, Chennai quoted supra, it has been observed that in the light of Section 37 of the Act, no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence -8- and he is not likely to commit any offence while on bail and in that light, the formalities which has to be followed have been considered to be too early to take into account and at paragraph No.6 it has been observed as under:
"Non compliance with certain provisions of the Act - Bail application - Factors to be borne in mind - Respondent and his wife prosecuted under section 8C, 21, 27A, 28 and 29 of the NDPS Act, and under Ss.193 and 120B of Penal Code. High Court granting bail on the ground of non-compliance with Ss.52 and 57 of the Act - Having regard to the provisions section 37 of the Act, held, it would be too early to take into account and judge the matter regarding non- compliance with the formalities during the bail stage - Since recording of findings under S.37 of the Act was a sine qua non for granting bail under the Act. The minimum facts the court should have taken into account was the factual presumption in law that the official acts by the officers have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the court."-9-
8. Keeping in view the ratio laid down in the decision quoted supra, on perusal of the records though it is contended by the learned counsel for the petitioner that when a search has been conducted, the mandatory provisions of Section 50 has not been complied and the searching authority i.e. PSI has not given any instructions to the accused about his right to search in the presence of the Magistrate or the Gazetted Officer. But however, on going through the records, when A.C.P. came and he has put the question in the vernacular language and he has asked about the right of the accused to be examined in the presence of the Magistrate or a Gazetted Officer and as accused has stated that he may be examined before the Gazetted Officer, in that light there is no lacuna in the procedure adopted by the investigating agency.
9. It is the second submission of the learned counsel for the petitioner accused that the searching authority have conducted the primary test with field test at the time of
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seizure to show that prima facie seized substances are prohibited drug. On close reading of the material produced, it indicates that, the said test has not been conducted and only the portion of the drug have been taken and the same has been sent for chemical examination to FSL. That too non-compliance of the primary test with any filed test kit at the time of seizure of the case, prima facie it is going to hit the case of the prosecution. Whether the seized article is a contraband article or not, has to be ascertained in the kit test and field test and it is not done. Under such circumstances, I am of the considered opinion that the petitioner-accused has satisfied that there are reasonable grounds for believing that he is not guilty of the offence so as to release him on bail.
10. Taking into consideration the said facts and circumstances, the petition is allowed. The petitioner- accused is ordered to be released on bail in Crime No.141/2020 of Halasur Police Station for the offences punishable under Sections 22(c) of NDPS Act (pending on
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the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS, Bengaluru), subject to the following conditions:
i) Petitioner-accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) He shall not tamper with the prosecution evidence directly or indirectly.
iii) He shall not leave the jurisdiction of the Court without prior permission.
iv) He shall mark his attendance before the jurisdictional police once in 15 days in between 10.00 a.m. and 5.00 p.m. till the trial is completed.
v) He shall not indulge in similar type of criminal activities. If he again indulged in similar type of criminal activities, the trial Court is at liberty to cancel the bail.
Sd/-
JUDGE *AP/-