Karnataka High Court
Hajipasha S/O Rashidmiyan vs The State Through on 2 August, 2022
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200392/2022
C/W
CRIMINAL PETITION NO.200903/2022
IN CRL.P.No.200392/2022
BETWEEN:
HAJIPASHA S/O RASHIDMIYAN KASAB
AGE: 35 YEARS OCC: DRIVER
R/O: NEAR OLD POLICE STATION,
TQ: KAMALNAGAR DIST: BIDAR-585 328.
...PETITIONER
(BY SHRI.NANDKISHORE BOOB, ADVOCATE)
AND:
THE STATE THROUGH SHANTHAPUR P.S.
NOW REPRESENTING BY ADDL. SPP
HCKB, AT KALABURAGI.
...RESPONDENT
(BY SRI GURURAJ V.HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
RELEASE THE PETITIONER ON BAIL IN CRIME NO.57/2021 OF
SHANTHAPUR POLICE STATION, PENDING ON THE FILE OF
PRINCIPAL DISTRICT JUDGE AT BIDAR, IN SPL. CASE
NO.8/2022, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
20(B) (II) (C) AND 25 OF NDPS ACT, 1985.
2
IN CRL.P.NO.200903/2022
BETWEEN:
ANIL S/O DASHRATH PHULE
AGE: 32 YEARS OCC: DRIVER
R/O: VILLAGE KONMELKUNDA
TQ: BHALKI DIST: BIDAR-585 328.
...PETITIONER
(BY SHRI. ANILKUMAR NAVADAGI, ADVOCATE)
AND:
THE STATE THROUGH
SANTHAPUR POLICE STATION
BY ADDL. SPP,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585 103.
...RESPONDENT
(BY SRI GURURAJ V.HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
ALLOW THE PETITION AND ENLARGE THE PETITIONER ON BAIL
IN CRIME NO.57/2021 OF SANTHAPUR POLICE STATION OF
DIST: BIDAR, REGISTERED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 20 (B) (II) (C) AND SECTION 25 OF NDPS ACT,
WHICH IS NOW PENDING ON THE FILE OF PRL. DISTRICT AND
SESSIONS JUDGE, BIDAR IN SPL. CASE (NDPS) NO.8/2022.
THESE PETITIONS COMNG ON FOR ORDERS THIS DAY,
THE COURT PASSED THE FOLLOWING:
3
ORDER
These petitions are filed under Section 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to enlarge the petitioners, who are arraigned as accused No.4 and 2 respectively, on bail in Crime No.57/2021 of Shanthapur Police Station Dist: Bidar, registered for the offences punishable under Sections 20
(b) (ii) (C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') on the file of Prl. District and Sessions Judge, Bidar.
02. It is the case of the prosecution that on 08.08.2021 at about 08.30 a.m. the complainant - Dy.S.P. Bhalki received credible information that near Kandagol to Wadagoan village Tq: Aurad some persons will illegally transporting the Ganja in Tempo bearing Reg.No.TS-UD- 1094. The complainant secured his staff, videographer, village accountant and panchas. At about 12.40 p.m. they went to Kandagol - Wadagoan road. At 12.57 p.m. they saw one Tempo bearing Reg.No.TS-UD-1094 came from Kandgol village. The police officials stopped the said 4 vehicle, at that time four persons from said vehicle tried to ran-away from there, the police officials caught hold them and enquired their names. They disclosed their names as 1) Omkar s/o Hanamanatappa Halembure, 2) Anil s/o Dashrath Phule, 3) Aslam s/o Gousoddin Mulla and 4) Hajipasha s/o Rashidmiya Kasaab. The accused persons told that they were transporting chilly. When the police officers searched the vehicle, they found that the accused persons were carrying Ganja packets. They found that 592 kgs of Ganja in 274 packets worth of Rs.59,20,000/- was in the vehicle and they had no any permit or license to transport the same. In this regard a FIR came to be registered. The police after investigation have filed the charge sheet. Their bail petitions under Section 439 of Cr.P.C. came to be rejected by the Principal District and Sessions Judge, at Bidar. Hence, the petitioners have filed these petitions.
03. Heard Sri. Nandkishore Boob and Sri. Anilkumar Navadagi, learned counsel for the petitioners and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for the respondent - State in both the petitions. 5
04. Learned counsel for the petitioners argued that the petitioners are falsely implicated in the case. It is alleged that in all totally 592 kgs Ganja was recovered, but it is clearly mentioned in the Panchanama and statement of witnesses that the said Ganja was not dry powder, but the forming contains wet leaf and flowers iteams along with wet Ganja. The respondent - police have not shown the exact weight of Ganja, but falsely shown as commercial quantity of Ganja. The accused Nos.5 to 8 are already granted bail by the Sessions Court. These petitioners are in judicial custody from 08.08.2021. The petitioners are working as agriculturists and driver. The petitioners are ready to abide by any conditions that may be imposed by this Court and ready to offer sureties. Hence, learned counsel for the petitioners prays to allow the petitions.
05. Against this, learned High Court Government Pleader filed objections and argued that if the petitioners are released on bail, they may abscond and they may not appear before the Court. The petitioners are involved in the offence of illegally transportation and selling Ganja. The 6 petitioners being the members of racket involved in such illegal activities. The panchanama was conducted in the presence of Gazzetted Officer. Hence, he prays to reject the petitions.
06. I have perused the material produced before the Court. Admittedly, the offences are not punishable with death or imprisonment for life. Though, in all totally 592 kgs of Ganja was seized in the presence of panchas, but in the panchanama and statement of witnesses it is mentioned that the said Ganja was not dry, but they weighed wet leaf, fruits and flowers items along with wet Ganja. Therefore, the definition of Ganja under Section 2
(iii) (b) of NDPS Act states that "ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated". Admittedly, there are no such previous allegations against these petitioners that they were involved in such activities like selling Ganja or involved in anti-social activities. Their occupation is shown as drivers. The learned Sessions Judge 7 has granted the bail to the accused Nos.5 to 8. The charge sheet is already filed. The petitioners are not required for further investigation.
07. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consideration, (1) the nature and seriousness of the offence;
(2) character of the accused;
(3) circumstances which are peculiar to accused;
(4) reasonable probabilities of presence of the accused not being secured at trial;
(5) reasonable apprehension of witnesses being tampered with; and (6) larger interest of public or the state and similar other considerations, which arise when a Court is asked to admit the accused to bail in a non-bailable offence. 8
08. Therefore, considering the facts and circumstances of the case and in view of above principle, keeping in mind under Section 37 of the NDPS Act, in my considered view, the petitioners have made out sufficient ground to allow the petitions.
09. The apprehension of the prosecution can be meted out by imposing reasonable conditions on the petitioners, as the petitioners have undertaken to co- operate with the investigation and furnish sureties. Accordingly, I proceed to pass the following:
ORDER The Criminal Petition No.200392/2022 and Criminal Petition No.200903/2022 filed under Section 439 of Cr.P.C. are allowed.
The petitioner - accused No.4 Sri. Hajipasha s/o Rashidmiyan Kasab and petitioner - accused No.2 Anil s/o Dashrath Phule, in Crime No.57/2021 of Santhapur Police Station Dist: Bidar, on the file of Prl. District and Sessions Judge, at Bidar, registered for the offences punishable under Sections 20 (b) (ii) (c) and 25 of NDPS Act, shall be released on bail, subject to the following conditions. 9
i) The petitioners shall execute a self bond for Rs.1,00,000/- each with two sureties, for the like sum to the satisfaction of the Trial Court.
ii) The petitioners shall not try to tamper the
prosecution witnesses directly or
indirectly.
iii) The petitioners shall not involve in any criminal activities and shall not commit similar offences.
iv) The petitioners shall furnish proof of their
residential correct address to the
investigating officer and shall inform the Court/Investigating Officer if there is any change in the address.
v) The petitioners shall not leave the jurisdiction of the Trial Court without prior permission of Trial Court.
vi) The petitioners shall appear before the Court on all dates of hearing without fail as and when directed.
In case if any of the condition is violated, the prosecution is at liberty to move application for cancellation of bail.
Sd/-
JUDGE KJJ