Karnataka High Court
Mohammed Muktar @ Suleman vs The State Of Karnataka By on 12 September, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:37815
CRL.P No. 7471 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 7471 OF 2024
BETWEEN:
MOHAMMED MUKTAR
@ SULEMAN
S/O ABDUL ILAKIM
AGED ABOUT 32 YEARS
R/AT NO.18, SHIVAREDDY
LAYOUT, NAGANATHAPURA
VILLAGE, BENGALURU CITY - 560 100.
...PETITIONER
(BY SRI JAGADEESHA H, ADV.)
AND:
THE STATE OF KARNATAKA BY
PARAPPANA AGRAHARA POLICE
STATION, BANGALORE, REP. BY STATE
PUBLIC PROSECUTOR, HIGH COURT
COMPLEX, BANGALORE - 560 001.
Digitally
signed by ...RESPONDENT
NANDINI MS
Location: (BY SRI K. NAGESHWARAPPA,HCGP)
High Court
of Karnataka THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN SPL.C.C.NO. /2024 (CR.NO.730/2023)
OF FOFENCE P/US/ 8(c),22(c) OF NDPS ACT OF RESPONDENT
PARAPPANA AGRAHARA POLICE STATION, BENGLAURU PENDING ON
THE FILE OF THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE NDPS AT BENGALURU (CCH-33).
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:37815
CRL.P No. 7471 of 2024
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused in Spl.CC.No.837/2024 pending before the Court of XXXIII Addl. City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, arising out of Crime No.730/2023 registered by Parappana Agrahara Police Station, Bengaluru, for the offences punishable under Sections 8(c), 22(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), is before this Court under Section 439 Cr.PC.
2. Heard the learned Counsel for the parties.
3. It is the case of the prosecution that on 23.12.2023 at about 12.30 p.m., the first informant had received a credible information from the informant that a person residing in premises bearing No.18, Shivareddy Layout, Naganathapura, Bengaluru, was in possession of contraband article and he was making attempts to sell the same to public. On receipt of such credible information, the first informant after obtaining permission from his higher officers, conducted a raid to the premises in question along with panchas and his staff and apprehended the person who was found in the premises, and -3- NC: 2024:KHC:37815 CRL.P No. 7471 of 2024 on inquiry, he informed his name as Muhammed Muktar @ Suleman. He also informed the police that he was in contact with a Nigerian friend from whom he purchased the contraband article and sold the same to public for a higher price. From the possession of the accused, 100 LSD strips weighing 1.59 grams was recovered and subjected to panchanama. Thereafter, the apprehended accused and the seized contraband article were brought to the police station and FIR in Crime No.730/2023 was registered. The apprehended accused was arrested and produced before the jurisdictional court and remanded to judicial custody on 23.12.2023. Investigation in the case is completed and charge sheet has been filed against the petitioner for the aforesaid offences. Bail application filed by the petitioner before the Trial Court in Crl. Misc. No.451/2024 was rejected on 29.01.2024. Therefore, he is before this Court.
4. Learned Counsel for the petitioner submits that petitioner has no criminal antecedents and is in custody from 23.12.2023. Investigation in the case is completed and charge sheet has been filed. There is a serious discrepancy in the quantity of the contraband article seized and that was produced before the Magistrate during the inventory proceedings. He submits that, -4- NC: 2024:KHC:37815 CRL.P No. 7471 of 2024 therefore, the case of the prosecution becomes doubtful. He also submits that there is no compliance of Sections 42 & 50 of the NDPS Act in the present case. Accordingly, he prays to allow the petition.
5. Per contra, learned HCGP has opposed the petition contending that seized contraband article is of commercial quantity, and therefore, in view of Section 37(1)(b) of the NDPS Act, petitioner cannot be granted bail. He submits that discrepancy in the weight of the seized contraband article is only for the reason that the weighing machine that was used at the time of preparing the inventory was not properly functioning. The weight of the contraband article as found in the seizure mahazar and also as found in the Forensic Science Laboratory report tallies, and therefore, there is no discrepancy in the weight of the contraband article as sought to be contended by the learned Counsel for the petitioner. He also submits that Investigation Officer has complied with the requirements of Sections 42 & 50 of the NDPS Act in the present case. Accordingly, he prays to dismiss the petition. -5-
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6. The material on record would go to show that on the basis of the credible information received on 23.12.2023 at about 12.30 p.m., a raid was conducted and petitioner who was working in a Travels Company at Madiwala in Bengaluru, was arrested and from his possession, 100 strips of LSD totally weighing 1.59 grams was seized. In addition to the same, his mobile phone was also seized. In the first information dated 23.12.2023, it is mentioned that the total value of the seized contraband article is approximately about Rs.10 lakhs. The seized contraband article was subjected to panchanama, and thereafter, during the course of investigation, the seized contraband article was produced before the jurisdictional Magistrate on 29.12.2023 in compliance of the requirement of Section 52A of the NDPS Act. The inventory that was prepared by the police was submitted on 29.12.2023 before the jurisdictional Magistrate. As per the certified inventory, the contraband article 100 strips of LSD totally weighed 0.18 grams. Out of the same, 0.002 grams of contraband article was drawn as sample for the purpose of forwarding the same to FSL for chemical examination. The contraband article has been received in the office of the FSL on 06.01.2024. In the report -6- NC: 2024:KHC:37815 CRL.P No. 7471 of 2024 dated 08.02.2024 of the Laboratory, it is mentioned that the weight of the sample received before examination is 1.80 grams and the weight of the sample returned after examination is 1.60 grams. The sample drawn before the Magistrate only weighed 0.002 grams, whereas the sample which was received in the FSL would go to show that it weighed 1.80 grams. There is a huge difference in the weight of the contraband article seized as found in the seizure mahazar, inventory records and as per the FSL test report. As per the relevant notification issued under the NDPS Act, 0.002 grams of LSD is small quantity and 0.1 grams is commercial quantity. The explanation offered by the prosecution about the description in the weight of the contraband article seized is not acceptable. According to the prosecution, the weighing machine did not reflect the proper weight of the contraband article seized when it was weighed on 29.12.2023 before the jurisdictional Magistrate in compliance of the requirement of Section 52A of the NDPS Act.
7. However, the fact remains that the entire seized contraband article was produced before the jurisdictional Magistrate on 29.12.2023 in compliance of Section 52A of the NDPS Act and the sample of the contraband article was drawn -7- NC: 2024:KHC:37815 CRL.P No. 7471 of 2024 on 29.12.2023 in front of the Magistrate and thereafter, the Magistrate has certified the inventory. There is a legal sanctity for the certified inventory issued under Section 52A of the NDPS Act by the Magistrate and the same cannot be overlooked by the courts. The description of the weight of the contraband article as per the inventory records compared to the seizure mahazar and FSL test report is huge. Section 52A of the Act is introduced in order to avoid foul play by the police during the course of investigation of the case registered for the offences punishable under the provisions of the NDPS Act. The High Officers are, therefore, required to keep track of the investigation and monitor the same. If any major discrepancies are found, explanation is required to be called for from the concerned officials, and thereafter, appropriate action to be taken.
8. Undisputedly, petitioner has no criminal antecedents. He is in custody from 23.12.2023. Investigation in the case is completed and charge sheet has been filed. In view of the inconsistency found in the case of prosecution, the rigor under Section 37(1)(b) of the Act cannot be made strictly applicable to the petitioner's case. Under the circumstances, I am of the -8- NC: 2024:KHC:37815 CRL.P No. 7471 of 2024 opinion that petitioner's prayer for grant of regular bail is required to be answered affirmatively subject to appropriate conditions. Accordingly, the following order:
9. The petition is allowed. The petitioner is directed to be enlarged on bail in Spl.CC.No.837/2024 pending before the Court of XXXIII Addl. City Civil & Sessions Judge and Special Judge (NDPS), Bengaluru, arising out of Crime No.730/2023 registered by Parappana Agrahara Police Station, Bengaluru, for the offences punishable under Sections 8(c), 22(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985, subject to the following conditions:
a) Petitioner shall execute personal bond for a sum of Rs.1,00,000/- with two sureties for the likesum, out of which, one shall be local surety, to the satisfaction of the jurisdictional Court;
b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;
c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;-9-
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d) The petitioner shall not involve in similar offences in future;
e) The petitioner 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 KK