Karnataka High Court
Mohammad Juber And Ors vs The State Of Karnataka on 13 July, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200456/2020
Between:
1. Mohammad Juber
S/o P.S.Adam
Age: 30 years
R/o Kemminje
Puttur taluk
D.K.District
2. Mohammad Sufiyan
S/o Abdul Hakeem
Aged 28 years
R/o Maril, Darbe
Puttur taluk
D.K.District
Presently R/o 4th floor
Near Avenue Plaza
Hulimavu, Vapital super market
Bannergatta road
Bengaluru
3. Ningappa
S/o Malappa Bevinakatti
Aged about 56 years
Agriculturist
R/o Banathihal village
2
Shahapur taluk
Yadgiri district
...Petitioners
(By Sri K. Ravishankar, Advocate)
And:
The State of Karnataka
By SHO, Shahapur police station
Yadagiri
Karnataka
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C. praying to allow the petition and consequently
enlarge the petitioner on bail in relation to Crime
No.139/2020 registered by the respondent for the offence
punishable under Section 20(b)(ii)(B) of NDPS Act 1985
pending on the file of the Dist. & Sessions Judge Yadgiri.
This petition coming on for orders this day, the Court
made the following:
ORDER
(Through Virtual Court) The present petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioners/accused Nos.1 to 3 on bail in connection with Crime No.139/2020 of Shahapur police station, Dist. Yadgir, which is registered for the offence punishable under Section 3 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').
2. The respondent-police upon receipt of credible information on 02.05.2020 at about 3:30 p.m. that a vehicle namely 407 tempo bearing Reg.No.KA-53- B-1106 was illegally transporting ganja for the purpose of selling the same was proceeding towards Shahapur via Doranalli and therefore, the police officials have stopped the tempo in which three accused persons were carrying Papaya fruits and beneath that Papaya fruits they noticed plastic tray wherein they noticed storage of ganja in three of the saree bundle total quantity of 5kg and 500gms of worth Rs.55,000/- and accordingly panchanama was conducted in presence of Tahsildar and panchas. Accordingly, crime came to be registered under Section 20(b)(ii)(B) of the NDPS Act against the petitioners herein.
4
3. The learned counsel for the petitioners submitted that the alleged seizure of ganja is not having commercial quantity but medieval quantity for which punishment is rigorous imprisonment for a term which may extend to ten years and petitioners are in judicial custody for more than 70 days. Further submitted that the mother of the 1st petitioner is a chronic diabetic patient and she is age old person and the marriage of the sister of the 2nd petitioner is scheduled on 23.07.2020 in this regard records are produced. Further submitted that this Court with regard to same allegations has granted anticipatory bail in some cases even though there is seizure of 53 kg of ganja. Further submitted that even though over large quantity of seizure of 21 kg and other more quantity than in the present case this Court had granted regular bail and the copy of the orders have been produced and argued that in the present case also the petitioners be enlarged on 5 bail and petitioners are ready and willing to abide by any conditions that may be imposed by this Court.
4. On the other hand, the learned HCGP submitted that in the present case there is recovery of 5kg and 500 gams of ganja and investigation is going on and whereabouts of other accused is yet to be investigated and traced out. Therefore, submitted if the petitioners are released on bail, then there would be chances of tampering the prosecution witnesses and there is likehood of they being absconded and they may not be available for trial. On these grounds, he prayed to dismiss the petition.
5. Considering these factors that has revealed from the materials available at this stage in the present case ganja to the extent of 5kg and 500 gms have been seized from the possession of accused. The said ganja was being transported in tempo hiding with other vegetables and fruits. Investigation is still under 6 progress and for filing of final report in the present case the period prescribed is 180 days. Further more, upon considering Section 37 of the NDPS Act, certain limitations are imposed while considering the bail applications. Section 37 of the NDPS Act says only when the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. In this regard, I place reliance on the judgment of the Hon'ble Apex Court in the case of Narcotics Control Bureau vs. Dilip Pralhad Namade [(2004) 3 Supreme Court Cases 619]. Their lordships while making interpretation of Section 37 of the NDPS Act, were pleased to issue the guidelines, which as follows ;-
"9. As observed by this Court in Union of India v. Thamisharasi (1995) 4 SC 253) clause (b) of sub- section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such 7 offence and that he is not likely to commit any offence while on bail.
10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far the present respondent-accused is concerned, are (1) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, and (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds"
means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.
11. A bare reading of the impugned judgment shows that the scope and ambit of 8 Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance with the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.
12. The circumstances under which the bail can be granted in the background of Section 37 have been indicated above. The case is not one to which the exceptions provided in Section 37 can be applied."
6. Further, the Hon'ble Apex Court in the judgment of Intelligence Officer, Narcotics C.Bureau vs. Sambhu Sonkar and another [(2001) 2 Supreme Court Cases 562], their lordships were pleased to hold as follows ;-
"5. The scheme of Section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which commences with non- obstante clause. The operative part of the said section is in negative in prescribing (sic proscribing) the enlargement on bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for 9 believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. As per the mandate of Section 37, no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be released on bail unless the conditions mentioned in sub- clauses (i) and (ii) of Clause (b) are satisfied. Pre- condition for application of clause (b) would be that the offence is punishable for a term of imprisonment of 5 years or more. Plain reading of the above said clause makes it clear that in case where the person is accused of an offence punishable for a terms of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20(b)(i), maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs.50,000/-. There is no justifiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
6. Further, even if we consider the legislative intent in context of other provisions which provide for punishment it would be clear that Section 37 would cover in its fold the offence punishable under Section 20(b)(i). Provisions empowering the Court to impose punishment can be divided into four parts, namely, (i) less than five years, (ii) up to five years, (iii) more than five years, and (iv) providing death penalty. Sections 26, 27 and 32 provide for imprisonment for a term which may be less than five years. Section 25(a) provides that the imprisonment may extend up to ten years. Other sections, namely, Section 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide that punishment shall not be "for a term less than ten years". Except 10 Section 20(b)(i), there is no provision which prescribes that imprisonment may extend to five years. For the offence punishable under said Section, in appropriate cases, court may impose maximum punishment of five years. Therefore, there is no reason to exclude the said clause from the operation of Section 37.
7. The aforesaid interpretation is also in consonance with the legislative object. The Act has provided stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and matters connected therewith. For granting of bail, in the Statement of Objects and Reasons for introducing Bill 125 of 1988 (Act 2 of 1989), the following passage has been stated:
"Even though the major offences are non- bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt.""
7. Therefore, considering the principle of guidelines issued by the Hon'ble Apex Court (stated supra) while considering present petition in the context of Section 37 of the NDPS Act and made applicable in the present set of facts and circumstances involved into the case, in the present case, as per the materials 11 available at this stage, there are four bags found containing ganja powder of different quantity in the said four bags totally weighing 5 kg. 500 grams. Therefore, the manner in which the ganja was being transported in the said vehicle is done by the persons who may be professionals in doing such acts. In this regard, as it appears prima facie upon considering the police report submitted for registration of the crime, therefore, the bail petition filed by the petitioners is liable to be dismissed.
8. In the present case the investigation is still under progress and final report yet to be filed. But the learned counsel for the petitioners submitted that the Investigating Officer had filed charge sheet against the petitioners. But, charge sheet has not been produced before the Court. Therefore, this Court does not have charge sheet to consider the same to the effect that what is investigation carried out by the Investigating Officer. Therefore, here in the present case since at this 12 stage the Court is of the opinion that the copy of the charge sheet is not available and investigation is still going on therefore at this stage if petitioners are enlarged on bail, there is likehood of they being absconded and they may not be available for trial. Further Investigating Officer has to conduct investigation on the aspect who are other persons behind the scene of making transportation of such huge quantity of ganja.
9. Therefore, for all these reasons, the petition is liable to be rejected. Accordingly, the petition is rejected. Further, the petitioners are granted liberty to move bail application after filing of charge sheet, if they, so wish.
Sd/-
JUDGE sdu