Karnataka High Court
Sri.Magoola John vs State Of Karnataka on 26 November, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 26th DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.5935/2020
BETWEEN:
Sri.Magoola John,
Aged about 28 years,
Son of late Magoola Martin,
R/a Durgamma layout,
Kattigenahalli,
Yelahanka,
Bengaluru - 560 064.
...Petitioner
(By Sri.Hashmath Pasha, Sr. Counsel
for Sri.Nasir Ali, Advocate)
AND:
State of Karnataka,
By Yelahanka Police,
Bengaluru City-560 064,
Rep. by Learned Public Prosecutor.
...Respondent
(By Sri.Mahesh Shetty, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.42/2020 of Yelahanka P.S., Bengaluru City for the
offence P/U/S. 20(b)(ii)(c) of NDPS Act.
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This Criminal Petition coming on for Orders, this day,
the Court made the following:-
ORDER
This petition has been filed by the petitioner-accused under Section 439 of Cr.P.C. to release him on bail in Crime No.42/2020 of Yelahanka Police Station for the offence punishable under Section 20(b)(ii)(c) of NDPS Act.
2. I have heard the learned Senior counsel Sri.Hashmath Pasha for the petitioner-accused and the learned High Court Government Pleader Sri.Mahesh Shetty the respondent-State.
3. The brief facts of the case in brief are that on 10.3.2020 at about 2.00 p.m. the respondent police received a credible information that in Kattigenahalli behind the Government School one person is selling ganja to the public and to the students. Immediately, he collected panchas and also the Executive Engineer of B.B.M.P. as a Gazetted Officer and proceeded to the house of one -3- Manjunath and there he found one African person who was standing at the terrace and on seeing them, he came to 3rd floor of the house and opened the door and on search of the said house the police found three plastic bags containing ganja. On checking the same, they found 8 Kgs. of ganja in each of the packets, totally 24 Kgs. and the same has been seized by drawing a mahazar and a case has been registered.
4. It is the submission of the learned Senior counsel for the petitioner-accused that the police inspector immediately after receipt of the information is required to register the same in the register of cases and under Section 42 of the Act it's copy has to be forwarded to the official superior. It is his further submission that the Assistant Executive Engineer of BBMP is not a Gazetted Officer as contemplated under Section 42(1) of the Act and also under Section 50 of the Act. It is his further submission that the article which has been seized has been mentioned as ganja, but as per Section 2(iii)(b) of NDPS Act 'ganja, is -4- the flowering or 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'. But in the instant case on hand, it is not defined the contents of the plastic bag and have not given any description of the article contained in the said plastic bag. It is his further submission that no kit test has been conducted so as to come to the conclusion that the seized article is a ganja. It is his further submission that till date no such report has been filed what is the contents of the packet which has been seized.
5. It is his further submission that the petitioner- accused has been apprehended on 10.3.2020 and has been remanded on 11.3.2020. As per Section 36(A)(4) of the Act, it mandates that the charge sheet has to be filed within 180 days. It is further submitted that 180 days are going to be completed on 6.9.2020. It is his further submission that in order to file an application for extension of the time for the purpose of filing of the charge sheet under Section -5- 36(A)(4) of the NDPS Act, two conditions are to be satisfied. The first one is the public prosecutor must indicate the progress of the investigation and the second condition is that specific reasons for detention of the accused beyond the period of 180 days has to be indicated, but when the application has been filed by the learned Public Prosecutor on 4.9.2020, he has mechanically filed the said application without application of mind and there being any reasons assigned except stating that the FSL report has not yet been received. It is his further submission that the Order Sheet of the trial Court dated 4.9.2020 indicates that a application filed under Section 167(2) of Cr.P.C. has been entered into and subsequently the same has been strike off and thereafter an entry has been made to the effect that the public prosecutor has filed an application under Section 309 of Cr.P.C. along with an application under Section 36(A)(4) of the NDPS Act. That itself indicates that in order to avoid the statutory bail to the accused, such effort has been made. It is his further submission that -6- though 180 days is going to be completed by 6.9.2020 and an application has been filed under Section 36(A)(4) of the NDPS Act before 6.9.2020, no orders have been passed. Subsequently, the order has been passed on both the applications under Section 167(2) of Cr.P.C. and under Section 36(A)(4) of NDPS Act on 24.9.2020. Under such circumstances, the trial Court ought to have exercised the power under Section 167(2) of Cr.P.C and could have been enlarged on bail. It is his further submission that indefinitely the liberty to the accused cannot be postponed, once a statutory liberty has been granted to him under Section 167(2) of Cr.P.C. until and unless the conditions which have been stated under Section 36(A)(4) of the NDPS Act satisfied and no reasons have been assigned to show that the detention of the petitioner-accused is necessary for the purpose of further investigation. It is his further submission that the administrative difficulty is not a ground to extend the time for filing of the charge sheet. The petitioner-accused is ready to abide by the conditions that -7- may be 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.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that before 180 days 167(2) application has been filed on 4.9.2020. The right of the accused is going to be accrued only on 6.9.2020 and the application filed itself is pre-matured. It is his further submission that the reasons assigned for extension of the time is that the FSL report is not yet been received and while filing the application, the learned public prosecutor has also given the reasons and the trial Court after taking into consideration the factual matrix of the case on hand has passed the correct order. It is his further submission that the petitioner-accused has been found with commercial quantity of ganja and the provisions of Section 37 of the Act is applicable and in that light, the Court has to give the reasons for that the petitioner- accused has not involved in the said case. It is his further -8- submission that the petitioner-accused is a foreign national and if he is released on bail he may abscond and may not be available for the trial. On these grounds he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. On perusal of the records it indicates that on 10.3.2020 the respondent received a credible information and immediately they went to the house of one Manjunatha and there they have seized 3 packets each containing 8 Kgs. of ganja.
9. On perusal of the records nowhere it has been specifically mentioned what is the contents of the packet except saying that it is ganja. Section 2(iii)(b) of the Act defined ganja as under:
"Ganja, is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the -9- tops), by whatever name they may be known or designated'.
10. On close reading of the definition of ganja it indicates flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops). That means the flowering or fruiting tops of the cannabis plant is very much essential to constitute it to be a ganja. But no such bifurcation have been made either in the panchanama or any other records. Even the records indicates that no kit test has been conducted on the spot and it indicates that the standing order No.1.18 has also not been complied. As per the standing order 1.18, within 30 days the qualitative test has to be conducted, as per standing order 1.88 within 15 days quantitative test has to be done. But in the instant case, admittedly till date neither the FSL report has been filed nor any test report has been produced for the reasons best known to the prosecution.
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11. Be that as it may. Even as could be seen from Section 36(A)(4) proviso indicates that if any person has been charged for the offence under the said Act for the purpose of filing of the charge sheet is 180 days time has been provided. Proviso to the said Section enables the Investigating Agency, if within 180 days if it is not possible to complete the investigation, then it can move the application before the Special Court for extension of the said period up to one year. But in order to file an application it has to fulfill two conditions. The first condition is that the prosecution has to indicate the progress of the investigation made till that date and the second condition is the specific reason for detention of the accused beyond the said period of 180 days. But on perusal of the application filed by the learned Public Prosecutor, no such reasons have been assigned except stating that, for the purpose of filing of the charge sheet, FSL report is an important document and when the charge
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sheet cannot filed and the FSL report has also not come, as such 180 days has to be extended.
12. Be that as it may. Even as could be seen from the records, the said application has been filed on 4.9.2020 and immediately thereafter the Court has issued the notice to the accused for his reply and the order sheet indicates that he has filed his objections to the said application on 9.9.2020 and even at that time also no order has been passed by the trial Court either extending the time or giving any reasons on the application filed under Section 167(2) of Cr.P.C. When the time of 180 days is going to be expired on 6.9.2020, before that or on the same day, the Court could have passed an order either extending of time or otherwise. When an application has been filed for the purpose of extension of time on 4.9.2020 and the accused was admittedly in judicial custody, the trial Court ought to have taken into consideration the statutory right available to the accused and it could have been expedited on or before 6.9.2020. When the Court has not exercised its
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power on the application filed under Section 36(A)(4) of NDPS Act for extension, then the statutory right which has been there to the accused accrues immediately after 180 days and if an application has been filed by the accused and if it is pending, then the right will be there to get him released on bail.
13. The trial Court without looking into the niceties of these aspects has kept the application filed by the prosecution in abeyance till 24.9.2020 and has passed the orders on both the applications on that day.
14. Taking into consideration the above factual matrix of the case on hand, there is no definiteness of the contents of the seized article whether it is ganja or not and no kit test has also been conducted and so far, the FSL report has also not been filed and even the right has also been accrued automatically to the petitioner-accused under Section 167(2) of Cr.P.C. In that light, the petitioner-
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accused has made out a prima-facie case so as to release him on bail.
15. In that light, this petition is allowed. The petitioner-accused is ordered to be released on bail in Crime No.42/2020 of Yelahanka Police Station for the offence punishable under Section 20(b)(ii)(c) of NDPS Act, 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 regularly attend the trial unless exempted by the trial Court for genuine reason.
iv) He shall not leave the jurisdiction of the Court without prior permission.
v) He shall mark his attendance before the jurisdictional police on 1st of every month in
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between 10.00 a.m. and 5.00 p.m. till the trial is completed.
vi) He shall not indulge in similar type of criminal activities.
vii) If he again indulged in similar type of criminal activities and violates any one of the above conditions, the trial Court is at liberty to cancel the bail.
Sd/-
JUDGE *AP/-