Karnataka High Court
Rithik vs The State Of Karnataka on 5 October, 2023
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2023:KHC:36187
CRL.P No. 8523 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 8523 OF 2023
BETWEEN:
RITHIK
S/O. PRAVEEN,
AGED ABOUT 23 YEARS,
NARAYAN SANTHI COMPOUND,
NEAR NARAYAN GURU HIGH SCHOOL,
KUDROLI,MANGALURU, D.K. DISTRICT-78.
...PETITIONER
(BY SRI. PRATHEEP K C.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY CEN CRIME POLICE STATION,
MADIKERI,KODAGU DISTRICT,
REP. BY ITS STATE PUBLIC PROSECUTOR,
Digitally HIGH COURT OF KARNATAKA,
signed by
NANDINI MS BANGALORE-560 001.
Location: ...RESPONDENT
HIGH
COURT OF (BY SMT SOWMYA R., HCGP)
KARNATAKA
***
CRL.P FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.43/2023 REGISTERED BY
KODAGU CEN CRIME POLICE STATION, KODAGU - MADIKERI
FOR THE OFFENCE P/U/S 20(b)(ii)(A) AND 22(b) OF N.D.P.S.
ACT, ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:36187
CRL.P No. 8523 of 2023
ORDER
Accused No.5 in Crime No.43/2023 registered by CEN Crime Police Station, Kodagu - Madikeri, for offences punishable under Sections 20(b)(ii)(A) and 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is before this Court under Section 439 of Cr.P.C.
2. Heard the learned counsel for the parties.
3. FIR in Cr. No.43/2023 was registered by the CEN Police, Kodagu - Madikeri, against unknown persons for offences punishable under Sections 20(b)(ii)(A) and 22(b) of the NDPS Act, 1985, based on the report submitted by Sri Vinod Kumar.M.N., Police Constable attached to CEN Crime Police Station, Madikere, Kodagu District.
4. In his report the Informant has stated that he had received credible information at about 3.30am on 16.07.2023 to the effect that in a Home Stay belonging to Sri B.H. Sadashiva of Makkandur Village, some strangers were having party after consuming drugs.
5. Based on the said information, the Police had formed a raiding team consisting of a Gazetted Officer and -3- NC: 2023:KHC:36187 CRL.P No. 8523 of 2023 panchas and they conducted a raid on the Home Stay belonging to Sri B.H. Sadashiva of Makkandur Village on 16.07.2023 and had apprehended 16 persons, who were staying in the said Home Stay and from their possession totally 414 grams of Ganja and 9 strips of LSD substance was allegedly seized.
6. It is the case of the prosecution that from the possession of the petitioner 7 grams of Ganja and 9 strips of LSD substance were seized and from the possession of other persons different quantity of Ganja was seized. The aforesaid contra band articles were seized from the accused in the presence of panchas and Gazetted Officer. Thereafter, the raiding party returned to the Police Station and submitted a report. Based on the said report the apprehended persons were arraigned as accused Nos.1 to 16 in Crime No.43/2023 registered by CEN Crime Police Station, Kodagu - Madikeri and they were produced before the jurisdictional Police and remanded to judicial custody.
7. The bail application filed by the petitioner before the Court of Sessions Judge, Kodagu - Madikeri in Crl. Misc. No. 275/2023 came to be rejected on 18.08.2023, hence the petitioner is before this Court.
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8. The learned counsel for petitioner submits that the quantity of LSD allegedly seized from the possession of the petitioner is not mentioned in the seizure mahazar. The quantity of the contra band article Ganja seized from other persons are of small quantity. Except the petitioner all other accused persons are granted bail. Only for the reason that LSD was seized from the possession of the petitioner, he has been refused regular bail by the learned Session Judge.
9. He submits that the quantity of LSD strips seized from the possession of the petitioner is not mentioned either in the seizure mahazar or in the inventory prepared by the Investigating Officer. Therefore, adverse inference is required to be drawn against the prosecution. He accordingly prays to allow the petition.
10. Per contra, the learned HCGP who has opposed the bail application submits that Sessions Court has assigned reasons for distinguishing the case of the petitioner from the other accused who have been granted bail. She submits that petitioner was found in possession of contra band article LSD substance and the report now received from the FSL, would clearly go to show that the seized contra band article has -5- NC: 2023:KHC:36187 CRL.P No. 8523 of 2023 tested positive for LSD and therefore, she seeks to dismiss the petition.
11. The material on record would go to show that on credible information a raid was conducted on the Home Stay of one Sri Sadashiva, wherein accused persons were staying. From the possession of the persons apprehended totally 414 grams of Ganja was seized. From the possession of the petitioner 7 grams of Ganja and 9 strips of LSD was allegedly recovered. The ganja seized is of small quantity. However, in the seizure mahazer the weight of the seized LSD strips is not mentioned.
12. This Court on the last date of hearing directed the learned HCGP to produce the inventory prepared by the Investigating Officer to ascertain the weight of the seized contra band article, namely LSD. The learned HCGP has produced before Court the FSL test report of seized contra band articles, but the copy of the inventory prepared by the Investigating Officer which was certified by the Magistrate, is not produced. Copy of the certificate issued by the jurisdictional Magistrate under Section 52A of the NDPS Act is made available to the Court.
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13. On perusal of the certificate, it is evident that even in the inventory the weight of the contra band article, ie, LSD, is not mentioned. Under the provisions of NDPS Act punishment to the accused depends upon the quantity of the contra band articles seized from his possession. Therefore, it becomes mandatory for the Investigating Officer to weigh the contra band articles seized from the possession of the accused and mention the exact weight of the seized contra band articles in the seizure mahazar as well as in the inventory.
14. Learned HCGP has today filed an affidavit of the Investigating Officer. Perusal of the same, would go to show that the exact weight of the seized contra band article, ie., LSD is not mentioned either in the seizure mahazar or in the inventory produced before the Court. The explanation given is that while conducting the raid proper weighing machine was not available with them. However, even in the inventory prepared the weight of seized LSD strips is not mentioned. The said explanation therefore, cannot be accepted.
15. There is a serious lapse on the part of the Investigating Officer and the same cannot be considered as mistake by the Investigating Officer. For the reason that the -7- NC: 2023:KHC:36187 CRL.P No. 8523 of 2023 weight of the contra band article seized is not mentioned in the seizure mahazar or in the inventory prepared by the Investigating Officer, the investigation gets vitiated.
16. The petitioner, who is aged 23 years and has no antecedents, is in custody since 16.07.2023, when the other accused persons, who were apprehended along with him have been already released on bail.
17. Under the said circumstances, I am of the view that the petitioner is also required to be enlarged on bail. Accordingly, the following:
ORDER The Criminal Petition is allowed.
The petitioner is directed to be enlarged on bail in Crime No.43/2023 registered by CEN Crime Police Station, Kodagu - Madikeri, for offences punishable under Sections 20(b)(ii)(A) and 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, subject to the following conditions:
(a) Petitioner shall execute a personal bond for a sum of Rs.1,00,000 (Rupees One Lakh only) with one surety for the likesum, to the satisfaction of the jurisdictional Court;-8-
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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;
d) The petitioner shall not involve in similar cases in future.
SD/-
JUDGE VK List No.: 1 Sl No.: 43