Karnataka High Court
Jon Nikolas S/O. Pal vs State Of Karnataka on 15 February, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION No.8300/2021
C/W
CRIMINAL PETITION No.5879/2021
CRIMINAL PETITION No.8300/2021
BETWEEN:
IRFAN SHEK S/O ABDUL SATTAR,
AGED ABOUT 29 YEARS,
RESIDING AT No.201,
RADIANT PRIME ROSE APARTMENT,
3RD MAIN, VINAYAKA 5TH PHASE,
JP NAGAR, BANGALORE-560060. ...PETITIONER
(BY SHRI DEVARAJ P., ADVOCATE)
AND:
STATE OF KARNATAKA,
BY ASHOK NAGAR POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-01. ...RESPONDENT
(BY SMT.RASHMI JADHAV, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.
SEEKING TO ENLARGE THE PETITIONER ON BAIL IN
CR.No.233/2020 REGISTERED BY ASHOKNAGAR POLICE STATION,
BENGALURU, FOR THE OFFENCE PUNISHABLE UNDER SECTION 8
(C), 20 (C) AND 22 (C) OF N.D.P.S. ACT.
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CRIMINAL PETITION No.5879/2021
BETWEEN:
JON NIKOLAS S/O PAL,
AGED ABOUT 21 YEARS,
RESIDING AT No.269/65,
SRI KRISHNA GARDEN,
KELESANAHALLI GATE,
KOTHANUR, BENGALURU. ...PETITIONER
(BY SHRI SWAROOP T., ADVOCATE)
AND:
STATE OF KARNATAKA,
BY ASHOK NAGAR POLICE
BANGALORE
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-01. ...RESPONDENT
(BY SMT.RASHMI JADHAV, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.
SEEKING TO ENLARGE THE PETITIONER ON BAIL IN
CR.No.233/2020 (SPL. C.C.No.788/2021) REGISTERED BY
ASHOKNAGAR POLICE STATION, BENGALURU, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 8 (C), 20 (C) AND 22 (C) OF
N.D.P.S. ACT.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
These petitio ns are filed under Section 439 of Cr.P.C. to enlarge the petitioners on bail in Cr.No .233/2020 of Ashoknagar police station, registered for offence punishable under Sectio ns 8(C), 20(C) and 22 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). Petitio ner in Criminal Petition No.8300/2021 is accused No.2 and petitio ner in Criminal Petition No.5879/2021 is accused No.1. These are successive bail petitions filed by the petitione rs.
2. The earlier petitions filed by accused Nos.1 and 2 in Crl.P.No.5758/2020 c/w Crl.P.No .5738/2020 were dismissed by a common order dated 03.02.2021.
3. The learne d counsel for petitioners submits that earlier petitions were dismissed when the investigation was pending and no w the charge- 4 sheet is filed and therefore, petitioners have filed the present pe titions, as their bail petitions filed subsequent to filing of the charge-sheet have been rejected by the learned Sessions Judge.
4. The contentions of the learned counsel for petitione rs are summarized as under:
The procedure fo llowed while conducting search and seizure is in violation of Sections 50, 52 and 57 of the NDPS Act. The complainant has not informed the accuse d pe rsons of their right of being searched in the presence of a Gazetted Officer and the nearest Magistrate as contemplated in the NDPS Act. The Statute provides that the accused shall be informed about their rights of being searched by a nearest Gazetted Officer and in the case on hand, CW-9, namely the Assistant Commissioner of Police is not the nearest Gazetted Officer. There is no preliminary test conducted at the time of seizure to come to a conclusion that the contraband is a drug 5 as alleged. No drug dete ction kit has been carried to the spot and there fore, it cannot be said that what was seize d from the possession of accused was a Narcotic or Psychotropic Substance as alleged by the prosecution. No independent witnesses have been secured by CW-1. T he seized drug is weighed by a normal wei ghing machine which is not pe rmissible . There is delay in drawing the inventory and sending the contraband to the FSL and therefore, there is no compliance of Section 52 (A) of the NDPS Act. The report has not been submitted to the higher officers as provided under Section 57 of the NDPS Act. The signature is not taken in the seizure mahazar.
5. It is also contended that the petitioners have old aged parents and the petitione rs are the only bre ad earners of the family. Now, the investigation is completed and charge-sheet has 6 been filed and therefore, by imposing any condition, the petitioners may be enlarged on bail.
6. The High Co urt Government Pleader has opposed grant of bail to the petitioners co nte nding that the seize d drugs is a commercial quantity which is not in dispute and the petitione rs were caught red handed and he nce, there is a prima facie case against them. Therefore, in vie w of Section 37 of the NDPS Act, the petitioners are not entitle d fo r the relief. She further contends that this Court has already applied its mind to the seizure panchanama and the procedure followe d and re jected the bail petition and there is no changed circumstance except the fact that the investigation is completed and charge-she et has been filed. She further contends that in the event of grant of bail to the petitione rs, there are chances of they committing similar offe nces and also fleeing from justice. Accordingly, she seeks to dismiss the petition. 7
7. Brief facts are that, on receiving a credible information on 16.09.2020 at about 7 a.m., that two perso ns in a white colour Datsun car bearing registration No.KA-03/NA-8425, near RNI Compound, MG Road, Bengaluru, are in possession of L.S.D strips, Ecstasy Pills and DHC items and they are selling the same to the public and illegally earning money, the complainant and othe r police officials alo ng with panchas went to the spot and apprehended the petitioners/accused Nos.1 and 2. From their possession, 50 jellies of THC weighing 226 grams, 34 Ecstasy Pills weighing 15.5 grams, 27 L.S.D. strips weighing 0.44 grams we re seized, apart from 1 gold color Motorola Mobile phone, 1 blue colour Samsung Mobile phone and the car bearing registration No.KA-03/NA-8425. The seized drugs are commercial quantity which is not seriously disputed.
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8. I have perused the mahazar drawn at the time of seizure of the contraband material. The same would reveal that immediately on apprehending the accused pe rsons, the Police Inspector namely the complainant sho wed the Identity Card and after enquiring the accused pe rsons, secured the Assistant Commissioner of Police to the spot. The mahazar would reveal that befo re effecting the search, accused we re informed of their right of being searched by a Gazetted Officer or a nearest Magistrate and only after their willingness, search was conducted by the Assistant Commissioner o f Police, a Gazetted Office r. The contention that the said Assistant Commissioner of Police is not the nearest Gazette d Officer available and therefore, the said search vitiates the entire seizure, cannot be accepted at this stage . The inventory was drawn before the Magistrate and delay, if any, itself is not a ground to doubt the prosecution case as after the inventory was drawn, 9 samples of the seized drugs were sent to FSL and as pe r FSL repo rt, sample re sponde d positive for Tetrahydrocannabinol and Cannabidiol and Methylenedioxy methamphetamine (MDMA). The drugs were seized unde r a mahazar in the presence of panch witnesses and the refore, at this stage a prima facie case is made out against the petitioners.
9. Infact, this Court while dismissing the earlier petitions has taken into consideration the seizure panchanama and came to a conclusion that there is a prima facie case against the petitioners and therefore , it cannot be said that there are any changed circumstances except the fact that the investigation is completed and charge-sheet has been filed.
10. Under Section 37 of the NDPS Act, the accused are not entitled to be released on bail unless the Court is satisfied that there are reasonable gro unds for believing that they are not 10 guil ty of such offence and that they are not likely to commit any offe nce while on bail. In the instant case, there are no reasonable grounds for believing that the accused are not guilty of the offe nce. Further, the accused committing similar offences if released on bail, also cannot be ruled out. Hence, this is no t a fit case to release the pe titione rs on bail. The refore, the petitions are dismisse d.
Sd/-
JUDGE Jm/-