Karnataka High Court
Nagappa S/O Yallavva Kallolleppagol vs The State Of Karnataka on 17 November, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.102062/2021
BETWEEN:
NAGAPPA,
S/O YALLAVVA KALLOLLEPPAGOL,
AGED: 24 YEARS,
R/O: BELAGALI,
MUDHOL TALUK,
BAGALKOTE DISTRICT - 587 103.
...PETITIONER
(BY SRI J. BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
(BY EXCISE RANGE OFFICE,
MUDHOL),
REPRESENTED BY
HIGH COURT PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD - 580 011.
... RESPONDENT
(BY SRI RAMESH B. CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED
U/SEC.439 OF CR.P.C., SEEKING TO ENLARGE
THE PETITINOER/ACCUSED ON BAIL IN CRIME
NO.05/2021 (FIR NO. 05/2021-22/0608IE/
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060808) REGISTERED IN KARNATAKA EXCISE
DEPARTMENT, MUDHOL RANGE, BAGALKOT
DISTRICT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 8(b) AND (c), 20(A),
20(ii)(c) AND 25 OF NDPS ACT 1985 PENDING
INVESTIGATION AND TRIAL OF THE CASE.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The sole accused has filed this petition under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.5/2021 o Bagalkot Sub-Division, Karnataka Excise Department, Mudhol Range Bagalkot District registered for the offences punishable under Sections 8(b), 8(c), 20(a), 20(ii)(C) and 25 of Narcotic Drugs and Psychotropic Substances, act, 1985 (hereinafter referred to as the 'NDPS Act', for brevity).
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2. The case of the prosecution is that one Santosh Harijan, Excise Inspector, Mudhol filed a complaint alleging that on 20.09.2021 at 10.00 a.m., he received a credible information that the petitioner was cultivating ganja plants amidst turmeric crop, in the land bearing R.S. No.342/6 situated at Belagali Village, which is standing in the name of his mother. The complainant immediately along with his staff, Panchas and one Officer went to the said land where the accused was present. When they searched there in the said land they found that 21 ganja plants in one lane and 35 ganja plants in another lane, in total 56 plants. The said plants were got uprooted and weighed and the same were weighing in all 140 kilograms. He seized the same under a Mahazar in the presence of Panchas. The said 4 complaint came to be registered in Crime No.5/2021 for the aforesaid offences and the accused came to be arrested on the same day. Petitioner filed Crl.Misc. No.440/2021 seeking bail and the same came to be rejected by the Principal District and Sessins Judge, Bagalkot by order dated 07.10.2021. Therefore, the petitioner is before this Court seeking bail.
3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. It would be the contention of the learned counsel for the petitioner that the total plants seized were 56 weighing 140 kg which includes roots, stems and leaves etc. The entire plant cannot be considered as ganja under Section 2(b)(c) NDPS Act. Therefore, 5 the quantity seized is not a commercial quantity. He also submits that there is no mention whether the said plants were having flowering of fruiting tops. It is further submitted that the provision of Section 42 of the Act is not complied, investigation is almost over and the petitioner is ready to co-operate with police during investigation. With this, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader for the respondent-State contended that the petitioner was cultivating ganja plants in the land belonging to his mother and the complainant found 56 cannabis plants which were uprooted and weighed 140 kgs which is a commercial quantity. Therefore, he submits that the petitioner is not entitled for grant of bail. It is his further submission 6 that since the investigation is still in progress and if, the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, he prayed to dismiss the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the complaint and other records.
7. The accusation leveled against the petitioner is that he had cultivated 56 ganja plants in the land belonging to his mother and the total weight of seized cannabis plants is 140 kg which contains roots, stems and leaves. Whether the entire cannabis plants amounts to ganja has to be considered by referring to the 7 definition of 'ganja' under Section 2(iii)(b) of NDPS Act, which read thus:
"ganja, that is, the f lowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by wh atever name they may be known or designated."
8. On perusal of the aforesaid definition, the entire plant does not come under the definition of ganja. In the complaint there is no mention of whether cannabis plants seized were having flowering of fruiting tops. Therefore, under this circumstance, it cannot be said that the quantity seized is a commercial quantity. When the seized quantity is not the commercial quantity the rigor of Section 37 is not applicable. Further, whether the seized cannabis plants are cannabis plants 8 or not, can be ascertained after final report. There are no criminal antecedents of the petitioner. The main objection of learned HCGP that if petitioner is granted bail he will hamper the investigation, threaten the complainant and the prosecution witnesses can be set right by imposing stringent conditions.
9. In the facts and circumstances of the case and the submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner shall be released on bail in Crime 9 No.5/2021 of respondent, subject to the following conditions:
i) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees One Lakh Only) with one surety for the like sum to the satisfaction of the jurisdictional Court.
ii) Petitioner shall co-operate with
the investigation and make
himself available for interrogation whenever required.
iii) The petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
iv) The petitioners shall not obstruct or hamper the Police investigation 10 and not to play mischief with the evidence collected or yet be collected by the Police.
Sd/-
JUDGE Sbs*