Karnataka High Court
Radhika Sehrai vs Union Of India on 9 January, 2023
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CRL.P No. 12172 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 12172 OF 2022
BETWEEN:
RADHIKA SEHRAI
D/O. ASHOK SEHRAI
AGED ABOUT 29 YEARS
R/AT. NO.304, 3RD FLOOR
MAITHRI OPULENCE
6TH 'A' MAIN, G.M. PALYA
NEW THIPPASANDRA
BANGALORE - 560 075
...PETITIONER
(BY SRI: TEJAS .N., ADVOCATE)
AND:
UNION OF INDIA
NARCOTIC CONTROL BUREAU
BANGALORE ZONAL UNIT
BANGALORE - 560 001
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR)
...RESPONDENT
Digitally signed (BY SRI: BALAKRISHNA .M.R., ADVOCATE)
by NANDINI B G
Location: High
Court Of THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
Karnataka
CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.48/1/28/2022/BZU REGISTERED BY UNION OF INDIA/NCB
POLICE, BENGALURU ZONAL UNIT, BENGALURU, FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 8(C), 20(B)(II)(A), 21(B), 22(B),
22(C), 23, 25, 27A, 28 AND 29 OF N.D.P.S. ACT PENDING ON THE
FILE OF XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE (NDPS), BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
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CRL.P No. 12172 of 2022
ORDER
The petitioner-accused No.2 is before this Court seeking grant of bail under Section 439 of Cr.P.C. in NCB Crime No.48/1/28/2022/BZU of Union of India, Narcotic Control Bureau, Bengaluru Zonal Unit, Bengaluru, pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru, registered for the offences punishable under Sections 8(c), 20(b)(ii)(A), 21(b), 22(b), 22(c), 23, 25, 27A, 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act (for short 'NDPS Act').
2. Heard Sri N Tejas, learned counsel for the petitioner and Sri M R Balakrishna, learned High Court Government Pleader for the respondent -State. Perused the materials on record.
3. Learned counsel for the petitioner submitted that the petitioner is arrayed as accused No.2. She is a lady. She was residing in the rented house along with accused Nos.1 and
3. The Investigating Officer held search in the room which was in the occupation of the petitioner, without following the procedure as contemplated under Section 41(2) of NDPS Act. -3- CRL.P No. 12172 of 2022 Even though it is stated that LSD strips were recovered, the same were not tested with the drug detection kit. All other contraband are of small quantity. The petitioner was apprehended on 23.11.2022. Since then she is in judicial custody. She is not required for further investigation. Her detention in custody would amount to pre-trial punishment. She is not having any criminal antecedants. The petitioner is the permanent resident of the address mentioned in the cause title to the petition and is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition.
4. Per contra, learned High Court Government Pleader opposing the petition submitted that serious allegations are made against the petitioner and other accused for having committed the offences. Commercial quantity of LSD strips, Cocaine, Amphetamine, Hashish and ganja were recovered from the room which was in the occupation of the petitioner while she was along with accused No.1. He is said to be her boyfriend. Since commercial quantity of contraband was seized from the conscious possession of the petitioner, bar under Section 37(1)(b)(ii) of NDPS Act comes into operation. Hence, -4- CRL.P No. 12172 of 2022 the petitioner is not entitled to be enlarged on bail. He placed reliance on the decision in Superintendent, Narcotics Central Bureau, Chennai Vs R Paulswamy1, State of M.P Vs Kajad2 and State of Punjab Vs Baldev Singh3, in support of his contention.
5. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?"
My answer to the above point is in 'Negative' for the following:
REASONS
6. The allegations made against the petitioner is of serious nature. It is stated that she was in occupation of the room where accused Nos.1 and 2 were also residing. When she was accompanied with accused No.1, search was held by the Intelligence Officer. It is said that, LSD strips weighing 0.29 1 (2000) 9 SCC 549 2 (2001) 7 SCC 673 3 AIR 1999 SC 2378 -5- CRL.P No. 12172 of 2022 grams, cocaine weighing 2.22 grams, amphetamine weighing 2.14 grams, hashish weighing 6.18 grams and ganja weighing 0.85 grams were seized under the mahazar. The accused was apprehended. It is not in dispute that the investigation is still in progress. As per Sl.No.133 in the Notification appended to the Act, 0.1 grams of LSD is considered to be of commercial quantity. Therefore, the contraband said to have been seized from the room, which was in the occupation of accused No.2 was of commercial quantity.
7. When it is alleged that the accused was in possession of commercial quantity of contraband, Section 37(1)(b)(ii) of NDPS Act bars release on bail, unless twin conditions stated therein are satisfied. It is to be satisfied that there are reasonable grounds for believing that she is not guilty of such offence and that she is not likely to commit any offence while on bail. The material on record prima facie discloses that commercial quantity of contraband was seized from the conscious possession of the petitioner. Under such circumstances, bar under Section 37(1)(b)(ii) of the NDPS Act operates. I do not find any reason to form an opinion that the -6- CRL.P No. 12172 of 2022 accused is not guilty of such offences or that she may not commit any offence while on bail.
8. In Kajad (supra), the Hon'ble Apex Court considering similar situation where commercial quantity of contraband is involved, categorically held that negation of bail is the rule and its grant is an exception under Section 37(1)(b)(ii) of NDPS Act.
9. In Baldev Singh (supra), the Hon'ble Apex Court highlighted that the drug abuse is a social malady and observed at para 4 as under:
"4. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that during trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick -7- CRL.P No. 12172 of 2022 society and harmful culture. Anti-drug justice is a criminal dimension of social justice."
10. The legislature in its wisdom enacted Section 37(1)(b)(ii) of NDPS Act to refuse bail unless reasonable grounds are made for believing that the accused is not guilty of such offences. Ofcourse, opinion with regard to his innocence need not have to be formed at the stage of deciding the application for bail. However, there must be some reasonable grounds for believing that she is not guilty and that she is not likely to commit any offence while on bail. Unless these twin conditions are satisfied, the petitioner is not entitled to be enlarged on bail.
11. The other contention raised by the learned counsel for the petitioner is that there is non compliance of the procedure as contemplated under Section 41(2) of NDPS Act. The material that are placed before the Court prima facie does not constitute that there non compliance of any such procedure. The Hon'ble Apex Court in Paulswamy (supra), considered similar situation and held that it is unfortunate to pre-judge non compliance of the procedure as contemplated -8- CRL.P No. 12172 of 2022 under the Act before giving an opportunity to the prosecution to establish the same during trial. It is also suggested that taking into consideration the factual presumption in law that official act have been regularly performed and such presumption will have to be rebutted only during the trial. Moreover, the Hon'ble Apex Court in para 6 held as under:
"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding -9- CRL.P No. 12172 of 2022 the compliance with the formalities mentioned in those two sections."
12. The material placed on record prima facie discloses that the petitioner was in occupation of the room in question along with accused No.1 and they were in possession of commercial quantity of contraband. The investigation is still in progress. From the materials on record, it cannot be concluded that the Investigating Officer has not followed the procedure as contemplated under law. Therefore, I am of the opinion that the petitioner is not entitled to be enlarged on bail.
13. Accordingly, I answer the above point in Negative and proceed to pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE *bgn/-