Karnataka High Court
Union Of India vs Thaha Ummer K S on 6 June, 2024
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NC: 2024:KHC:19619
CRL.P No. 3291 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 3291 OF 2024
BETWEEN:
1. UNION OF INDIA
NARCOTICS CONTROL BUREAU
BENGALURU ZONAL UNIT
BENGALURU - 560 063
REPRESENTED BY INTELLIGENCE OFFICER
...PETITIONER
(BY SRI. RAJASHEKAR S., Sr. CENTRAL GOVERNMENT COUNSEL)
Digitally signed
by BHARATHI S AND:
Location: HIGH
COURT OF
KARNATAKA 1. THAHA UMMER K S
S/O UMMER
AGED ABOUT 36 YEARS
RESIDING AT 12/3A
PADIKKA MANNILE HOUSE
KOOTTILANGADI
MALAPPURAM KERALA - 676 506
...RESPONDENT
(BY SRI. AKHILESH B.,ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2)
CR.PC PRAYING TO SET ASIDE THE ORDER DATED 02.12.2023
PASSED IN CRIMINAL MISC.NO.736/2023 IN CR.NO.48/1/11/2022
OF NCB, BENGALURU REGISTERED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 8(C) R/W 22(B), 23(C), 27-A, 28 AND 29 OF NDPS
ACT, PENDING IN SPL.C.C.NO.490/2023, ON THE FILE OF XXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE
(NDPS), BENGALURU AND THEREBY CANCEL THE BAIL GRANTED TO
HIM AND GRANT SUCH OTHER AND FURTHER RELIEF'S AS THIS
HONBLE COURT DEEMS FIT AND PROPER UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE.
THIS CRIMINAL PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
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NC: 2024:KHC:19619
CRL.P No. 3291 of 2024
ORDER
The petitioner - complainant is before this Court seeking cancellation of bail under Section 439(2) of Cr.P.C. in Crime No.48/1/11/2022 of NCB, pending in Spl C.C.No. 490 of 2023 on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, registered for the offences punishable under Sections 8(c) read with Sections 22(b), 23(c), 27-A, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').
2. Heard Sri. Rajashekar S, learned Senior Central Government Counsel for the petitioner and Sri. Akhilesh B, learned counsel for respondent. Perused the materials on record.
3. Learned Senior Central Government Counsel for the petitioner submitted that the respondent is arrayed as accused No.1. Serious allegations are made for having committed the offence punishable under Section 8(c) read with Sections 22(b), 23(c), 27-A, 28 and 29 of NDPS Act. On credible information, a parcel was found in Kempegowda International Airport, Bengaluru, containing 357 grams of Clonazepam tablet, which -3- NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 is the psychotropic substance of commercial quantity. The parcel was booked to be exported to Saudi Arabia in the name of accused No.2. On interrogation of accused No.2, it was revealed that a parcel was booked by respondent - accused No.1 by misusing his pharmaceutical license. Later, he was apprehended on 25.08.2022 and subjected to interrogation. Initially, he sought for regular bail. The Special Court rejected his prayer.
4. The respondent has approached this Court by filing Criminal Petition No.9450 of 2022, which came to be dismissed on merits. Respondent filed an application seeking interim bail on health grounds. Vide order dated 30.03.2023, interim bail for a period of three months was granted. After lapse of three months, interim bail was extended from time to time. Respondent has filed yet another application seeking grant of interim bail. As per document No.5 filed on 24.06.2023, specific order was passed that the respondent is enlarged on bail for a period of three months for the purpose of taking treatment for his physical ailment. Ignoring all these facts, the Special Court has passed the order dated 02.12.2023 granting regular bail and therefore, the petitioner is before this Court. -4-
NC: 2024:KHC:19619 CRL.P No. 3291 of 2024
5. Learned Senior Central Government Counsel submitted that there was no prayer for regular bail and the prayer was for interim bail. The Special Court could not have granted regular bail, ignoring the seriousness of offences and also in view of the bar for grant of bail under the special enactment, that too, when such prayer for regular bail was already rejected by this Court. Serious allegations of misusing the pharmaceutical license by the respondent is made and during investigation, it was revealed that 27 such suspicious exports were made by him. Three criminal cases were registered against the respondent under various provisions of IPC. Of course, it was ended in acquittal. Even medical records produced by the respondent shows that he was advised for taking regular follow up and apart from that, there are no compelling reasons for releasing the respondent on bail.
6. Learned Senior Central Government Counsel placed reliance on the decisions in Gurcharan Singh and Others Vs State (Delhi Administration) and Raj Kumar Sharma and Otghers Vs State (Delhi Administration)1 and Puran Vs Rambilas and another with Shekhar and another Vs Sate 1 (1978) 1 SCC 118 -5- NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 of Maharasthra and another2, seeking cancellation of bail, on the ground that the order in question was passed by the Special Court without application of mind. Hence, he prays for allowing the petition.
7. Per contra, learned counsel for the respondent opposing the petition submitted that the respondent had in fact filed the application for grant of regular bail and the same was considered by the Special Court. In the first sentence in the order dated 02.12.2023 by mistake it is mentioned as prayer for interim bail. On going through the order, the submissions made by the learned counsel for the accused as well as prosecution, makes it clear that it was the application for grant of regular bail and not interim bail. The Special Court considered all the facts of the case and formed an opinion that the respondent is not required to be detained in custody and granted regular bail. There are no illegality or perversity in the order. Therefore, he prays for dismissal of the petition.
8. Learned counsel further submitted that the Special Court has considered the medical condition of the respondent and passed the order enlarging him on bail. There are no 2 (2001) 6 SCC 338 -6- NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 illegality in the order. Therefore, he prays for dismissal of the petition.
9. 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 has made out any ground for cancellation of bail under Section 439(2) of Cr.P.C.?"
My answer to the above point is in 'Affirmative' for the following:
REASONS
10. Even though, learned Senior Central Government Counsel for the petitioner submitted that the Special Court passed an order granting bail on the application seeking only interim bail, it is later found that the respondent had filed an application seeking regular bail and the same was considered by the Court. The primary objection raised by the learned Senior Central Government Counsel in that regard cannot be accepted and accordingly, the same is rejected.
11. The allegations made against the respondent is of very serious nature. It is stated that, he is the licensed -7- NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 pharmacist and it was found that he has managed to send a parcel containing 357 grams of Clonazepam tablet, which is a psychotropic substance of commercial quantity, to Saudhi Arabia in the name of accused No.2. Admittedly, accused No.2 is working under accused No.1. But it is accused No.1, who is pharmaceutical license holder. When it is alleged that the accused has dealt with commercial quantity of Clonzepam, Section 37 of NDPS Act would come into operation and the Court before releasing the accused on bail, should record its satisfaction regarding the twin conditions referred to in Section 37(1)(b)(ii) of NDPS Act. On going through the order impugned, the Court has not recorded such satisfaction in the entire order, but its main focus was on the medical record furnished by the learned counsel for the respondent.
12. The copy of the discharge summary produced by the learned counsel for the respondent was issued by Malabar Institute of Medical Sciences Limited, Kottakal, Malappuram, Kerala. It refers to admission of the respondent in the hospital on 17.04.2022 and he was discharged on 19.04.2022 on diagnosing left VUJ calculus, left renal calculus and persistent colic. However, at the time of discharge from the hospital, his -8- NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 condition was stable and it was recommended to review his condition after three weeks.
13. The other document relied on by the respondent to contend that his health condition is so serious to get released on bail is a medical slip issued by Aster MIMS Hospital, Kottakal dated 18.07.2023, according to which, he was diagnosed with Rheumatic Heart Disease, mild mitral steno sis with mild MR, also has been advised medication for diabetes Miletus, hypertension and rheumatic heart disease and DJ stent was also placed in heart due to Rheumatice Heart Disease and he was advised regular follow ups and Echo studies. No other significant medical records are placed before this Court to form an opinion that the respondent could be enlarged on bail on medical grounds. The medical records that are placed before this Court do not give an impression that there is any compelling reason to enlarge the accused on bail or to form an opinion that he is in such a serious condition and he is to be enlarged on bail. The fact that the respondent is granted interim bail from time to time and the respondent had appeared before the Court and co-operated with the investigation has weighed largely with the Special Court to pass -9- NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 the order grating regular bail even after noting that the commercial quantity of Clonazepam was seized and there are strong prima facie materials.
14. Apart from these two documents, there are no other medical documents that are placed before the Court. The discharge summary referred to above admittedly refers to the period much earlier to the date of incident. The prescription slip referred to above do not help the Court in forming an opinion which compels release of accused on medical grounds.
15. It is pertinent to note that even though the Trial Court formed an opinion that considering the health condition of the respondent, he is to be enlarged on bail, there is no reference to any particular medical record that has influenced the Court to form such opinion.
16. Learned counsel for the respondent submits that some more documents were taken into consideration by the Special Court to form such specific opinion, but nothing has been placed before the Court in this regard. Under such circumstances, I am of the opinion that the Special Court has committed an error in passing the order impugned to enlarge
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NC: 2024:KHC:19619 CRL.P No. 3291 of 2024 the respondent on bail solely on medical grounds, when no such materials are made available before this Court. The Court has also not recorded its satisfaction about the requirement of Section 37(1)(b)(ii) of NDPS Act, except saying that, 'no doubt the contraband articles seized in this case is commercial quantity, but on considering the health condition of the petitioner and since the investigation of the case is concluded, the petitioner is to be enlarged on bail'. Since the Court has not taken into consideration the relevant materials on record and the seriousness of the offences, in light of the bar contained under Section 37(1)(b)(ii) of NDPS Act to release the accused on bail, I am of the opinion that it is a fit case to recall the order canceling the bail and request the Special Court to consider the materials on record once again, since it is the specific submission made by the learned counsel for the respondent that the Court has considered other medical records which shows the seriousness of the health condition of the respondent.
17. Accordingly, I answer the above point in the affirmative and proceed to pass the following:
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NC: 2024:KHC:19619
CRL.P No. 3291 of 2024
ORDER
(i) The petition is allowed.
(ii) The order dated 02.12.2023 passed in
Crl.Misc.No.736/2023 in Crime No.48/1/11/2022 of NCB,
Bengaluru, is hereby set aside and the bail granted to the respondent is cancelled and he is directed to surrender before the Special Court within ten (10) days from today, failing which, the Special Court is at liberty to secure his presence, with due process of law.
(iii) The Special Court is required to consider the application once again and it may give its findings afresh, in light of the discussions held above. It is made clear that the observations made above shall not come in the way for the Special Court while deciding the matter afresh.
Registry is directed to communicate the order to the Special Court for information and for necessary action.
Sd/-
JUDGE BGN & SPV, List No.: 1 Sl No.: 1