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2020 DIGILAW 2334 (KAR)

Irfan Ali v. State of Karnataka

2020-12-08

MOHAMMAD NAWAZ

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JUDGMENT : MOHAMMAD NAWAZ, J. 1. This petition is filed under Section 439 of Cr.P.C., seeking to enlarge petitioner/accused No.2 on bail in Crime No.68/2020 of Rural Police Station, Hospet, Ballari registered for offences punishable under Section 20(b)(ii)(C) of NDPS Act, 1985. 2. Brief facts: On 18.09.2020 at about 6.30 a.m., the Police Inspector of Hospet Rural Police Station received a credible information that narcotic drug has been illegally stored in the house of one Smt. Chinnamma wife of Manjappa, situated near the water tank of Jolada Rashi Gudda Area and on receiving the said information, he secured his staff and panchas and along with gazetted officer went to the spot in the departmental vehicle and raided the house, wherein accused No.1 and the present petitioner-accused No.2 were present. On search of the house, they found 4 plastic bags containing a total quantity of 49 kgs. 700 gms. of ganja valued at Rs.9,94,004/- concealed under the bed in the kitchen. Samples were taken in separate bags and the ganja was seized under a mahazar. 3. It is alleged that accused No.1 was selling ganja since one year and she was securing ganja from accused Nos.2 to 4 and other persons. 4. The learned counsel for petitioner has contended that petitioner is innocent. He has not committed any offence much less the one now alleged against him. He submits that the petitioner was picked by the Police from Ballari and taken to the house from where ganja is alleged to have been seized. He submits that the petitioner is a handicapped person and therefore, he will be put to great hardship if not released on bail. He contends that the petitioner is not at all concerned about the contraband articles kept in the house which belongs to one Chinnamma and nothing has been seized from his possession and even if the entire case of the prosecution is accepted that ganja was seized from the house, it cannot be said that the petitioner had any knowledge about ganja being illegally stored in the said house. He submits that petitioner is a permanent resident of Cowl Bazaar in Ballari and he is ready to offer sufficient surety and accordingly seeks to allow the petition. Per contra, learned HCGP has vehemently contended that accused No.1 and the present petitioner were caught red-handed and a total quantity of 49 kgs. 700 gms. He submits that petitioner is a permanent resident of Cowl Bazaar in Ballari and he is ready to offer sufficient surety and accordingly seeks to allow the petition. Per contra, learned HCGP has vehemently contended that accused No.1 and the present petitioner were caught red-handed and a total quantity of 49 kgs. 700 gms. of ganja were seized which is a commercial quantity. The FSL report is awaited. The investigation is pending and the charge-sheet is yet to be filed. She contends that in the event of release of the petitioner, he may flee from justice and also commit similar offence. Accordingly, seeks to reject the petition. 5. The case of the prosecution is that the complainant received a credible information that narcotic drug was illegally stocked in the house of one Chinnamma, situated near water tank, Jolada Rashi Guddada Area. Immediately, he went to the spot along with his staff, panchas and gazetted officer and raided the house and seized about 49 kgs. 700 gms of dried ganja leaves, flower, powder, etc., which was concealed in 4 plastic bags beneath the bed in the kitchen. It is relevant to see that the said house belongs to one Chinnamma. It is not the case of prosecution that the petitioner is either the owner of the said house or that he was residing there. As contended by the learned counsel for petitioner, nothing has been seized from the possession of petitioner/accused No.2. A perusal of the mahazar go to show that when the raiding party searched the house, they discovered ganja concealed in 4 plastic bags kept under the bed in the kitchen. Whether it is the petitioner who has stocked the ganja in the said house or whether the petitioner has been involved in procuring and selling ganja is a matter which has to be established by the prosecution in due course. 6. The learned counsel for petitioner has relied on a decision of this Court rendered in Criminal Petition No. 1142/1991, in the case of Shankar Krishnasa Habib and Another vs. State of Karnataka, decided on 16.09.1991. Relevant portion of para 11 of the said decision is extracted hereunder: "11. .. 6. The learned counsel for petitioner has relied on a decision of this Court rendered in Criminal Petition No. 1142/1991, in the case of Shankar Krishnasa Habib and Another vs. State of Karnataka, decided on 16.09.1991. Relevant portion of para 11 of the said decision is extracted hereunder: "11. .. There is no explanation in the complaint or from the statements of other witnesses whether the house which was raided by the police on the date in question consisted of only these two persons or also the other members of the family. When prosecution says that the ganja was seized from the house of the petitioners, it could also have explained that who were in possession of ganja, whether these two petitioners or other persons who were staying in the house. Since all these questions are of doubtful in nature and whose correctness or veracity can be ascertained only when regular evidence is led in, I think this Court can hold at this stage what prosecution has not made out a case so as to connect the petitioners that they were in exclusive possession of ganja seized on 31.07.1991. Hence, the first ingredient of Section 30(b)(c) has been explained." 7. The facts of the case in the above decision has some similarity to the facts of the present case. Petitioner is a physically challenged person. A copy of the medical certificate of the petitioner has been placed on record by the learned counsel for petitioner. According to which, the petitioner has disability in his left lower limb to an extent of 50%. Petitioner has undertaken to offer sufficient surety and to abide by conditions that may be imposed by this Court. In the above facts and circumstances, petitioner has made out a ground to enlarge him on bail. Accordingly, the following: ORDER: Petition is allowed. Petitioner/accused No.2 in Crime No.68/2020 of Rural Police Station, Hospet, Ballari, shall be released on bail for offence punishable under Section 20(b)(ii)(C) of NDPS Act, 1985, subject to the following conditions: (i) Petitioner/accused No.2 shall execute a personal bond in a sum of Rs.50,000/- [Rupees Fifty Thousand Only] with two sureties for the likesum to the satisfaction of the jurisdictional Court (ii) Petitioner shall mark his attendance before the concerned Police Station on 1st and 15th day of every month, until filing of the charge-sheet and he shall co-operate with the investigation. (iii) Petitioner shall not in any manner tamper the prosecution witnesses either directly or indirectly. (iv) Petitioner shall furnish proof of his correct address and shall inform regarding change in address, if any. (v) Petitioner shall not leave the jurisdiction of the trial Court without prior permission of the learned Sessions Judge. (vi) Petitioner shall be regular in attending the Court proceedings.