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2022 DIGILAW 204 (KAR)

State of Karnataka v. Ravikumar

2022-02-15

H.P.SANDESH

body2022
JUDGMENT : H.P. SandeshThis petition is filed under Sec. 439(2) of Cr.P.C., praying to set aside the order dtd. 19/2/2021 passed in Crl. Misc. No. 1637/2021 (Crime No. 13/2021 of J.P. Nagar Police Station) by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru and cancel the order of bail for the offences punishable under Ss. 22(C) and 27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short). 2. Heard the learned High Court Government Pleader appearing for the petitioner/State and the learned counsel appearing for the respondent. 3. The factual matrix of the case of the prosecution is that on 31/1/2021 at about 12:05 a.m., the complainant - police have received a credible information that three persons were staying in Room No. 303 at Aric Hotel situated at 15th Cross, J.P. Nagar, Bengaluru and they are involved in consumption and sale of narcotic drugs like cocaine and other products and are making illegal gain and living a luxurious life. Based on this information, a raid was conducted. This petitioner and other two persons were found in the room and seized 2.93 grams of cocaine, 15 grams of ecstasy tablets, four mobile phones and a cash of Rs.96,150.00 derived from sale of narcotic drugs and four cheques from the accused persons. The panchanama was drawn; accused persons were arrested and produced before the Magistrate Court. 4. The respondent is accused No. 3, who had filed the bail petition before the Trial Court in Crl. Misc. No. 1637/2021. The Trial Judge while exercising the discretion assigned the reasons in paragraph No. 9 that the quantity seized is intermediate quantity and the offence is punishable upto 10 years RI and fine which may extend to Rs.1.00 lakh. He is not required for further investigation. The prosecution has not made out prima facie case against the petitioner to believe that he is involved in the alleged offence. It is also observed that the petitioner is a permanent resident as shown in the cause title and he is in judicial custody since long time and ordered to release the respondent. 5. The prosecution has not made out prima facie case against the petitioner to believe that he is involved in the alleged offence. It is also observed that the petitioner is a permanent resident as shown in the cause title and he is in judicial custody since long time and ordered to release the respondent. 5. The learned High Court Government Pleader appearing for the petitioner-State would submit that the learned trial Judge while exercising the discretion not applied his judicious mind and the reasoning given by the Trial Court all are against the statute and 15 grams of ecstasy tablets were seized. Apart from that, the reasoning given is intermediate quantity, though it is a commercial quantity. The Trial Court averred that the prosecution has not made out any prima facie case against the petitioner. The learned High Court Government Pleader also brought to the notice of this Court that this petitioner was apprehended on 31/1/2021 and an order was passed within 20 days even when the commercial quantity of manufactured drug was seized. Hence, the trial judge has not applied his judicious mind while exercising the discretion. 6. Per contra, the learned counsel for the respondent would submit that the learned Magistrate while granting bail applied his judicious mind and invoked Sec. 439 of Cr.P.C., since he has been in custody and also taking into note of nature of the offence, involvement of the petitioner and quantum of seizure of the manufactured drug and no reasons are made out by the State to invoke Sec. 439(2) of Cr.P.C. 7. Having considered the submissions of the respective Counsel and also on perusal of the material available on record, the case of the prosecution is that on search they found 2.93 grams of cocaine, 15 grams of ecstasy tablets, four mobile phones and a cash of Rs.96,150.00 and the same were seized. The trial Judge while exercising the discretion given the reasons that it is the intermediate quantity and punishable upto 10 years RI and fine which may extend to Rs.1.00 lakh. The quantum of ecstasy tablets are manufactured drug and not the narcotic substances and if it is more than 10 grams, the same is commercial quantity. But the Trial Court comes to the conclusion that it is the intermediate quantity and the same is not an intermediate quantity. The quantum of ecstasy tablets are manufactured drug and not the narcotic substances and if it is more than 10 grams, the same is commercial quantity. But the Trial Court comes to the conclusion that it is the intermediate quantity and the same is not an intermediate quantity. The reasoning given by the Trial Court is that he is not required for further investigation and he was apprehended on 31/1/2021. The Trial Court comes to the conclusion that he is not required for further investigation and the reasoning given by the Trial Court is not applying the judicious process in exercising the judicial discretion and granted bail within 20 days as not required for further investigation. 8. It is also important to note that the Trial Court has given the reasoning that the prosecution has not made out a prima facie case as against the petitioner to believe that he is involved in the alleged offence and fails to take note of the provisions of Sec. 37 of the NDPS Act, wherein, categorically says that it is the accused, he has to make out a reason that he has not involved in the case. But apparently, the Trial Court has given the reasoning that the prosecution has not made out the prima facie case and the very approach of the Trial Court is erroneous. The Trial Court also given the reasoning that the petitioner is in judicial custody since long time. On what basis, the Trial Court comes to the conclusion that he is in custody since long back when only discretion is exercised within 20 days. The reason given by the Trial Court is against the material on record. Totally, the Trial Court has not applied its judicious mind or applied judicious process in exercising the discretion within a span of 20 days. When the commercial quantity of manufactured drug was seized ought not to have exercised the discretion. The Trial Court fails to take note of the special enactment brought into force. When the IPC offences are inadequate to combat the menace in the Society with regard to trafficking of narcotic drug and the said offence is against the society at large and the same is not considered by the Trial Court, instead of a callous reason given and not applied the mind judiciously while exercising the discretion. When the IPC offences are inadequate to combat the menace in the Society with regard to trafficking of narcotic drug and the said offence is against the society at large and the same is not considered by the Trial Court, instead of a callous reason given and not applied the mind judiciously while exercising the discretion. Hence, the order passed by the Trial Court is erroneous and failed to take note of the very provision of Sec. 37 of NDPS Act. Hence, it requires an interference of this Court by exercising the powers under Sec. 439(2) of Cr.P.C., and the order requires to be set aside. 9. In view of the discussions made above, I pass the following: ORDER (i) The Petition is allowed. (ii) The impugned order dtd. 19/2/2021 passed in Crl. Misc. No. 1637/2021 (Crime No. 13/2021 of J.P. Nagar Police Station) by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru for the offences punishable under Ss. 22(C) and 27(A) of the NDPS Act, is hereby set aside. (iii) Consequently, the Trial Court is directed to secure the accused and keep him in custody under Sec. 439(2) of Cr.P.C.