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2022 DIGILAW 281 (KAR)

Vidupanakallu Galeppa v. State of Karnataka

2022-03-02

P.N.DESAI

body2022
JUDGMENT P.N. Desai, J. - Heard the learned counsel for the petitioner and the learned HCGP for the respondent State. 2. This petition is filed under section 439 of the Code of Criminal Procedure, 1973, seeking to enlarge the petitioner, who is arraigned as accused no. 1, on bail in Crime No. 355/2021 of Rural Police Station, Ballari, registered for the offences punishable under sections 20 and (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short). 3. It is the allegation of prosecution that this accused being the owner of land in Sy. No. 197/A, situated at Kammarachedu village, is said to have grown cannabis plants in his land illegally between cotton crop. After getting information, the Investigating Officer along with panchas visited the land and found that in between cotton crop about 220 wet ganja plants were grown which were weighing 121.75 kilograms which include roots, trunk, leaves and flowers. Its approximate value is Rs. 2,43,500/-. The same was seized in the presence of panchas along with mud for sample and the accused was arrested. On the basis of the same, the said crime number was registered against accused nos. 1 and 2. The accused was produced before the Court who filed an application under section 439 of Cr.P.C. before the Court of Prl. District and Sessions and Special Judge, Ballari, which came to be rejected by order dated 11.1.2022. Aggrieved by the same, the present petition is filed. 4. The learned counsel for the petitioner argued that the petitioner is innocent of the offence alleged against him. The complainant has not followed the mandatory provisions of the Act, before conducting raid and panchanama. The alleged quantity of 220 wet ganja plants were seized including their roots, trunk, leaves and flowers, which according to the prosecution weighing 121.75 kilograms. The said complaint was filed at the instigation of persons who are on inimical terms of the accused. The allegation does not attract the ingredients of the offence. On the other hand, the petitioner is a poor agriculturist and having permanent residence in the said village. He is having movable and immovable property and is ready to abide by any conditions that may be imposed by the Court. The allegation does not attract the ingredients of the offence. On the other hand, the petitioner is a poor agriculturist and having permanent residence in the said village. He is having movable and immovable property and is ready to abide by any conditions that may be imposed by the Court. It is further contended, petitioner is aged about 56 years and in view of the spreading of COVID-2019 in public and jails, there are chances of getting infection. So he prayed to allow the petition. 5. Against that, the learned HCGP opposed the bail application and contended that accused no. 2 is still not traced. The allegation is that the petitioner was purchasing ganja seeds from accused no. 2. Therefore, at this stage if the petitioner is released on bail, it will certainly cause hindrance to the investigation and there is a chance of the petitioner being abscond as he is originally from Andhra Pradesh. He may tamper the prosecution witnesses. With these main contentions the learned HCGP prays to reject the bail petition. 6. I have perused the material placed before the Court. It is evident that the offences alleged are under section 20(a) and (b) of the Act. The said offences are not punishable with death or imprisonment for life. It is also evident that according to the prosecution the said ganja plants were grown in between cotton crop in the land of the petitioner. The total ganja seized is weighing 121.75 kilograms valued at Rs. 2,43,500/-. The learned counsel brought to the notice of the Court definition of 'cannabis' as defined under Section 2(iii) (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom. 7. Here what is seized by the police is, the trees consisting of the roots, leaves, stems, flowers. Therefore total weight of the ganja cannot be said as commercial quantity at this stage. 8. 7. Here what is seized by the police is, the trees consisting of the roots, leaves, stems, flowers. Therefore total weight of the ganja cannot be said as commercial quantity at this stage. 8. The petitioner has denied the allegation and stated that he is innocent and has not committed any offence. It is not clear what was the exact quantity of ganja. No records were produced to show that the petitioner has criminal antecedents. It is stated that the petitioner is resident of Ballari. Though it is stated that he is from Andhra Pradesh, may be he is in the border of the Karnataka State. But he has undertaken to co-operate with investigation. Simply because accused no. 2 is not traced is not a ground to reject the petition. On the other hand, the prosecution has to prove that it is the petitioner who has grown ganja trees in his land and requires trial. 9. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consideration, (1) the nature and seriousness of the offence; (2) character of the accused; (3) circumstances which are peculiar to accused; (4) reasonable probabilities of presence of the accused not being secured at trial; (5) reasonable apprehension of witnesses being tampered with; and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence. 10. The apprehension of the prosecution can be meted out by imposing reasonable conditions on the petitioner, as he has undertaken to co-operate with the investigation. 11. Therefore, considering the facts and circumstances of the case, in my considered view the petitioner has made out sufficient ground to allow the petition. Accordingly, I proceed to pass the following: ORDER The criminal petition filed under section 439 of Cr.P.C. is allowed. The petitioner/accused no. 1 in Crime No. 355/2021 of Rural Police Station, Ballari, pending on the file of Prl. District and Sessions and Special Judge, Ballari, registered for the offences punishable under sections 20(a) and (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, shall be released on bail, subject to the following conditions. i) The petitioner/accused no. 1 shall execute a self bond for Rs. District and Sessions and Special Judge, Ballari, registered for the offences punishable under sections 20(a) and (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, shall be released on bail, subject to the following conditions. i) The petitioner/accused no. 1 shall execute a self bond for Rs. 1,00,000/- with a surety for the like sum, to the satisfaction of the trial Court. ii) The petitioner shall co-operate with the Investigating Officer for investigation in this case. iii) The petitioner shall not try to tamper the prosecution witnesses directly or indirectly. iv) The petitioner shall furnish proof of his residential correct address and shall inform the Court/Investigating Officer if there is any change in the address. v) The petitioner shall mark his attendance before the jurisdictional Police/SHO once in 15 days, i.e., on alternative Sunday between 10.00 a.m. to 4.00 p.m. for a period of three months or till filing of the charge sheet whichever is earlier. vi) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of trial Court. vii) The petitioner shall not involve in any criminal activities and shall not commit similar offences. viii) The petitioner shall appear before the Court on all dates of hearing without fail as and when directed. In case if any of the condition is violated, the prosecution is at liberty to move application for cancellation of bail.