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2022 DIGILAW 580 (KAR)

Shyamil Y. v. State By Karnataka

2022-04-22

V.SRISHANANDA

body2022
JUDGMENT V. Srishananda, J. - Heard Sri.Hasmath Pasha, learned Senior Counsel for petitioner and learned High Court Government Pleader for respondent-State and perused the records. 2. Petition is filed under Section 439 of Cr.P.C with the following prayer: 'WHEREFORE, the Petitioner (a-4) most humbly prays that this Hon'ble Court may be pleased to enlarge him on bail in Crime No.178/2021 of Madivala Police Station, Bangalore City, which is pending on the file of Hon'ble XXXIII additional City Civil and Sessions Judge and Special Judge for NDPS cases, Bangalore, for offences under Sections 8(c), 22(c), 20(ii)(B) of NDPS act, on such terms and conditions, in the ends of justice.' 3. Police Officer by name Sri.Deepak R., files a complaint with Madivala Police Station, which was registered in Crime No.178/2021 on 04.12.2021 for the offences punishable under Section 8(c), 22(c), 20(ii)(B) of NDPS act. along with the complaint, a mahazar is produced. In the mahazar, it is found that there was a credible information to the head of the raid party that some people are dealing with narcotic drugs in a house bearing No.5, 4th floor with name Varaha Nilaya, 6th Cross, 3rd Main, Venkatapura, Koramangala, Bengaluru. accordingly, the head of the raid party formed a team comprising of sub-staff, panch witnesses and a gazetted officer. as per the information they raided the house and they found five persons by name Pranav, Shyamdas, anubhav, Shamil and Mohammed. On enquiry and search, the raid party found incriminating materials in the house including the NDPS substances. On further enquiry, each one of the occupant of the house, took their personal belongings and handed over the incriminating materials and narcotic drugs which was detailed out in the mahazar. as per the mahazar, from the custody of present petitioner-Shamil, the investigating agency is able to seize a mobile telephone manufactured by iphone company 12 Pro Model and 1 K.G 600 gms of Ganja from the bag belonging to the petitioner. 4. Thereafter, the raid party seized the incriminating materials, drafted mahazar and took them to custody and SHO of Madiwala arrested all the five persons and sent them to judicial custody. 5. Petitioner approached for grant of bail in Crl.Misc.No.1402/2022 and learned Special Judge by order dated 19.02.2022 rejected the prayer of the petitioner. Thereafter, petitioner is before this court. 6. Thereafter, the raid party seized the incriminating materials, drafted mahazar and took them to custody and SHO of Madiwala arrested all the five persons and sent them to judicial custody. 5. Petitioner approached for grant of bail in Crl.Misc.No.1402/2022 and learned Special Judge by order dated 19.02.2022 rejected the prayer of the petitioner. Thereafter, petitioner is before this court. 6. Reiterating the bail grounds learned Senior counsel Sri.Hasmath Pasha vehemently contended that from the custody of the petitioner seized Ganja is to the tune of 1 kg 600 gms as per the document of the prosecution namely mahazar and therefore Section 37 of NDPS would not be applicable to the case on hand and this Court can exercise power vested under Section 439 of Cr.P.C and grant bail. 7. Per contra, learned High Court Government Pleader opposes the bail petition stating that along with the Ganja the raid party is also able to seize other incriminating materials when all the seized articles are put together it amounts to commercial quantity and therefore Section 37 comes in the way of exercise of jurisdiction under Section 439 of Cr.P.C. and sought for rejection of the bail. 8. Perused the material on record. as could be seen from the mahazar, the raid party has individually seized the NDPS substances from each one of the accused. There is specific table drawn as to what is the substance that is seized from each of the accused persons. Therefore, prima facie the argument putforth on behalf of the prosecution that total quantity of the seized NDPS must be taken into account for the purpose of considering the bail application cannot be countenanced in law and having seized 1 kg 600 gms of Ganja from the petitioner, which is above the small quantity and below the commercial quantity, this court is of the considered opinion that this court can very well exercise its power vested in it under Section 439 Cr.P.C without resorting to Section 37 of the NDPS act. On such perusal of the material on record since Ganja is already seized from the petitioner and there is no antecedent with regard to petitioner is concerned and he is only a student, it can be presumed that it was meant for purpose of personal consumption and not for sale. 9. Be it what it may. On such perusal of the material on record since Ganja is already seized from the petitioner and there is no antecedent with regard to petitioner is concerned and he is only a student, it can be presumed that it was meant for purpose of personal consumption and not for sale. 9. Be it what it may. It was for the investigating agency and trial court to decide as to whether the particular offence has been committed by the petitioner or not only after full fledged trial. at this stage, this court is of the considered opinion that the continuation of the petitioner in judicial custody is no longer warranted having regard to the facts and circumstances of the case. The other apprehensions of the prosecution can be met with by imposing suitable and stringent conditions. 10. accordingly, this Court passes the following: ORDER (i) Petition is allowed. (ii) Petitioner shall be enlarged on bail on executing a personal bond for a sum of Rs.2,00,000/-with two local sureties for the likesum. (iii) Petitioner shall not directly or indirectly hamper the investigation process or tamper the prosecution witnesses. (iv) Petitioner shall mark his attendance before the investigating officer every alternative Sunday between 10 a.m. and 2 p.m. till the final report is filed. (v) Petitioner shall attend the court regularly. (vi) Petitioner shall not leave the jurisdiction of the Bengaluru District without prior permission. Violation of any one of the conditions would entitle the prosecution to seek for cancellation of the bail. Ordered accordingly.