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2022 DIGILAW 962 (KAR)

Jini v. State Through Gandhi Gunj Police Station

2022-07-27

P.N.DESAI

body2022
JUDGMENT 1. This petition is filed under Section 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to enlarge the petitioners, who are arraigned as accused No.1 and 2, on bail in Crime No.83/2022 of Gandhi Gunj Police Station, Bidar, registered for the offence punishable under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1984 ('NDPS the Act' for short), on the file of Prl. District and Sessions Judge at Bidar. 2. It is the case of the prosecution that on credible information received by the complainant police officer that on 09.06.2022 three women persons in Irani Colony near the Bidar Railway Station, were selling the Ganja, the Police Sub Inspector taking permission from his higher authorities, along with Tahasildar, panchaas and police have proceeded there and searched for the accused persons. At that time they found that three women persons were selling the Ganja. Thereafter, the police officers arrested them. On enquiry they disclosed their names. When the police officials searched accused persons, they recovered cash of Rs.1,500/- and 05 kg. 60 grams of Ganja worth of Rs.10,000/- were also seized. Thereafter, the accused persons were arrested and FIR report submitted the concerned Court. Their bail petition under Section 439 of Cr.P.C. came to be rejected by the Principal District and Sessions Judge, at Bidar. Hence, the petitioners have filed this petition. 3. Heard Sri. Nandkishore Boob, learned counsel for the petitioners and the learned High Court Government Pleader for the respondent - State. 4. Learned counsel for the petitioners argued that the seizures is hit by mandatory provision of Section 50 of the NDPS Act. There is no material to show that petitioners were asked about their consent as whether they intended to be searched in the presence of Gazetted Officer or not. There is no such voluntary statement nor the Investigating Officer ask them in this regard. The quantity of Ganja is less then commercial quantity. Therefore, Bar under Section 37 of the NDPS Act is not applicable. The ingredient of Section 20 (b) of the NDPS Act is also not applicable. The alleged offence is not punishable with death or imprisonment for life. Accused No.4 is already released on bail. The petitioners are married women and they have children. The petitioners are ready to abide by any conditions that may be imposed by this Court and ready to offer sureties. The alleged offence is not punishable with death or imprisonment for life. Accused No.4 is already released on bail. The petitioners are married women and they have children. The petitioners are ready to abide by any conditions that may be imposed by this Court and ready to offer sureties. Hence, learned counsel for the petitioners prays to allow the petition. 5. Against this, learned High Court Government Pleader filed objections and argued that the accused persons are involved in the offence of illegally transportation and selling Ganja. If they are released on bail, they may abscond and they may not be appear before the Court. The investigation is still not completed. They may tamper the prosecution witnesses. Hence, he prays to reject the petition. 6. I have perused the material produced before the Court. The allegation is that these petitioners were selling Ganja. Further the prosecution has not produced material to show that they were asked about search by Gazetted Officer. The objections of the learned High Court Government Pleader does not disclose that these petitioners are involved in commission of such offence earlier and they are habitual offender. There are no such history of previous such act or not criminal activities as alleged against them. Admittedly, they are the women. The alleged offence is not punishable with death or life imprisonment. Therefore, looking into the allegations and quantity of Ganja and nature of objections, in my opinion the petitioners have made out a ground for grant of bail. 7. 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. 8. Therefore, considering the facts and circumstances of the case and in view of above principle, in my considered view the petitioners has made out sufficient ground to allow the petition. 9. 8. Therefore, considering the facts and circumstances of the case and in view of above principle, in my considered view the petitioners has made out sufficient ground to allow the petition. 9. The apprehension of the prosecution can be meted out by imposing reasonable conditions on the petitioners, as he has undertaken to co-operate with the investigation and furnish sureties. Accordingly, I proceed to pass the following: ORDER The criminal petition filed under Section 439 of Cr.P.C. is allowed. The petitioner No.1 - accused No.1 Sri. Jini w/o Younus Jafri and petitioner No.2 - accused No.2 Heena w/o Abdulla Panjabi Pathan in Crime No.83/2022 of Gandhi Gunj Police Station, Bidar, on the file of Prl. District and Sessions Judge, at Bidar, registered for the offence punishable under Section 20 (b) of NDPS Act, shall be released on bail, subject to the following conditions. i) The petitioners shall execute a self bond for Rs.1,00,000/- each with two sureties, in which being local surety, for the like sum to the satisfaction of the Trial Court. ii) The petitioners shall not try to tamper the prosecution witnesses directly  or indirectly. iii) The petitioners shall appear before the Court on all dates of hearing without fail as and when directed. iv) The petitioners shall mark their 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 and shall co-operate in the investigation. v) The petitioners shall not involve in any criminal activities and shall not commit similar offences. vi) The petitioners shall furnish proof of their residential correct address to the investigating officer and shall inform the Court/Investigating Officer if there is any change in the address. vii) The petitioners shall not leave the jurisdiction of the Trial Court without prior permission of Trial Court. In case if any of the condition is violated, the prosecution is at liberty to move application for cancellation of bail.