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2025 DIGILAW 875 (KAR)

Issa Toure, S/O Late Andrew v. State By Karnataka

2025-07-10

S.VISHWAJITH SHETTY

body2025
ORDER : S. VISHWAJITH SHETTY, J. Accused No.1 in Spl.C.C.No.717/2024 pending before the Court of XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru arising out of Crime No.372/2023 registered by Govindapura Police Station, Bengaluru City for the offences punishable under Sections 8(c) & 22(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS' Act) is before this Court seeking regular bail. 2. Heard the learned counsel appearing for the parties. 3. FIR in Crime No.372/2023 was registered by Govindapura Police Station, Bengaluru City against the petitioner herein for the aforesaid offences on the basis of first information dated 30.12.2023 received from Sri Anandkumar, Police Sub Inspector, attached to Govindapura Police Station. During the course of investigation, the petitioner was arrested and remanded to judicial custody on 30.12.2023. 4. The bail application filed by the petitioner before the Trial Court was rejected. Therefore, he had earlier approached this Court in Crl.P.No.12814/2024, which was dismissed as withdrawn with liberty to the petitioner to file a fresh bail application before the Sessions Court for enlarging him on medical grounds. It is under these circumstances, the petitioner had filed a fresh bail application before the jurisdictional Sessions Court in Crl.Misc.No.1161/2025, which was rejected on 07.05.2025. Therefore, he is before this Court in this successive bail application. 5. Learned counsel for the petitioner submits that the seized contraband article was weighed in the present case along with cloth cover and total weight of the contraband article is 54 grams. The contraband article is not separately weighed and therefore exact quantity of contraband article has not been stated. In the present case, the petitioner, who has no other criminal antecedents is in custody for the last more than 1½ years. Trial in the case is yet to commence. Accordingly, he prays to allow the petition. 6. Per contra, learned HCGP has opposed the petition. She submits that, contraband article seized in the present case is of commercial quantity. The petitioner is a foreigner and in the event he is enlarged on bail, it would be difficult to secure his presence. Accordingly, she prays to dismiss the petition. 7. Accordingly, he prays to allow the petition. 6. Per contra, learned HCGP has opposed the petition. She submits that, contraband article seized in the present case is of commercial quantity. The petitioner is a foreigner and in the event he is enlarged on bail, it would be difficult to secure his presence. Accordingly, she prays to dismiss the petition. 7. The first informant has stated in the typed first information dated 30.12.2023 that at about 16.10 hours on 30.12.2023, when he was in the Police Station he had received credible information about a person selling contraband article within the jurisdiction of Govindapura Police Station. Immediately thereafter a raid was conducted to the alleged spot, where a person was allegedly making attempt to sell contraband article to the public. The petitioner, who was present at the alleged spot was apprehended and from his possession contraband article allegedly MDMA totally weighing 54 grams, which was found in a cover was recovered and seized under panchanama. The petitioner, who was arrested in the case was produced before the Court and remanded to judicial custody. Subsequently, after completing investigation, charge sheet has been filed against the petitioner for the aforesaid offences. 8. The material on record would go to show that, contraband article was found in a cover and the proviso under Section 52A of NDPS Act that was held before the jurisdictional Court of Magistrate would reflect that, contraband article was found in a cloth cover. Even the photographs taken during the course of inventory proceedings under Section 52A of NDPS Act would reveal that contraband article was packed in a cloth cover. Contraband article has been weighed along with a cloth cover at all the stages including at the stage of recovery proceedings and at the stage of inventory proceedings before the learned Magistrate. 9. The contraband article has not been weighted separately and on the other hand, it is weighed along with cloth cover. The seized contraband article has now tested positive to a drug known as 'Methamphetamine'. The quantity above 50 grams of 'Methamphetamine' is considered as commercial quantity under the relevant notification issued under the provisions of NDPS Act. 9. The contraband article has not been weighted separately and on the other hand, it is weighed along with cloth cover. The seized contraband article has now tested positive to a drug known as 'Methamphetamine'. The quantity above 50 grams of 'Methamphetamine' is considered as commercial quantity under the relevant notification issued under the provisions of NDPS Act. In the present case, since the contraband article has not been weighed separately, the exact weight of the contraband article cannot be made out and therefore the benefit of doubt with regard to weight of the contraband article has to be given to the accused/petitioner, who is in custody. In addition to the same, the material on record would go to show that, credible information was received by the first informant when he was in the Police Station. Therefore, compliance of Section 42 of the NDPS Act becomes necessary. The first information was required to reduce the credible information into writing in a prescribed register, before proceeding further and in the case on hand, such an exercise has not been done by the first informant. 10. In the case of Chitta Biswas Alias Subhas vs. State of West Bengal reported in 2020 SCC OnLine SC 1536 , the Hon'ble Supreme Court taking into consideration that the accused was in custody for a period of one year seven months and there was no sufficient progress in trial, without expressing any opinion on merits and demerits of the case, has granted regular bail to the accused. In the case of Nitish Adhikary alias Bapan vs. State of West Bengal reported in 2022 SCC OnLine SC 2068 in a case where charge sheet was filed for the offences punishable under Sections 21(c) and 37 of the NDPS Act and accused was in custody for a period of one year seven months, the Hon'ble Supreme Court has granted regular bail on the ground that trial is still in the preliminary stage, as only one witness was examined. 11. Undisputedly, the petitioner has no criminal antecedents. He is in custody for the last more than one year six months. Trial in the case is yet to commence. Therefore, I am of the opinion that the prayer made by the petitioner for grant of regular bail is required to be answered affirmatively subject to appropriate conditions. 12. 11. Undisputedly, the petitioner has no criminal antecedents. He is in custody for the last more than one year six months. Trial in the case is yet to commence. Therefore, I am of the opinion that the prayer made by the petitioner for grant of regular bail is required to be answered affirmatively subject to appropriate conditions. 12. Accordingly, the following: ORDER : The petitioner is directed to be enlarged on bail in Spl.C.C.No.717/2024 pending before the Court of XXXIII Addl. City Civil & Sessions Judge & Special Judge (NDPS), Bengaluru arising out of Crime No.372/2023 registered by Govindapura Police Station, Bengaluru City for the offences punishable under Sections 8(c) & 22(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985, subject to the following conditions: a) The petitioner shall execute a personal bond for a sum of Rs.1,00,000 (Rupees One Lakh only) with two sureties for the likesum, to the satisfaction of the jurisdictional Court; b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons; c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; d) The petitioner shall not involve in similar offences in future; e) The petitioner is directed to surrender his passport before the Trial Court and the same shall be subject to further orders of the Trial Court.