Partly allowed

Rijesh Ravindran v. Union of India

Karnataka HC28 Jul 2021CRL.P/1305/2021

Case brief

AI extract

What is this about?

The High Court rejected bail for one petitioner accused where seized drug quantity exceeded commercial limits under the NDPS Act. Conversely, it granted bail to another petitioner who had no contraband seized against him, as allegations relied only on digital evidence from a co-accused, rendering Section 37 inapplicable.

What did the court decide?

Criminal Petition No.1305 of 2021 dismissed; Criminal Petition No.4159 of 2021 allowed with standard bail conditions including bond execution and device surrender.

Rijesh Ravindran Vs Union of India — Bail and Remand | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JULY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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CRIMINAL PETITION NO.1305 OF 2021

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CONNECTED WITH

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CRIMINAL PETITION NO.4159 OF 2021

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IN CRL.P. NO.1305 OF 2021:

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BETWEEN:

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RIJESH RAVINDRAN S/O. KOLLAIKAL RAVINDRAN, AGED ABOUT 37 YEARS, RESIDING AT NIKOO HOMES, TOWER NO.5, CHOKKANAHALLI VILLAGE, JAKKUR, BENGALURU NORTH TALUK – 560 064.

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N/O: PAVITHRAM, PATTIARAMBU, THIRUWIWAMALA, TRISSUR – 680 588.

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... PETITIONER

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(BY SRI HASHMATH PASHA, SENIOR COUNSEL, ALONG WITH SRI NASIR ALI, ADV.)

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AND:

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UNION OF INDIA NARCOTIC CONTROL BUREAU, BENGALURU ZONAL UNIT, BENGALURU – 560 063, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR.

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... RESPONDENT

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(BY SRI MADHUKAR DESHPANDE, SPL.P.P.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF THE CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.NCB FILE NO.48/1/14/2020/BZU REGISTERED BY THE NARCOTICS CONTROL BUREAU, BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER SECTION 8 READ WITH SECTIONS 22, 27A, 28 AND 29 OF THE NDPS ACT.

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IN CRL.P. NO.4159 OF 2021: BETWEEN:

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GERALD PRAVEEN KUMAR S/O. LATE IRUTHAYA RAJAN, AGED ABOUT 28 YEARS, RESIDENT OF NO.200/1A, 3^RD MAIN, 1^ST CROSS, BHUVANESHWARI NAGAR, C.V. RAMAN NAGAR POST, BENGALURU – 560 093.

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… PETITIONER

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(BY SRI ROHAN KOTHARI, ADV.)

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AND:

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UNION OF INDIA THROUGH THE NARCOTICS CONTROL BUREAU, BENGALURU ZONAL UNIT, 7/1 AND 2 PRIYANK VILLAS, KATTIGENEHALLI, BAGLUR MAIN ROAD, YELAHANKA, BENGALURU – 560 063, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001. ... RESPONDENT (BY SRI MADHUKAR DESHPANDE, SPL.P.P.) * * * THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF THE CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.NCB F.NO.48/1/14/2020/BZU (NOW RENUMBERED AS SPECIAL CASE NO.159 OF 2021) REGISTERED BY THE NARCOTICS CONTROL BUREAU, BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER SECTION 8(C) READ WITH SECTIONS 22, 27 AND 29 OF THE NDPS ACT.

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THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13-7-2021 AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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Criminal Petition No.1305 of 2021 is filed by

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accused No.3 and Criminal Petition No.4159 of 2021 is filed by accused No.9 under Section 439 of the Code of Criminal Procedure, 1973, (for short, ‘the Cr.P.C.’) for granting regular bail in Crime No.NCB F.No. 48/1/14/2020/BZU registered by the Narcotics Control Bureau, Bengaluru (for short, ‘NCB’) for the offences punishable under Section 8(c) read with Sections 22, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru.

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Heard the arguments of Sri Hashmath Pasha, learned Senior counsel for the petitioner-accused No.3 in Criminal Petition No.1305 of 2021, Sri Rohan Kothari, learned counsel for the petitioner-accused No.9 in Criminal Petition No.4159 of 2021 and Sri Madhukar

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Deshpande, learned Special Public Prosecutor for the respondent-NCB.

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The case of the prosecution is that on 21-8-2020 at 5.50 p.m., Intelligence Officer of the NCB received information that one Mohammed Anoop-accused No.2 residing in Room No.205-206 of Royal Suites Hotel Apartments, Situate at Kalyan Nagar, Bengaluru, has purchased 100 grams of MDMA pills. Accordingly, the NCB raided the said room and found 60 grams of MDMA pills and seized the same under panchanama on 21-8-2020 between 10.10 p.m. and 10.10 a.m. and arrested accused No.2. On enquiry, he revealed that 40 grams of MDMA pills is given to accused No.3, the petitioner in Criminal Petition No.1305 of 2021. Subsequently, during investigation, the NCB also arrested accused No.1 and accused No.9, the petitioner in Criminal Petition No.4159 of 2021, on the ground that they are indulged in drug peddling activities. The petitioners approached the Sessions Court for granting bail, which

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came to be rejected and later, they also approached this Court during crime stage, which also came to be rejected. Now, these successive petitions are filed on various fresh grounds.

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Sri Hashmath Pasha, learned Senior counsel for accused No.3, has contended that as per the information received by the NCB, accused No.2 was in possession of 100 grams of MDMA pills in Room No.205-206 of Royal Suites Hotel Apartments, Kalyan Nagar, Bengaluru, and on raid, they seized 60 grams of MDMA pills and on enquiry, he revealed that 40 grams of MDMA pills is given to accused No.3. As per the information, accused No.2 was in possession of 100 grams of MDMA pills, but not accused No.3. Even in the voluntary statement, he has revealed that accused No.2 gave 40 grams of MDMA pills to accused No.3. Even otherwise, seizure of contraband articles from accused No.3 is after 10.00 or 11.00 p.m. during midnight and therefore, Investigating Officer has no power to search and seize after sunset and before

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sunrise. Recovery of contraband articles from accused No.3 is only based upon the voluntary statement of accused No.2. Investigation Officer has stated that seized articles are 40 grams of MDMA pills, but there is no clear opinion in the FSL report whether it contains MDMA pills and ecstasy. Therefore, it attracts Schedule 159 of the NDPS Act and not Schedule 134 of the NDPS Act. 40 grams of MDMA pills seized from accused No.3 is not commercial quantity. Commercial quantity is 50 grams. Therefore, Section 22(b) of the NDPS Act attracts and not Section 22(c) of the NDPS Act. There is no Bar as per Section 37 of the NDPS Act for granting bail. Accused No.3 is working as a Tourist Book Ticketor for foreign tours. Since accused No.3 is suffering from depression, he is addicted to drugs and is only a consumer. As per Section 64A of the NDPS Act, accused No.3 shall be provided with treatment admitting him to de-addiction center. Once accused No.3 has purchased for personal use, offence under Section 27 of the NDPS Act would attract and therefore, he should be treated as victim and

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not as a drug peddler. Co-accused have been granted bail by the Co-ordinate Bench of this Court as they are also consumers. Therefore, on the ground of parity, accused No.3 is also entitled for bail. In the earlier occasion, these points were not raised by the learned counsel. Investigation has been completed and charge-sheet has been filed. In support of his arguments, he has relied upon the judgments of the Hon’ble Supreme Court. Hence, he prayed for allowing the petition.

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Sri Rohan Kothari, learned counsel for accused No.9, has contended that accused No.9 is in custody from 28-1-2021 for almost five months. Accused Nos.4 to 8 have been granted bail by the Co-ordinate Bench of this Court and on the ground of parity, accused No.9 is also entitled for bail. The allegation against accused No.9 is that he has purchased drugs from accused No.1, but nothing has been seized from his custody and he has been implicated on the basis of mobile number and WhatsApp messages found in the mobile number of accused No.1.

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He further contended that accused No.1 purchased drugs from African citizen, namely Jicks, and provided him a sim card. The Police arrested accused No.9 and his mobile number was de-activated from November-2019 onwards and no messages were recovered from mobile number of accused No.9 and only WhatsApp messages were found in the mobile number of accused No.1. There is no call details received for conversation between accused No.9 and accused No.1 to connect with the crime. Except conspiracy, there is no material against accused No.9. The Court cannot draw presumption against accused No.9 without seizing any contraband articles and hence, Section 37 of the NDPS Act will not be applicable to accused No.9. Voluntary statement of accused No.9 made before Investigating Officer under Section 67 of the NDPS Act is not admissible. There is no document to show that accused No.9 made any phone calls to accused No.1 for purchasing the drugs. Commercial quantity of drugs is seized from other accused, which cannot be attributed against accused No.9. There is no specific allegation

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against accused No.9 as per Section 22(c) of the NDPS Act to attract Section 37 of the NDPS Act. Hence, he prayed for allowing the petition.

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Per contra , Sri Madhukar Deshpande, learned Special Public Prosecutor for the respondent-NCB, has seriously objected the bail petitions and contended that accused No.3 was found with 40 grams of MDMA pills and therefore, he cannot be considered as a consumer, but a drug peddler. Previously, this Court dismissed the petition of accused No.9 on merits. There is no fresh ground available for him to grant bail. Section 27A of the NDPS Act is applicable to accused No.9. He further contended that accused No.9 himself obtained mobile number (sim) in fictitious name, contacted accused No.1 and has de-activated the mobile number in November2019. Accused No.9 placed the order to accused No.1 and purchased the drugs from him and thereafter, he has distributed to accused Nos.4 to 8 which amounts to drug peddling. Earlier to filing of the charge-sheet or after

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filing of the charge-sheet, the gravity of offence will not change. Filing of the charge-sheet cannot be a ground for changed circumstance for granting bail to accused Nos.3 and 9. The offence is heinous one. If the petitioners are granted bail, they may commit similar offences, tamper with the prosecution witnesses and abscond from the case. Hence, he prayed for dismissing the petitions.

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Upon considering the arguments and perusal of

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the record, the learned Senior counsel for accused No.3 contended that on information received by the NCB on 21-8-2020 at 5.50 p.m. that accused No.2 had kept 100 grams of MDMA pills and when they raided the hotel room of accused No.2, he was found only with 60 grams of MDMA pills and on enquiry, he revealed that he has sold 40 grams of MDMA pills to accused No.3 for personal consumption. Of course, personal consumption comes under Section 27 of the NDPS Act, which is small quantity, but in the voluntary statement recorded by Investigating Officer, it reveals that accused No.3 is

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addicted to drugs from his student’s life, he purchased MDMA pills from accused No.2 for personal consumption, but he has stated that he is not involved in drug trafficking. 40 grams of MDMA pills and 180 blots of LSD were seized in Flat No.52401, 24^th Floor, Tower No.5, Nikoo Homes-1, Chokkanahalli, Jakkur, Yelahanka, Bengaluru. 40 grams of MDMA pills is of medium quantity and less than commercial quantity. Voluntary statement of accused No.3 is filed in the charge-sheet material shows that he was on depression about four years back and used to consume MDMA pills to overcome depression and he consumes opium for severe pain, after he met with an accident.

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Learned Senior counsel further contended that on perusal of the FSL report, it shows the articles seized contained positive test for Methylene-dioxy Phenethyalmine which attracts only Sl. No.159 of the Schedule of the NDPS Act, which contains (+)-(S)-N, alphadimethylphenethylamine, (+)2methylamino-1-

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Phenylproprane. Therefore, the learned Senior counsel contended that Sl. No.134 of the Schedule of the NDPS Act is not attracted. The MDMA pills seized from accused No.3 is 40 grams. On perusal of Sl. No.134 of the Schedule of the NDPS Act, it is MDMA and ecstasy which contains (+)-N, alpha-dimethyl-3,4-(methylene-dioxy)

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phenethylamine and 10 grams is the commercial quantity. In the FSL report, it contains methylenedioxymethamphetamine (MDMA). The

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commercial quantity is 10 grams. Sl. No.159 of the Schedule of the NDPS Act is different and it is (+)-(S)-N, alpha-dimethylphenethylamine, (+)2methylamino-1-

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Phenylproprane and the commercial quantity is 50 grams. From accused No.3, the seized MDMA pills are 40 grams, which is four times of commercial quantity. Therefore, the contention of learned Senior counsel cannot be acceptable that the said quantity comes under Sl. No.159 of the Schedule of the NDPS Act.

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The next contention taken up by the learned Senior counsel is that accused No.3 purchased 40 grams of MDMA pills for personal consumption to overcome depression, which is not punishable under the NDPS Act and the voluntary statement made under the NDPS Act is on par with Section 25 of the Indian Evidence Act, 1872, which is not admissible and the voluntary statement is admissible only in favour of accused No.3. On the voluntary statement of the accused, the learned Senior counsel relied upon the various judgments of the Hon’ble Supreme Court. Of course, as per Section 64A of the NDPS Act, any addict, who is charged with an offence punishable under Section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment shall not be liable to prosecution. But in this case, 40 grams of MDMA pills have been seized, which is four times of

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commercial quantity. Though he has stated that for personal consumption, but as per credible information, 100 grams of MDMA pills was in possession of accused No.2 and he has left 40 grams of MDMA pills in the house of accused No.3 and there is every possibilities that accused No.2 in order to avoid commercial quantity keeping part of the drugs by bifurcating into small quantity in the house of accused No.3 is not ruled out. Therefore, the contention of the learned Senior counsel cannot be acceptable that voluntary statement must be admissible in favour of accused No.3 and he should be exonerated from the charges. There is a Bar under Section 37 of the NDPS Act for granting bail as the quantity involved is commercial quantity. Though the learned Senior counsel relied upon the various judgments of the Hon’ble Supreme Court and High Courts, this Court cannot conduct mini trial for the purpose of granting bail and the lapses to be considered only after trial. The contention of the learned Senior counsel cannot be acceptable that it was for self consumption as the quantity

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is four times of the commercial quantity. Even Section 29 of the NDPS Act attracts against accused Nos.2 and 3. Therefore, I am of the view that accused No.3 is not entitled for bail.

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The allegation against accused No.9 is that he purchased the drugs from accused No.1 by sending WhatsApp messages which was found in the mobile phone of accused No.1 and the drugs were purchased by accused No.1 from African citizen. Accused No.9 used mobile No.7829300919 to contact accused No.1 (mobile No.8904163196) and during investigation, Investigating Officer requested the service provider-Airtel Company to provide call details, wherein it has stated that mobile No.8904163196 was activated from 18-6-2016 to 22-11-2019 and the same was de-activated in November2019 itself. There is no incriminating evidence collected by Investigating Officer to show that accused No.9 had contacted accused No.1 through his mobile number and another phone which also belongs to accused No.9. The

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documents produced by the prosecution in the chargesheet reveals the screenshots of WhatsApp messages, wherein it shows that accused No.9 placed order for sending drugs. However, screenshots obtained only from mobile phone of accused No.1 and the Police not recovered the screenshots or SMS or WhatsApp messages from the mobile phone of accused No.9. Except WhatsApp messages, there is no material or contraband articles seized from accused No.9. Though the prosecution has stated that accused No.9 used the name as Jicks, who is African citizen, for placing order, but there is no material to establish that the mobile phone was used by accused No.9 in the name of Jicks for purchase of drugs. Coaccused have been granted bail by the Co-ordinate Bench of this Court. Since no drugs was recovered from accused No.9, there cannot be any presumption against accused No.9 without any recovery of contraband articles. Once there is no seizure from accused No.9, the offences punishable under Sections 19, 24 and 27A of the NDPS Act do not attract for barring or granting bail as per

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Section 37 of the NDPS Act. When there is no recovery, the offences punishable under Sections 22(a) and 22(b) are not attracted against accused No.9. There is no specific allegation made against accused No.9 for the offence punishable under Section 22(c) of the NDPS Act. Looking to the entire material placed on record, the only allegation against accused No.9 is that he placed the order and received the contraband articles only based upon the WhatsApp messages seized from the mobile phone of accused No.1. Accused No.9 was arrested and in custody from January-2021. Investigation is completed and charge-sheet is filed. The presence of accused No.9 may not be required for investigation, except for trial. Previously, the NCB issued notice to him and he appeared before the NCB on 4-1-2021 and 13-1-2021 and on 28-1-2021, on his voluntary statement, he was arrested. Without material being seized from accused No.9, the Court cannot presume that he actively participated and committed the offences in respect of drug trafficking with accused No.1. Accused No.9 is implicated only on the

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basis of WhatsApp messages and screenshots seized from the mobile phone of accused No.1 and not from the mobile phone of accused No.9. Therefore, I am of the view that accused No.9 has made additional and fresh grounds for granting bail. Hence, I pass the following

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O R D E R

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Criminal Petition No.1305 of 2021 filed by accused No.3 is dismissed .

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Criminal Petition No.4159 of 2021 filed by accused No.9 is allowed .

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The Trial Court is directed to release the petitioneraccused No.9 on bail in Crime No.NCB F.No. 48/1/14/2020/BZU registered by the Narcotics Control Bureau, Bengaluru Zonal Unit, for the offences punishable under Section 8(c) read with Sections 22, 27 and 29 of the NDPS Act, subject to the following conditions:

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i) Petitioner shall execute a personal bond in a sum of Rs.5,00,000/- (Rupees five lakh only) with two sureties for the likesum to the satisfaction of the Trial Court;

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ii) Petitioner shall not tamper with the prosecution witnesses directly or indirectly;

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iii) Petitioner shall not indulge in any similar offences;

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iv) Petitioner shall not leave the jurisdiction of the Court without prior permission of the Trial Court; and

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v) Petitioner shall mark his attendance before the NCB, Bengaluru Zonal Unit, on every 2^nd of calendar month for a period of six months or till commencement of the trial, whichever is later.

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Sd/JUDGE

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kvk

Rijesh Ravindran v. Union of India

Case brief

What is this about?

What did the court decide?

Rijesh Ravindran v. Union of India

Case brief

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