Dismissed

Mr Syed Farzan v. the State of Karnataka

Karnataka HC25 Sept 2021CRL.P/4047/2021

Case brief

AI extract

What is this about?

Petitioner sought bail for offences involving commercial quantity of MDMA under NDPS Act. Court held that since charge sheet was filed and recovered quantity was commercial, strict bail provisions of Section 37(b)(ii) applied. Reasonable grounds for innocence not established. Bail rejected.

What did the court decide?

Bail petition rejected; accused to remain in judicial custody.

Mr Syed Farzan Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE V.SRISHANANDA

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CRIMINAL PETITION NO.4047/2021

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BETWEEN :

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MR.SYED FARZAN S/O MR.SYED ASLAM AGED ABOUT 32 YEARS, R/AT NO.32/2, 20^TH MAIN, SHAMANNA GARDEN, J.P.NAGAR 5^TH PHASE, BENGALURU-560078

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…. PETITIONER

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(BY SRI. SYED JAFFER MOHIYUDDIN, ADVOCATE)(VC)

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AND :

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THE STATE OF KARNATAKA BY PUTTENAHALLI POLICE STATION IN BENGALURU, REP. BY S.P.P, HIGH COURT OF KARNATAKA BENGLAURU - 560001. (BY SRI. K.NAGESHWARAPPA, HCGP)(PH)

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… RESPONDENT

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.62/2021 OF PUTTENAHALLI P.S., BENGALURU CITY FOR THE OFFENCE P/U/S 22C, 27A OF THE NDPS ACT.

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THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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This bail petition is filed under Section 439 of the Code of Criminal Procedure.

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The brief facts of the case are as under:

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Puttenahalli police registered a case against the accused/petitioner for the offences punishable under Sections 22C, 27A of the NDPS Act, 1985. After thorough investigation, charge sheet came to be filed. The material on record revealed that near Shamanna Garden, J.P.Nagar 5^th phase, the accused was having some suspicious substance in his pant pocket and having suspected about carrying some illegal objects, police raided him and they were able to recover 25 grams of MDMA and 5 empty covers and Rs.4,000/- (Rupees Four Thousand Only) cash and mobile phone. 3 grams of the seized substance was taken out as sample and the same was sent to the laboratory for confirmation that it is a Psychotropic substance.

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The charge sheet papers revealed that the seized sample is nothing but MDMA and therefore, the police has filed charge sheet.

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The accused/petitioner did approach the Special Court for grant of bail under Section 439 of the Cr.P.C. The

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Special Court by order dated 19.4.2021 in

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Crl.Misc.No.3108/2021 rejected the bail application on contest.

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Sri. Syed Jaffer Mohiyuddin, learned counsel for

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the petitioner vehemently contended that the accused is in custody since 16.03.2021 and the continuation of the accused would amount to pre-trial conviction and sought for grant of bail. He also emphasized that charge sheet having been filed, and the recovery of Psychotropic substance is already made, there is no substance in the apprehensions made out by the prosecution that accused will flee away from justice or interfere with the true course of justice and also tamper the prosecution witnesses and prayed for allowing the bail.

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Per contra, learned HCGP opposes the bail petition contending that the seized Psychotropic substance is of commercial quantity and therefore, the bar under Section 37(b)(ii) is very much applicable to the case on hand and therefore, sought for rejection of the bail. It is further contended that seized material object being confirmed by the laboratory report that it is a Psychotropic substance, prima-facie case is made out as against the accused whereby there are reasonable grounds to believe that he has committed the offence under sections 22C and 27A of the NDPS Act and therefore, no case is made out for grant of bail by this Court by resorting to the special powers vested in this Court under Section 439 of Cr.P.C.

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In view of the above factual aspects, the sole point that would arise for consideration is:

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"Whether the accused/petitioner has made

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out a case for grant of bail.?"

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In the case on hand, seizure of 25 grams of MDMA, 5 empty covers, Rs.4,000/- cash and a mobile phone from the custody of the accused by the Puttenahalli police on 16.03.2021 stands prima-facie established by the materials on record. 3 grams of seized object was taken as sample and it was sent to the laboratory. The Forensic Science Laboratory report reveals that the sample is that of MDMA. Seized material object is to the extent of 25 grams and therefore, it is a commercial quantity.

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The role of the Court while dealing with an offence punishable under the provisions of the NDPS Act is some thing different than, while dealing in an ordinary IPC offence.

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The offences punishable under the provisions of NDPS Act is injurious to the Society at large and therefore, the Courts are required to exercise ut-most care and caution while considering the bail application filed by a person who has been accused of the offences punishable

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under the provisions of the NDPS Act, more so, in view of the language employed under Section 37 of the NDPS Act.

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Section 37 of the said Act is culled out

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hereunder for ready reference:

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“37.Offences to be cognizable and nonbailable:(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 OF 1974):-

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for (offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity) shall be released on bail or on his own bond unless;

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(i) the public prosecutor has been given an opportunity to oppose the application for such release, and

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(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

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7 -

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(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of criminal procedure, 1973(2 of 1974) or any other law for the time being in force, on granting of bail.”

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The emphasis is on Section 37(b)(ii) Therefore, the petitioner has to make out a case that there are reasonable grounds for believing that accused is not guilty. In the case on hand, the seizure of 25 grams of MDMA and 5 empty covers and Rs.4,000/- (Rupees Four Thousand Only) cash and the mobile phone prima-facie establishes that accused is guilty of the offences alleged against him and no grounds are made out to say that he is not guilty of the offences alleged against him.

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Mere continuation of the accused in the judicial custody on 16.03.2021 is not a ground of grant bail in the matter of this nature. Whenever bail application is rejected the natural consequence is that the accused will be allowed to continue in the judicial custody. Therefore, the

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contentions urged on behalf of the petitioner that the accused would be exposed to pretrial conviction cannot be countenanced in law. Accordingly, no case is made out by the petitioner to allow the bail petition.

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At this stage, learned counsel for the petitioner submits that the trial has already commenced. It is needless to emphasize that the trial in respect of the offences punishable under the provisions of the NDPS Act, has to be disposed of as per the time line mentioned in the statute. However, if there is an inordinate delay in completion of the trial, the accused is at liberty to approach the court again with a successive bail application. With this observation, the point is answered in negative and following order is passed.

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The bail petition is rejected.

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Sd/-

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JUDGE

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Mr Syed Farzan v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr Syed Farzan v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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