Allowed

Apeksha Ashok Naik v. State of Karnataka

Karnataka HC2 Aug 2021CRL.P/4282/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka granted anticipatory bail in four connected criminal petitions filed by individuals accused of offences under the NDPS Act and IPC. The court held that despite serious allegations involving commercial quantity of drugs, bail should be granted subject to conditions to ensure investigation and prevent absconding, maintaining parity with other co-accused.

What did the court decide?

The petitioners are enlarged on bail upon furnishing a bond of Rs.2,00,000 with two sureties each, subject to conditions regarding appearance, no tampering, and furnishing accurate documents.

Apeksha Ashok Naik Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 2^ND DAY OF AUGUST, 2021

¶3

BEFORE

¶4

THE HON’BLE MRS.JUSTICE M.G.UMA

¶5

CRIMINAL PETITION NO.3736 OF 2021 c/w CRIMINAL PETITION NOs.4038 OF 2021, 4107/2021 & 4282/2021

¶6

IN CRL.P.NO.3736/2021:

¶7

BETWEEN :

¶8

KIRAN KARTHIK R S/O RAVINDRA KUMAR AGED ABOUT 36 YEARS R/AT 11B, ROSA, REGENCT LA MAJADA CHIKKANNA LAYOUT, HBR LAYOUT, VTC BANGALORE NORTH BENGALURU-560 043

¶9

…PETITIONER

¶10

(BY SRI. CHANDRASHEKAR .R.P, ADVOCATE)

¶11

AND :

¶12

STATE OF KARNATAKA BY COTTONPETE PS (CCB) BANGALORE REPRESENTED BY LD. SPECIAL PUBLIC PROSECUTOR BANGALORE-01

¶13

… RESPONDENT

¶14

¶15

(BY SRI. VEERANNA .G. TIGADI, SPL. COUNSEL)

¶16

THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C, PRAYING THIS COURT TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CRIME NO.109/2020(SPL.C.NO.212/2021) OF COTTONPET P.S., BANGALORE FOR THE OFFENCE P/U/S 21, 21(C), 27A, 29 OF NDPS ACT AND SECTION 120B OF IPC.

¶17

IN CRL.P.NO.4038/2021:

¶18

BETWEEN :

¶19

MR SHARIF HASSAN MASHURI S/O MR. ABDUL HAKIM GAVAYI AGED ABOUT 35 YEARS RESIDING AT NO.1684/2 ‘SALIHA MANSION’ SULTHAN STREET BEHIND KOLECO HEALTH COMPLEX BHATKALA UTTARA KANNADA DISTRICT-581 320

¶20

(BY SRI. DEVARAJ .G. AND ASSOCIATES, ADVOCATE)

¶21

AND : STATE OF KARNATAKA BY COTTONPETE POLICE STATION BENGALURU-560 001

¶22

… RESPONDENT (BY SRI. VEERANNA .G. TIGADI, SPL. COUNSEL)

¶23

THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C, PRAYING THIS COURT TO ENLARGE THE

¶24

¶25

PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CRIME NO.109/2020(SPL.C.NO.212/2021) OF COTTONPET P.S., BANGALORE FOR THE OFFENCE P/U/S 21, 21(C), 27A, 27(B), 29 OF NDPS ACT.

¶26

IN CRL.P.NO.4107/2021:

¶27

BETWEEN :

¶28

SRI. SUMITH SAGAR S/O SRI SANJAN KUMAR DATTA AGED ABOUT 30 YEARS R/AT NO. 22/8 9^TH MAIN, 14^TH CROSS, BTM 2^ND STAGE BENGALURU - 560 076

¶29

…PETITIONER

¶30

(BY SRI. MAHESH S. AND CO., ADVOCATE)

¶31

AND :

¶32

STATE OF KARNATAKA BY COTTONPETE POLICE STATION BENGALURU REP. BY SPP HIGH COURT OF KARNATAKA BANGALORE – 01

¶33

… RESPONDENT (BY SRI. VEERANNA .G. TIGADI, SPL. COUNSEL)

¶34

THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C, PRAYING THIS COURT TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CRIME NO.109/2020(SPL.C.NO.212/2021) OF COTTONPET

¶35

¶36

P.S., BANGALORE FOR THE OFFENCE P/U/S 21, 21(C), 27A, 27(B), 29 OF NDPS ACT AND SECTION 120B OF IPC.

¶37

IN CRL.P.NO.4282/2021:

¶38

BETWEEN :

¶39

APEKSHA ASHOK NAIK D/O ASHOK B NAIK AGED ABOUT 35 YEARS R/AT IRIS ETA STAR GARDEN BINNY MILL CIRCLE MAGADI ROAD BANGALORE-500 023

¶40

…PETITIONER

¶41

(BY SRI. CHANDRASHEKHAR PATIL, ADVOCATE)

¶42

AND :

¶43

STATE OF KARNATAKA BY COTTONPET P.S (CCB) REPRESENTED BY THE LEARNED STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE-560 001

¶44

… RESPONDENT

¶45

(BY SRI. VEERANNA .G. TIGADI, SPL. COUNSEL)

¶46

¶47

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

¶48

¶49

O R D E R

¶50

The petitioner-accused No.23 in Crl.P.No.3736/2021, petitioner-accused No.19 in Crl.P.No.4038/2021, petitioner-accused No.25 in Crl.P.No.4282/2021 and petitioner-accused No.24 in Crl.P.No.4107/2021 are before this Court seeking grant of anticipatory bail in Crime No.109/2020 of Cottonpet Police Station, registered for the offences punishable under Sections 21, 21(c), 27A, 27(b) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS’ Act) and under Section 120B of the Indian Penal Code (for short 'IPC'), on the basis of the first information lodged by the informant Sri.K.C.Gowtham.

¶51

Heard Sri. Chandrashekahar.R.P in Crl.P.No.3736/20s21, Sri.Devaraj.G and Associates in Crl.P.No.4038/2021, Sri.Chandrashekar Patil in Crl.P.No.4282/2021 and Sri.Mahesh.S. and Co., in Crl.P.No.4107/2021, learned Counsels for the petitioners and Sri.Veeranna.G.Tigadi, learned Special Counsel for the respondent-State. Perused the materials placed on record.

¶52

¶53

Learned counsels representing the petitioners in unison submitted that these petitioners were not named while registering the FIR. Initially FIR was registered against accused Nos.1 to 12 only. The investigation is held and the charge sheet came to be filed. At the time of filing the charge sheet, these petitioners were arrayed as accused Nos.19, 23, 24 and 25. Subsequently, the additional charge sheet also came to be filed against accused Nos.26 and 27 for the above said offences. It is contended that the main accused i.e., accused No.1 was granted anticipatory bail by the Hon’ble Apex Court. Accused No.2 was subjected to interrogation and she was also enlarged on bail subject to conditions. Accused Nos.3, 6, 7, 20 and 21 were granted either anticipatory bail or regular bail, subject to conditions.

¶54

Learned counsels further submit that the prosecution is relying on the so-called voluntary statements of the co-accused to implicate these petitioners regarding commission of the offences. But there are no

¶55

¶56

prima-facie materials available against any of the petitioners for having committed the offences. The main accused who are either owners of the night clubs, organizers of the parties, where drugs are being supplied/distributed for consumption and serious allegations of procuring, distributing or possessing the contraband is made are already enlarged on either anticipatory bail or regular bail. At this stage, these petitioners are not required for custodial interrogation. They are the permanent residents of the addresses mentioned in the cause title to the petitions and they are ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, they pray to allow the petitions in the interest of justice.

¶57

Per contra, learned Special Counsel representing the respondent, opposing the petition submitted that serious allegations are made against these petitioners for having committed the offences. Accused Nos.12, 13, 14, 15 and 20 have referred the names of

¶58

¶59

these petitioners in their voluntary statements. Commercial quantity of contraband was recovered at the instance of accused Nos.7, 15, 17, 20 and 21. He also submitted that CWs 26, 63, 66, 68, 72, 73, 74, 75, 76, 78, 80, 81, 85, 87, 93, 95, 97, 98, 100, 103, 117, 118 are the prosecution witnesses and their statements under Section 164 of Cr.P.C. were recorded before the learned Magistrate. All these witnesses have referred the names of these petitioners as conspirators in committing the crime and were either possessing, transporting or distributing the contraband. Since they were shown as absconding while filing the charge sheet, they are not entitled for grant of anticipatory bail.

¶60

He placed reliance on the decision of Hon’ble Apex Court in the case of Union of India vs. Ram Samujh and another¹ to contend that in view of Section 37 of the NDPS Act, if the petitioners are to be granted anticipatory bail, the finding is to be recorded by this Court

¶61

1 (1999) 9 SCC 429

¶62

¶63

that there are no reasonable grounds for believing that these accused are not guilty of such offences and that they are not likely to commit any such offences while on bail. Unless such a finding is recorded these petitioners are not entitled for grant of anticipatory bail.

¶64

He further relied on the decision in the case of

¶65

P.Chidambaram vs. Directorate of Enforcement² to

¶66

contend that power under Section 438 of Cr.P.C. is an extra ordinary power and the same has to be exercised sparingly. The privilege of pre-arrest should be granted only in the exceptional cases and the anticipatory bail is not to be granted as a matter of right. Therefore, he submits that since serious allegations have been made against the petitioners and sufficient materials are placed before the Court in support of the same, they are not entitled for grant of anticipatory bail. It is submitted that if the petitioners are granted anticipatory bail, they may never turn up before the Investigating Officer and they

¶67

2 (2019) 9 SCC 24

¶68

¶69

may abscond or may commit similar offences, threaten or tamper the prosecution witnesses. Therefore, the petitioners are not entitled for grant of anticipatory bail. Hence, he prays for dismissal of the petitions.

¶70

In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

¶71

“Whether the petitioners are

¶72

entitled for grant of bail under Section 438 of Cr.P.C.?”

¶73

My answer to the above point is in ‘Affirmative’ for the following:

¶74

R E A S O N S

¶75

Initially, the FIR was registered against accused Nos.1 to 12 for having committed the offences as stated above. During investigation, some of the accused were subjected to interrogation and they have referred to the names of other accused, who were not named in the FIR. Some of them were also apprehended and they were

¶76

¶77

subjected to interrogation. It is stated that during investigation, huge quantity of contraband, which is of commercial quantity, were recovered at the instance of various accused persons. It is not in dispute that accused No.1 is granted anticipatory bail by the Hon’ble Apex Court. Accused Nos.8 and 10 were also granted anticipatory bail. It is not in dispute that all the other accused are already granted either anticipatory bail or regular bail.

¶78

The voluntary statements of various accused pointed out by the learned Special Prosecutor discloses that there is a reference to the names of these petitioners making specific allegations of dealing with drugs and committing the offences as co-accused. The statements of various charge sheet witnesses referred to above, recorded under Section 164 of Cr.P.C. also refers to the names of these petitioners as they are partners in crime, along with other accused. Admittedly, the charge sheet and additional charge sheet are filed. The names of these petitioners

¶79

¶80

were not mentioned in any of the remand applications filed at the time of producing the additional accused who were apprehended subsequently, on the basis of the information given either by the co-accused or by the witnesses, to contend that these accused were absconding at the time of investigation or further investigation, though there are specific and serious allegations made against them.

¶81

Specific and serious allegations are made against the main accused i.e., accused Nos.1 and 2 that they used to organize night parties in the clubs. Accused No.3 used to supply Narcotic Drugs or Psychotropic Substances to various Hotels, Bars or night Clubs. Accused No.6 being the owner of the club/resort by name ‘House of Life’ used to organize parties/events. Accused Nos.7, 20 and 21 are the foreign nationals indulged in supply of such substances. Accused No.19 in collusion and active connivance of other accused indulged in supplying, hoarding, distributing the contraband to various Hotels/Bars/Night clubs etc., inducing others to consume

¶82

¶83

or distribute the same to others with an intention to earn huge income and also indulged in consuming the contraband and thereby spoiling the health of the society.

¶84

Accused No.19 is said to be the friend of

¶85

accused No.6 and it is alleged that, he used to distribute/supply drugs to the customers in the resort - ‘House of Life’. Accused No.23 is managing the affairs of the said resort. Accused No.24 being the associate of accused No.3, working as Manager in VKP Productions used to organize night parties and used to supply drugs to the participants. Accused No.25 being the friend of accused Nos.15 and 16 used to visit parties organized by the other accused and provided financial assistance in developing ‘Bigo’ application in the house of accused No.14. It is stated that all these accused have actively participated in the commission of offences along with other accused. Even though the allegation against these accused who are the petitioners herein are of serious nature that they acted/assisted the main accused in commission of the

¶86

¶87

offences, admittedly, all other accused with whom the petitioners were co-ordinating, working etc., are subjected to interrogation and enlarged on bail. Accused No.6, with whom accused Nos.19 and 23 are identified, Accused No.3, with whom accused No.24 is identified and Accused Nos.15 and 16, with whom Accused No.25 is identified, are the main accused and detailed investigation is already held by subjecting them for interrogation. Even when accused No.1 and others obtained anticipatory bail, they were interrogated/enquired during investigation. Now investigation is completed and charge sheet and additional charge sheet were filed. Under such circumstances, I do not find any reason to reject the petitions filed by the petitioners for anticipatory bail. Even if the petitioners are granted anticipatory bail, it will be subject to conditions and the Investigating Officer will be at liberty to interrogate them, recover any incriminating materials, if the occasion arises. The petitioners may even be subjected to custodial interrogation if the Investigating Officer thinks it proper, with the permission of the Jurisdictional

¶88

¶89

Magistrate. Under such circumstances, I do not find any merits in the contention of the learned Special Prosecutor that the petitioners may remain absconding, if anticipatory bail is granted.

¶90

The learned Special Prosecutor relied on the decision of the Hon’ble Apex Court in P.Chidambaram ( supra), to contend that the power under Section 438 of Cr.P.C. for grant of anticipatory bail is to be exercised sparingly as it is an extra ordinary power vested in this Court. Regarding the position of law, there cannot be any dispute as the same is very well settled. The discussions held above discloses that the investigation was undertaken since several days, several accused were apprehended and they were subjected to custodial interrogation. Several other accused including the main accused who are said to be the master mind are already granted anticipatory bail by the Hon’ble Apex Court.

¶91

Learned counsel for the respondent placed his reliance on the decision in Ram Samujh (supra) , to

¶92

¶93

contend that unless the twin conditions mentioned under Section 37 of the NDPS Act are not complied with, the petitioners are not entitled for grant of anticipatory bail in the present case. In Ram Samujh (supra) , the Hon’ble Apex Court considered the requirement of Section 37 of the NDPS Act in light of the legislative intent to achieve the object mentioned in the statement of objects and reasons for introducing the bill for amendment and held that those two requirements are to be complied with as the commercial quantity of contraband is involved in the case.

¶94

Learned counsel for the petitioners relied on the decision in Nikesh Tarachand Shah Vs Union of India (UOI) and Ors.³ to contend that the twin requirement mentioned under Section 37 of the Act is unconstitutional as it is arbitrary, discriminatory and violative of the fundamental rights of the petitioners.

¶95

I have gone through the decision of Nikesh Tarachand Shah (supra). The Hon’ble Apex Court

¶96

3 (2018) 11 SCC 1

¶97

¶98

considered Section 45 of the Prevention of Money Laundering Act, 2002 in light of Articles 14 and 21 of the Constitution of India and held that the same is arbitrary, discriminatory and violative of fundamental rights of the accused. However, the Hon’ble Apex Court referred to Section 37 of the Act and find justifiable reason to discriminate amongst the accused, different offences in respect of small quantity, intermediary quantity and commercial quantity. It is never held that Section 37 of the NDPS Act is also violative of fundamental rights of the accused. On the other hand, the Hon’ble Apex Court found justifiable reason for classifying the offence by categorizing the quantity of the contraband as small quantity, above small and below commercial quantity and commercial quantity. Therefore, this decision relied on by the petitioners is not helpful to them.

¶99

In the present case, admittedly, accused Nos.1 to 18 are either on regular bail or granted anticipatory bail, either by this Court or by the Honble Apex Court. Accused

¶100

¶101

Nos.1, 2, 3, 6, 7, 20 and 21 have been though arrayed as main accused and made serious allegations, are already on bail or anticipatory bail. Admittedly, the order enlarging these accused on bail or granting anticipatory bail by this Court is never challenged before the Hon’ble Apex Court. It is contended that while consideration of similar petitions for grant of anticipatory bail or regular bail filed by other accused before this Court, the respondent has never relied on Section 37 of the NDPS Act to oppose such petitions. When the co-accused against whom serious allegations are made regarding commission of the offence, including possession of commercial quantity of drugs, transporting the same or distributing it amongst the customers who attend night parties are already either on anticipatory or regular bail, these petitioners are entitled for the benefit of parity at this stage of the proceedings. Thus, discussions held above entitles the petitioners for grant of anticipatory bail subject to reasonable conditions, which will take care of the apprehension expressed by the learned Prosecutor

¶102

¶103

that the petitioners may abscond or they may not be available for investigation or interrogation.

¶104

Accordingly, I answer the above point in the

¶105

affirmative and proceed to pass the following:

¶106

ORDER

¶107

The petitions are allowed.

¶108

The petitioner-accused No.23 in Crl.P.No.3736/2021,

¶109

petitioner-accused No.19 in Crl.P.No.4038/2021, petitioner-accused No.25 in Crl.P.No.4282/2021 and petitioner-accused No.24 in Crl.P.No.4107/2021 are ordered to be enlarged on bail in the event of their arrest in Crime No.109/2020 of Cottonpet Police Station.

¶110

The petitioners are directed to appear before the Investigating Officer within 15 days from the date of receipt of this order and on their appearance, the Investigating Officer shall enlarge them on bail subject to the following conditions:-

¶111

¶112

a. The petitioners shall furnish the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) each with two sureties each for the likesum to the satisfaction of the Investigating Officer;

¶113

b. The petitioners shall not commit similar offences;

¶114

c. The petitioners shall appear before the Investigating Officer or the court as and when required; and

¶115

d. The petitioners shall not threaten or tamper the prosecution witnesses.

¶116

On furnishing the sureties by the petitioners, the Trial Court is at liberty to direct the Investigating Officer to verify the correctness of the address and authenticity of the documents furnished by the petitioners and the sureties and a report may be called for in that regard, which is to be submitted by the Investigating Officer within 5 days. The Trial Court on satisfaction, may proceed to accept the sureties for the purpose of releasing the petitioner on bail.

¶117

¶118

If in case, the petitioners violate any of the conditions as stated above, the prosecution will be at liberty to move the Court seeking cancellation of bail.

¶119

Sd/JUDGE

¶120

Apeksha Ashok Naik v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Apeksha Ashok Naik v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Yashaswini S T Vs the State of Karnataka

Sanjeev Paul Vs the State of Karnataka

Anees Pasha @ Anees Vs State of Karnataka

Santhosh K Vs State of Karnataka

Miss. Ramla Shedfa Nancy Vs State by Narcotics Control Bureau

Ashman @ Jayaram Shetty Vs State of Karnataka