Allowed

Santhosh K v. State of Karnataka

Karnataka HC2 Aug 2021CRL.P/4930/2021

Case brief

AI extract

What is this about?

High Court granted bail to accused No.11 in an NDPS and Foreigners Act case. Court held that delay in obtaining chemical analysis report by 60 days and lack of mention of quantity in seizure memo create grounds for bail, despite commercial quantity allegation.

What did the court decide?

Petitioner enlarged on bail in sum of Rs.2,00,000/- with two sureties subject to conditions of not committing offences, tampering, and appearing.

Santhosh K Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G. UMA

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CRIMINAL PETITION No.4930 OF 2021

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BETWEEN :

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SANTHOSH K. S/O KRISHAPPA AGED ABOUT 28 YEARS R/O FLAT NO.201, 2^ND FLOOR SRIVARI HERITAGE APARTMENT 1^ST MAIN, VINAYAKA NAGAR KONENA AGRAHARA BENGALURU-560 017.

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… PETITIONER

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(BY SMT: RENY SEBASTIAN, ADVOCATE)

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AND :

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STATE OF KARNATAKA BY CENTRAL CRIME BRANCH BENGALURU CITY-560 001. ANTI-NARCOTICS WING REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR.

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… RESPONDENT

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(BY SRI: H.R.SHOWRI, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.101/2021 OF KADUGODI P.S., BENGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTION 8C, 20(2)(b),

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21(C), 22(C), 23(2), 27(A) OF NDPS ACT AND SECTION 14 OF FOREIGNERS ACT.

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

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O R D E R

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The petitioner-accused No.11 is before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.101/2021 of Kadugodi Police Station, registered for the offences punishable under Sections 8(c), 21(c), 22(c), 27(a), 20(ii)(B) and 23(c) of Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS Act’) and Section 14 of the Foreigners Act, on the basis of the first information lodged by the informant B S Ashok.

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Heard Smt.Reny Sebastian, learned counsel for the petitioner and Sri.H R Showri, learned High Court Government Pleader for the respondent -State. Perused the materials placed on record.

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Learned counsel for the petitioner submitted that the petitioner is arrayed as accused No.11. Initially, the FIR was registered against accused Nos.1 to 6 only.

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They were apprehended and have been taken to police custody till 07.06.2021. On the basis of the voluntary statements of accused Nos.7 and 8, the present petitioner is arrayed as accused No.11 in this case. He was apprehended on 06.06.2021 and since then he is in judicial custody. Even though the petitioner was apprehended, nothing has been seized from his custody. However, it is stated that the contraband was seized from Flat No.701 of Gopalan Aristocrat Apartment situated at Kasthuri Nagar, Bengaluru. But the said premises does not belong to the petitioner and the recovery is not at his instance. Even the total quantity of contraband i.e., 80 MDMA ecstasy pills said to have been recovered is not mentioned in the seizure mahazar. Even though he was apprehended on 06.06.2021 and the incriminating materials said to have been seized, till today FSL report is not made available.

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As per the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi, the chemical analysis report is to be made available within a maximum

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period of 30 days. Learned counsel further submitted that the co-ordinate Bench of this Court in Criminal Petition No.5259 of 2018 vide order dated 19.09.2018 considered the requirement of guidelines referred to above and the accused therein was released on bail for non compliance of the guidelines. Therefore, in the present case also, similar non compliance of the guidelines is found, which enables the petitioner to seek release on bail. Accused No.9 against whom similar allegations are made is already enlarged on bail by this Court in Criminal Petition No.4612 of 2021 vide order dated 29.07.2021. Hence, on principle of parity, the present petitioner is also entitled to be enlarged on bail. The petitioner is the permanent resident of the address mentioned in the cause title of the petition and is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition.

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Per contra, learned High Court Government Pleader opposing the petition submitted that during

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interrogation of accused Nos.1 to 9, the Investigating Officer found that the present petitioner was also in possession of drugs. The accused were possessing and distributing the Narcotic Drugs by using the Tar Dark website. 80 tablets weighing 28 grams of MDMA tablets were seized at the instance of the present petitioner. Even though the investigation is already completed, the FSL report is awaited. In view of the seriousness of the offences, the petitioner is not entitled for grant of bail. Hence, he prays for dismissal of the petition.

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

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“Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?”

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

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R E A S O N S

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The materials on record discloses that serious allegations are made against all the accused including the present petitioner. Prima facie, it discloses the commission of offences. Even though, it is contended by the learned counsel that the quantity of MDMA are not mentioned in the seizure mahazar, the seizure mahazar made available for perusal of the Court by the learned High Court Government Pleader discloses that the quantity of the contraband seized was 28 grams which is considered to be the commercial quantity.

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My attention was drawn by the learned counsel to the Standing Instructions issued by the Narcotics Control Bureau, New Delhi regarding the procedure that is to be adopted for drawal, storage, testing and disposal of samples from the seized narcotic drugs and psychotropic substances. The guideline at Sl.No.1.18 refers to the expeditious test analysis of narcotic drugs and psychotropic substance which is required to be completed.

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As per these guidelines, it is specifically mentioned that in many cases, the Court may refuse to extend police/judicial remand beyond 15 days in the absence of chemical report. Accordingly, it is essential that the analysis is completed and the report is dispatched within 15 days from the date of receipt of the sample. It is also stated that however, where quantitative analysis require longer time, the result of the qualitative test should be dispatched to the officer from whom the sample was received within the aforesaid time limit.

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In the present case, it is stated that the present petitioner was apprehended on 06.06.2021 and on the same day, contraband in question was seized at his instance. It is stated that the investigation is already completed, but chemical analysis report is still awaited even after lapse of 60 days. Unless the seized object is shown to be the prohibited contraband, no prima facie case will be made out against the present petitioner. However, the prosecution will be at liberty to place the

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materials including the chemical analysis report before the Trial Court to prove the offence committed by the petitioner. Since the investigation is already completed and since the petitioner is not having any criminal antecedents, I am of the opinion that the there are no grounds to detain the petitioner in custody. Hence, I am of the opinion that the petitioner is entitled to be enlarged on bail subject to conditions, which will take care of the apprehension expressed by the learned High Court Government Pleader that the petitioner may abscond or may tamper or threaten the prosecution witnesses.

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Accordingly, I answer the above point in ‘Affirmative’ and proceed to pass the following:

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ORDER

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The petition is allowed.

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The petitioner is ordered to be enlarged on bail in Crime No.101/2021 of Kadugodi Police Station on obtaining the bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the

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satisfaction of the jurisdictional Court, subject to the following conditions:

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a). The petitioner shall not commit similar offences.

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b). The petitioner shall not threaten or tamper with the prosecution witnesses.

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c). The petitioner shall appear before the Court as and when required.

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If in case, the petitioner violates any of these conditions, the prosecution will be at liberty to move the Trial Court seeking cancellation of bail.

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Sd/JUDGE

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*bgn/-

Santhosh K v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Santhosh K v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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