Dismissed

Sahil Mohammed v. the State by

Karnataka HC6 Sept 2021CRL.P/769/2021

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed two bail petitions filed by accused persons charged under Sections 21 and 21(c) of the NDPS Act. Upholding the State's opposition, the court held that the presence of prima facie evidence regarding commercial quantity of contraband and the failure to satisfy the strict requirements of bail under Section 37(1)(b) barred the grant of bail.

What did the court decide?

Petitions for enlargement of bail were dismissed, and the petitioners were not released on bail.

Sahil Mohammed Vs the State by — Narcotics (NDPS) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06^TH DAY OF SEPTEMBER, 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.5929 OF 2021

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C/W

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CRIMINAL PETITION NO.769 OF 2021

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IN CRL.P.NO.5929/2021

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BETWEEN :

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ASHLESH A. S/O ASHOKAN, AGED ABOUT 33 YEARS, OCC: DRIVER R/AT GANESHA NAGARA JAPPINAMOGARU, MANGALURU - 575 007

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… PETITIONER

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(BY SRI. K. SHASHIKIRAN SHETTY, SERNIOR COUNSEL ALONG WITH SRI. DINESH KUMAR RAO K., ADVOCATE)

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AND :

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THE STATE BY ECONOMIC AND NARCOTIC CRIME POLICE STATION, MANGALURU CITY, D.K. MANGALURU - 575 075

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… RESPONDENT

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(BY SRI. K.S.ABHIJITH, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON

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BAIL IN SPL.C.NO.103/2021 IN CRIME NO.19/2020 OF ECONOMIC AND NARCOTIC CRIME POLICE STATION, MANGALURU CITY, D.K.DISTRICT FOR THE OFFENCE P/U/S 21 AND 21(C) OF N.D.P.S. ACT.

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IN CRL.P.NO.769/2021

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BETWEEN :

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SAHIL MOHAMMED S/O LATE SAIPUDDIN, AGED ABOUT 19 YEARS, OCCUPATION - STUDENT R/AT SAWRABA, NEAR 1ST RAILWAY, BRIDGE, MARNAMIKATTE, MANGALURU - 575 007.

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… PETITIONER

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(BY SRI. K. SHASHIKIRAN SHETTY, SERNIOR COUNSEL ALONG WITH SRI. DINESH KUMAR RAO K., ADVOCATE)

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AND :

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THE STATE BY ECONOMIC AND NARCOTIC CRIME POLICE STATION, PANDESHWAR, MANGALURU - 575 075

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… RESPONDENT

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(BY SRI. K.S.ABHIJITH, 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 CRIME NO.19/2020 OF ECONOMIC AND NARCOTIC CRIME POLICE STATION, MANGALURU CITY, D.K. FOR THE OFFENCE P/U/S 21 AND 21(C) OF N.D.P.S. ACT.

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

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COMMON ORDER

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The petitioners - accused Nos.1 and 2 are before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.19/2020 of E and N Crime Police Station, registered for the offences punishable under Sections 21 and 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), on the basis of the first information lodged by the informant Mohan.

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Heard Sri.K.Shashikiran Shetty, learned Senior counsel for the petitioners and Sri.K.S.Abhijith, learned Counsel for the respondent - State. Perused the materials placed on record.

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Learned senior counsel for the petitioners submitted that the petitioner in Crl.P.No.5929/2021 is arrayed as accused No.1 and the petitioner in Crl.P.No.769/2021 is arrayed as accused No.2. They are innocent and have not committed any offence as alleged. They have been falsely implicated in the matter without any basis. They were apprehended on 09.08.2020 and since then they are in judicial custody. The investigation has been completed and

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the charge sheet is also filed. It is alleged that the commercial quantity of contraband was recovered from the possession of these petitioners. The personal search of the petitioners were not conducted in the presence of Gazetted Officer as required under Section 50 of the NDPS Act. When the mandatory procedure as contemplated under the Act is not complied with, there is no possibility of conviction of the petitioners. The investigation is completed and the charge sheet came to be filed, without furnishing the FSL report. However, subsequently, FSL report came to be filed before the Court. The seizure mahazar relied on by the prosecution discloses that the contraband said to have been secured from the personal search of accused Nos.1 and 2 on 09.08.2020, but the Gazetted Officer Sri. Jagadish signed the same on 10.08.2020. Therefore, it is clear that the Gazetted Officer was not present when the contraband said to have been was seized at the instance of accused Nos.1 and 2. Absolutely, there is no material to connect the petitioners to the offence in question. The petitioners are not having any criminal antecedents. Accused No.2 is a student pursuing his studies. Since the investigation is already completed, detention of the

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petitioners in custody would amount to

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pre-trial punishment. The petitioners are the permanent resident of the addresses mentioned in the cause title to the petitions and are 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 serious allegations are made against the petitioners for having committed the offences. As per the seizure mahazar, commercial quantity i.e., 43.70 grams of MDMA was recovered from the possession of accused No.1 and 14.90 grams of MDMA was recovered from the possession of accused No.2 in the presence of Gazetted Officer. As per the recitals from the seizure mahazar, the Gazetted Officer was present and in his presence, the contraband was recovered from accused Nos.1 and 2. At this stage, it cannot be said that there is a procedural lapses or there is violation of mandatory procedure as required under Section 50 of the NDPS Act. The investigation is completed and the charge

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sheet is filed. As per the FSL report, the contraband seized is MDMA. Under such circumstance, Section 37(1)(b) comes into the operation and it is not a case for forming opinion that the accused is not guilty and will be acquitted after full fledged trial. Looking to the facts and circumstances of the case, the petitioners are not entitled for grant of bail. Hence, he prays for dismissal of the petition.

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Learned High Court Government Pleader relies on the decision of the Hon'ble Apex Court in Supdt. Narcotics Control Bureau, Chennai vs. R.Paulsamy¹ to contend that even if there is procedural lapses, the same can only be considered at the time of trial, but not at the time of considering the bail application of the petitioner to conclude that there are¹ such procedural lapses, which goes to the root of the matter. Learned High Court Government Pleader also placed reliance on the decision of the Hon'ble Apex Court in the case of State of Kerala etc. vs. Rajesh etc., [Crl.A.No(s).154-157 of 2020] to contend that when the commercial quantity of the contraband is seized from the

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1 (2000) 9 SCC 549

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custody of the accused, unless required proviso under Section 37(1)(b) of NDPS Act are not complied with, the petitioners are not entitled for grant of bail.

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Learned HCGP also placed reliance on the order dated 09.06.2020 in Crl.P.No.1298/2020 by the Co-ordinate Bench of this Court, which relied on the decision in R.Paulsamy's case (Supra) to dismiss the bail application filed by the petitioners therein. Placing reliance on these decisions, learned HCGP submitted that the procedural lapses now pointed out by the learned Senior Counsel cannot be considered at this stage to conclude that there is noncompliance of Section 50 of the NDPS Act, which is required to be considered by the trial Court at the time of trial.

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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 petitioners are

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entitled for grant of bail under Section 439 of Cr.P.C.?”

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

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R E A S O N S

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The materials on record discloses that E and N Crime Police received credible information regarding transportation of the contraband. As such, Gazetted Officer was summoned to the spot and accused Nos.1 and 2 were found in possession of 43.70 grams and 14.90 grams of MDMA respectively, which was stated have been seized under a mahazar. Learned Senior counsel pointed out that seizure mahazar was signed by the officer on 10.08.2020. Of course, prima facie it is seen that Gazetted Officer mentioned the date as 10.08.2020, even though the mahazar drawn on 09.08.2020. It is the contention of the learned HCGP that the prosecution will have to explain this inconsistency at the time of trial. In this regard, he placed reliance on R.Paulsamy's (Supra), wherein the Hon'ble Supreme Court held as hereunder:

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6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there

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are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be

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established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections."

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The recitals found in the seizure mahazar

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discloses that the Gazetted Officer was summoned to the spot and thereafter, in his presence MDMA were recovered on the personal search of accused Nos.1 and 2. However, while signing the Gazetted Officer has mentioned the date as 10.08.2020. It is for the prosecution to explain this inconsistency. At this stage, the recitals found in the seizure mahazar that the Gazetted Officer was summoned to the spot and in his presence, the search and seizure was undertaken, cannot be ignored to contend that the seizure was not done in

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the presence of Gazetted Officer and that there is clear violation of provision of Section 50 of the NDPS Act.

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The prosecution has produced FSL report which confirms that the sample sent for chemical analysis is proved to be MDMA and as per the records, commercial quantity of the contraband was recovered from both the accused. When prima facie materials are placed to show that the contraband was recovered from the possession of accused, Section 37(i)(b)(ii) of NDPS Act come into operation and unless the twin requirements as mentioned therein are satisfied to believe that the accused is not guilty of such offences and he is not likely to commit the same offence while on bail, accused are not entitled for bail. Even though learned Senior Counsel placed strong reliance on the date mentioned by the Gazetted Officer, while signing the seizure mahazar on 09.08.2020, at this stage, it cannot be concluded that the seizure mahazar was drawn and signature was taken on the next date and there is non-complaiance of Section 50 of the NDPS Act. The materials on record disclose that strong prima facie materials are placed to connect the petitioners to the offence in

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question mentioned under Section 37(1)(b) of the NDPS Act. It cannot be concluded that the accused is not guilty of such offence or that there is no likelihood of committing the offence while on bail. When these requirements are not satisfied, the petitioners are not entitled to be released on bail.

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Accordingly, the above point is answered in Negative. The petitions are dismissed .

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Sd/JUDGE

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NR/-

Sahil Mohammed v. the State by

Case brief

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Sahil Mohammed v. the State by

Case brief

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