Dismissed

Mr Joswin Lobo v. State of Karnataka

Karnataka HC18 Aug 2022CRL.P/5159/2022

Case brief

AI extract

What is this about?

In a successive bail petition under Section 439 Cr.P.C. regarding charge under NDPS Act, the High Court of Karnataka rejected the prayer for bail. The Court held that no additional materials were placed to distinguish the earlier rejected application and mere elapsed time in custody was not a ground for relief.

What did the court decide?

Petition rejected; trial Court directed to dispose off the matter as early as possible.

Mr Joswin Lobo Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 18^TH DAY OF AUGUST, 2022

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE H.P. SANDESH

¶5

CRIMINAL PETITION No.5159/2022

¶6

BETWEEN:

¶7

MR.JOSWIN LOBO S/O JOHN LOBO, AGED ABOUT 26 YEARS, R/AT No.21, 8^TH CROSS, NEAR DASARAHALLI, BBMP OFFICE, PARASARA BHARATHI LAYOUT, KEMPAPURA MAIN ROAD, BANGALORE-560 024. …PETITIONER (BY SHRI.NASIR ALI, ADV.) AND: STATE OF KARNATAKA BY BYADARAHALLI POLICE STATION, BENGALURU CITY-560091. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU. …RESPONDENT (BY SHRI.SHANKAR H.S., HCGP)

¶8

THIS PETITION IS FILED UNDER SECTION 439 CR.P.C. BY THE ADVOCATE FOR THE PETITONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO

¶9

¶10

ENLARGE THE PETITIONER ON BAIL IN CR.No.224/2021 OF BYADARAHALLI P.S., BENGALURU CITY FOR THE OFFENCE P/U/S 8(c), 21 (c), 22 (c), 23 (c), 27 (a) OF NDPS ACT, ON THE FILE OF HON’BLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES, BANGALORE.

¶11

THIS PETITION COMING ON FOR ORDERS ON 12.08.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

¶12

ORDER

¶13

Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent/State.

¶14

This is a successive bail petition filed by accused No.1 who is the petitioner in this case. On earlier occasion, this Court had rejected the bail petition of the petitioner in Crl.P.No.6916/2021 vide order dated 02.02.2022.

¶15

The factual matrix of the case of the prosecution is that on receipt of credible information a raid was conducted and the petitioner and the other 4 accused

¶16

¶17

persons were found indulged in trafficking the narcotic drugs i.e., Ecstasy pills, Hashis and LSD strips to the college students, ITBT employees in order to destroy the social heal of the Society and seizure was made in the presence of the panchas and secured the Assistant Commissioner of Police and drawn mahazar from 3 p.m. to 7 p.m. The case of the prosecution against this petitioner is that he was having with him 150 MDMA Ecstasy pills, and 250 grams of Hasis and he had involved in trafficking the narcotic drugs and recovery is to the tune of 56.50 grams and the same is of commercial quantity.

¶18

Learned counsel appearing for the petitioner would vehemently contend that though earlier bail petition was rejected, it will not preclude filing of another bail petition giving more materials, further developments and different consideration. In support of his case he relied upon the judgment of the Hon’ble Apex Court in BABU

¶19

SINGH AND OTHERS VS. STATE OF U.P. (1978 (1)

¶20

SCC 579). The counsel also relied upon the judgment of

¶21

¶22

the Hon’ble Apex Court in STATE OF RAJASTHAN VS. PARMANAND AND ANOTHER (2014) 5 SCC 345 and

¶23

the same is in respect of compliance of Sections 50, 8, 18 and 29 of the Narcotic Drugs and Psychotropic Substances

¶24

Act, 1985 (for short ‘the NDPS Act’) and reversal of conviction and non-compliance of Section 42 and Section 50 (1) of the NDPS Act. The counsel also relied upon the judgment of the Apex Court in DAYALU KASHYAP VS. THE STATE OF CHHATTISGARH (CRIMINAL APPEAL

¶25

No.130/2022 @ SLP (CRL. No.514/2021) and also STATE OF PUNJAB VS. BALDEV SINGH (1999 (6) SCC

¶26

172) to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazatted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The

¶27

¶28

learned counsel also relied upon the judgment in SARIJA

¶29

BANU ALIAS JANARTHANI ALIAS JANANI AND

¶30

ANOTHER VS. STATE (2004) 12 SCC 266 wherein it was held that compliance with Section 42 of the NDPS Act is mandatory and is a relevant fact to be taken into account while considering the bail application. The learned counsel also relied upon the judgment in UNION OF

¶31

INDIA VS. MOH. NAWAZ KHAN (2021) 10 SCC 100

¶32

which was considered in the earlier bail petition. The counsel also relied upon the judgment in UNION OF

¶33

INDIA VS. SHIV SHANKER KESARI (2007) 7 SCC 798

¶34

wherein it was held that for grant of bail, both the conditions prescribed under Section 37 (1) (b) (ii) i.e., satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail, must be satisfied. The counsel also relied upon the judgment in

¶35

BOOTA SINGH AND OTHERS VS. STATE OF HARYANA

¶36

(2021) SCC ONLINE SC 324 which was considered in the earlier bail petition. The counsel also relied upon the

¶37

¶38

judgment of the Hon’ble Supreme Court in UNION OF INDIA VS. MOHANLAL AND ANOTHER (2016) 3 SCC

¶39

379 which was also referred in the earlier bail petition.

¶40

The learned counsel for the petitioner referring to the judgments would vehemently contend that the petitioner is working as an Engineer and he has been falsely implicated in the case. The police have not sent the seized articles to the FSL and he was kept in illegal custody for a period of 5 days and thereafter he has been falsely implicated in the case. The petitioner is also not the occupant of PG from where the above mentioned articles were seized and the petitioner is in custody since 14 months and there is non compliance of mandatory provisions of Sections 42, 52 (3) (a), 52 (4), 52-A(2), 53, 55 and 57 of the NDPS Act and also Sections 154 and 173

¶41

(2) of the Cr.P.C. and the petitioner has made out a ground under Section 37 of the NDPS Act to enlarge him on bail.

¶42

¶43

Per contra, learned counsel appearing for the

¶44

State would vehemently contend that there are no changed circumstances to entertain the successive bail petition. This Court in detail has discussed the grounds which had been urged earlier and no other additional materials are placed before the Court. This Court has dismissed the bail petition only after considering all the materials placed on record. Under the circumstances, question of considering the successive bail petition does not arise.

¶45

Heard the respective counsel appearing for the parties and perused the material on record. Before considering the material and grounds urged in this successive bail petition, this Court has to take note of the earlier order passed by this Court. Learned counsel in support of his argument earlier relied upon several judgments including BOOTA SINGH AND OTHERS VS. STATE OF HARYANA (supra) , STATE OF RAJASTHAN VS. JAGRAJ SINGH @ HANSA (2016) 11 SCC 687,

¶46

¶47

NANSO JOACHIN UDEDIKE VS. STATE OF

¶48

KARNATAKA (CRL.P.No.1298/2020) and UNION OF INDIA VS. MD. NAWAZ KHAN (2021) 10 SCC 100. Learned counsel appearing for the State relied upon the judgments of the Hon’ble Apex Court in NAWAZ KHAN ’s (supra) as well as SUPERINTENDENT, NARCOTICS CONTROLS BUREAU, CHENNAI VS. PAULSAMY,

¶49

(2000) 9 SCC 549 .

¶50

In paragraph 8 of the earlier order it has been discussed in detail with regard to the seizure of 56.50 grams of MDMA pills which was recovered at the instance of the petitioner and apart from that 250 grams of Hashish

¶51

was also recovered and the same was weighed through the electronic scale and the same was also recovered from his pant pocket. A personal search was also made in the presence of Assistant Commissioner of Police who is also a Gazetted Officer. This Court taking note of personal search being made in the presence of Gazatted Officer comes to the conclusion that there is compliance of Section

¶52

¶53

50 of NDPS Act. The Hon’ble Apex Court also in the judgment of UNION OF INDIA VS. BAL MUKUND AND

¶54

OTHERS reported in (2009) 12 SCC 161 discussed with regard to Section 37 of the NDPS Act and also referred the earlier judgment of Paulsamy and come to the conclusion that the material would indicate that there is a material against the petitioner and hence, does not find any reasons to enlarge him on bail. The Hon’ble Apex Court in the recent judgment relied upon by both the parties in the case of NAWAZ KHAN discussed with regard to the scope of the conscious possession of contraband and also summarized the principles how to be ascertained. It is important to note that MDMA pills i.e., 150 number of packets weighing 56.5 grams which is of commercial quantity was seized at the instance of this petitioner and 250 grams of Hashish was seized in the presence of the Assistant Commissioner of Police from the petitioner in the room which is the manufactured drug. Apart from that the Special Enactment is brought into force when the IPC is not sufficient to combat the offences which are against the

¶55

¶56

Society at large and only in order to prevent the menace in the Society, the Special Enactment is brought into force.

¶57

This Court also taken note of Section 37 of the NDPS Act and observed that the petitioner cannot be enlarged on bail unless there is a reasonable ground that the petitioner is not guilty and he is not likely to involve in similar offences in future. No changed circumstances, except the contention that he is in custody since 14 months cannot be a ground to consider the successive bail petition. Hence, there is force in the contention of the learned High Court Government Pleader appearing for the State that all these materials were considered earlier on merits and the bail petition was rejected. Hence I do not find any force in the contention of the learned counsel for the petitioner to enlarge the petitioner on bail in a successive bail petition as no additional materials are placed before the Court as held in the judgment of the Hon’ble Apex Court in BABU SINGH ’s case. No doubt, in SARIJA BANU ALIAS JANARTHANI ALIAS JANANI ’s

¶58

¶59

case the Hon’ble Apex Court held that compliance with Section 42 is mandatory and is a relevant fact to be taken into account while considering the bail application. This Court earlier rejected the bail petition considering the principles laid down in the judgment of Paulsamy’s case which is subsequent to the earlier judgment referred above and technicalities cannot be a ground and the same can be considered during the course of trial. Hence, I find no merit to consider the successive bail petition.

¶60

In view of the above discussions, the petition is

¶61

rejected.

¶62

The trial Court is directed to dispose off the matter

¶63

as early as possible.

¶64

Sd/JUDGE

¶65

Jm/-

Mr Joswin Lobo v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr Joswin Lobo 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

The Icici Lombard General Insurance Co.Ltd., Vs K Saiman S/O. Kondayya

Smt Laxmibai W/O Dattatraya Suvarna Vs Sri Allappa

The Branch Manager Vs Laxmi W/O Late Kumarswamy

Mr Vikas Vs State by Chennamanakere Achukattu Police Station

Mahesh Vs the State of Karnataka by

Umesh N Vs State of Karnataka