This High Court rejected a criminal petition for bail under Section 439 Cr.P.C. filed by an accused charged with cultivating ganja. The court held that the seized quantity of 27.4 kg was commercial and, relying on Supreme Court precedent, the accused is not entitled to bail.
Petition for bail under Section 439 Cr.P.C. is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC-D:10106 CRL.P No. 101894 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL PETITION NO.101894 OF 2023
BETWEEN:
SRI APPASAB, S/O BALAPPA SANADI, AGE: 53 YEARS, OCC: AGRICULTURE, R/O. MALABAD TAL: ATHANI, DIST: BELAGAVI.
…PETITIONER
(BY SRI. PRASAD PATIL, ADVOCATE)
AND:
CHANDRASHEKARLAXMANKATTIMANI Digitally signed byCHANDRASHEKARLAXMANKATTIMANIDate: 2023.09.0815:00:28 +0530
THE STATE OF KARNATAKA, THROUGH PSI ATHANI POLICE STATION, NOW R/BY STATE PUBLIC PROSECTOR, HIGH COURT OF KARNATAKA DHARWAD, BENCH AT DHARWAD.
…RESPONDENT
(BY SMT.GIRIJA S.HIREMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C. SEEKING THAT TO GRANT BAIL TO THE PETITIONER / ACCUSED IN PS CRIME NO. 161/2023 REGISTERED BY THE RESPONDENT ATHANI POLICE STATION FOR THE OFFENCES P/U/SEC. 20(a) (i) (b) OF NARCOTIC DRUGS PSYCHOTROPIC SUBSTANCES ACT, 1985.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
NC: 2023:KHC-D:10106 CRL.P No. 101894 of 2023
ORDER
Petitioner who is the sole accused has filed this petition under Section 439 of Code of Criminal Procedure (for short, ‘the Cr.P.C.’) to grant him regular bail in Crime No.161/2023 of Athani Police Station for the offences punishable u/secs.20(a) (i) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’).
NC: 2023:KHC-D:10106 CRL.P No. 101894 of 2023
of commercial quantity. Since the charge sheet is filed, his custodial presence is no longer required. The total quantity of ganja includes roots and stems. The petitioner is in judicial custody since 16.05.2023. The petitioner is ready and willing to abide by any of the conditions that may be imposed and prays to allow the petition.
petitioner has relied upon the following decisions/orders.
that on 16.05.2023 at 9.00 a.m., complainant i.e. PSI,
1 2023 SCC Online SC 346
(Law and Order) Athani Police Station received credible information regarding illegal cultivation of ganja in the land of petitioner/accused. Immediately he brought this fact to the notice of Dy.S.P., Athani by submitting report (memo). He requested the Taluka Executive Magistrate, Athani to be present at the time of raid in his capacity as the gazetted officer. He also requested the Block Education Officer to depute 2 staff as panchas to the raid.
4.1 They reached the spot at 11.45 a.m. along with weighing machine and other material. They verified the spot which is land in R.S.No.159/1 of Malabad village of Athani Taluk. They found petitioner/accused in the land and on sighting the raid party, he started running. He was apprehended and on enquiry, he disclosed that the said land belongs to him. On search, they found ganja being grown inside the sugarcane crop. In all, 32 ganja plants were found. They were cut and removed and weighed, which found to be 46 kg 580 grams. The same was seized. For the purpose of chemical examination 100 grams of
NC: 2023:KHC-D:10106 CRL.P No. 101894 of 2023
flowering seeds and leaves were collected separately. A mahazar was drawn and photographs were taken. Along with seized ganja, the petitioner/accused was brought to the police station.
4.2 In respect of the said incident, complaint was lodged by the PSI. Based on the complaint, case was registered in Crime No.161/2023 against the petitioner/accused and investigation was continued. The sample was sent to FSL for chemical examination and the report is awaited. After conducting detailed investigation, charge sheet is filed against the petitioner/accused for the offence punishable u/sec.20(a)(b) of NDPS Act. There is prima facie material to connect the accused with the alleged crime. Dried weight of seized ganja is 27 kg 400 grams which is commercial quantity. In the light of prohibition contained in Section 37, petitioner is not entitled for bail and prays to reject the petition.
5. Heard arguments and perused the record.
definite case of the prosecution that petitioner/accused is the owner of land in R.S.No.159/1 of Malabad village of Athani Taluk. On receipt of credible information regarding illegal cultivation of ganja in the said land, the complainant i.e. PSI along with Taluka Executive Magistrate and 2 government officials being the employees of BEO raided the land and found petitioner/accused in the said land. He was apprehended. On search, in the midst of sugarcane crop, they found ganja being cultivated. In all, 32 ganja plants were found. They were seized through mahazar. The weight of the seized ganja is 27 kg 400 grams, which is commercial quantity.
stems and roots. Having regard to the definition of ganja, at this stage it cannot be said that the seized material is not of commercial quantity. At the stage of considering bail petition, the case of the prosecution as reflected in the charge sheet is requires to be taken into consideration. Therefore, as per Section 37(1)(b)(ii), it is for the accused to satisfy the Court that he is not guilty of such offence and that he is not likely to commit any offences while on bail.
and therefore, this Court is of the considered opinion that
the petitioner is not entitled for bail.
9. So far as the citations/orders relied upon by the
learned counsel for petitioner/accused, they are with reference to the facts and circumstances therein and they have no application to the present case. In the result, the petition fails and accordingly, the following:
ORDER
Petition filed U/sec.439 Cr.P.C. is rejected.
CLK List No.: 1 Sl No.: 21
Sd/JUDGE
2 issues framed by the court
Whether bail is grantable to the petitioner accused of cultivating cannabis in commercial quantity under Section 20(a)(i)(b) of the NDPS Act.
Whether the commercial quantity of seized ganja affects the entitlement to regular bail under Section 37(1)(b)(ii) of the NDPS Act.
Colour shows how this judgement treated each authority
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5 provisions across 2 enactments
SRI APPASAB, S/O BALAPPA SANADI
STATE OF KARNATAKA
J.M. KHAZI
As recorded by the court registry
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