Allowed

Mohammed Shiyad K P v. the State by

Karnataka HC10 Nov 2023CRL.P/8685/2023

Case brief

AI extract

What is this about?

The High Court allowed a bail petition under Section 439 Cr.P.C. Despite the alleged involvement of commercial quantity of methamphetamine under the NDPS Act, the Court granted bail due to police non-compliance with mandatory procedural safeguards under Sections 50 and 52A of the Act and the petitioner's lack of criminal antecedents.

What did the court decide?

Petitioner enlarged on bail by executing a personal bond of Rs. 1,00,000 with two sureties, one being local, conditioned to appear regularly and not to interfere with witnesses.

Mohammed Shiyad K P Vs the State by — Narcotics (NDPS) | Karnataka HC (2023)

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NC: 2023:KHC:40310 CRL.P No. 8685 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRIMINAL PETITION NO. 8685 OF 2023

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BETWEEN:

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MOHAMMED SHIYAD K.P, S/O MUSTHAFA K.K, AGED ABOUT 26 YEARS, R/A SWADIKA SADAN, PK HOUSE, KOYIYODE P.O, KADACHIRA VIA KANNUR, KERALA STATE - 670 621.

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PRESENTLY R/A PMR OYO, ITPL ROAD, WHITE FIELD, BANGALORE - 560 066.

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…PETITIONER

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(BY SRI. MUZAFFAR AHMED, ADVOCATE)

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AND:

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Digitally signed by NANDINI MS Location: HIGH COURT OF KARNATAKA

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THE STATE BY BANASWADI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE - 01.

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…RESPONDENT

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(BY SRI. JAIRAM SIDDI, HCGP)

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THIS CRL.P IS FILED U/S.439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.129/2023 REGISTERED BY BANASWADI POLICE STATION, BENGALURU FOR THE OFFENCE P/U/S 8(c) AND 22(C) OF N.D.P.S. ACT

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2 - NC: 2023:KHC:40310 CRL.P No. 8685 of 2023

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PENDING ON THE FILE OF XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS), BENGALURU IN SPL.C.NO.1678/2023.

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

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ORDER

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Accused in Spl.Case No.1678/2023 pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge at Bengaluru arising out of Cr.No.129/2023 registered by Banasawadi Police Station, Bengaluru City for offence under Sections 8(c) and 22(b) of Narcotic Drugs and Psychotropic Substances, Act, (hereinafter referred to as "the Act" for short) 1985, is before this Court under Section 439 of Cr.P.C.

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Heard the learned counsel for the parties.

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On the basis of the report dated 31.03.2023 submitted by Nagaraju Naidalagi, Sub-Inspector of Police, Station House Officer, Banaswadi Police Station had registered FIR in Cr.No.129/2023 against unknown person.

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NC: 2023:KHC:40310 CRL.P No. 8685 of 2023

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Thereafter, the informant and his staff had allegedly gone to the spot where suspect was making attempts to sell the contraband articles to the public. The suspected person was apprehended and from his possession 52 gms of contraband article which allegedly was MDMA was seized and the seized contraband article was subjected to panchanama. On enquiry, the apprehended accused revealed his name as Mohammed Shiyad. The apprehended accused and seized contraband article were brought to the police station and subsequently, the apprehended accused was produced before the Jurisdictional Court and remanded to the judicial custody.

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Investigation in the case is complete and charge sheet has been filed. The bail application filed by the petitioner before the trial Court in Crl.Misc.8009/2023 was rejected on 02.09.2023. Therefore, he is before this Court.

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NC: 2023:KHC:40310 CRL.P No. 8685 of 2023

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Learned counsel for the petitioner submits that the petitioner who has no criminal antecedents, is in custody from 31.03.2023 onwards. The material on record would prima facie show that Sections 50 and 52A of the Act has not been complied with by the police in the present case. Investigation in the case is complete and charge sheet has been filed. The contraband article seized from the petitioner has now tested positive to the drug known as methamphetamine. He accordingly prays to allow the petition.

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Per contra, learned HCGP has opposed the bail application. He submits that the contraband article seized from the petitioner is of commercial quantity and therefore, in view of Section 37 (1)(b) of NDPS Act, the petitioner is not entitled for bail.

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On credible information, the petitioner was apprehended on 31.03.2023 and from his possession, 52gms of contraband article which is allegedly MDMA was

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5 - NC: 2023:KHC:40310 CRL.P No. 8685 of 2023

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seized. From a perusal of the seizure mahazar, it is seen that the petitioner was holding the contraband article in a plastic cover in his hand. As per the averments in the seizure mahazar, he had handed over the same to the police, after he was apprehended. Since the seizure was from the person of the petitioner, the compliance of requirement of Section 50 of the Act becomes mandatory. From a perusal of the seizure mahazar, it is seen that the requirement of Section 50 of the Act has not been complied with by the police.

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The seized contraband article was subjected to panchanama on 31.03.2023 itself. However, there is inordinate delay in preparing the inventory of the seized contraband article and getting the inventory certified by the jurisdictional magistrate as required under Section 52A of the NDPS Act. The material made available would go to show that the jurisdictional Magistrate has certified the inventory on 28.04.2023 which is almost after a period of four weeks from the date of seizure.

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The seized contraband article was forwarded to

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the Forensic Science Laboratory for the purpose of chemical examination. From a perusal of the seizure mahazar as well as the property form, it is seen that the contraband article was weighed along with the zip-lock plastic cover and the total weight of the contraband article along with the zip-lock plastic cover was found to be 52 gms. The contraband articles which was forwarded to FSL for the purpose of chemical examination has responded positively to the drug known as Methamphetamine. 50 gms and above quantity of drug known as 'Methamphetamine' is considered as commercial quantity. Considering the fact that the contraband article seized from the petitioner was weighed along with the zip lock plastic cover, it becomes doubtful whether the actual weight of the contraband article seized was 50 gms and above.

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Section 37(1)(b) of the NDPS Act provides for certain rigors for grant of bail to the accused persons

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involved in committing offences under the

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provisions of the NDPS Act, wherein the commercial quantity of contraband articles is involved. Therefore, strict compliance of the provisions of the Act is expected from the investigating officer in cases registered for the offences under NDPS Act. The petitioner who has no criminal antecedents is in custody from 31.03.2023. Investigation in the case is complete and charge sheet has been filed. Under the circumstances, I am of the opinion that the petitioner has made out a case for grant of regular bail. Accordingly, the petition is allowed.

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ORDER

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The Criminal Petition is allowed .

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The petitioner is directed to be enlarged on bail in Crime No.129/2023 of Banaswadi Police Station registered

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for the offences punishable under Sections 8(c), 22(c) of NDPS Act, subject to the following conditions:

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a) Petitioner shall execute personal bond for a sum of Rs.1,00,000 ( Rupees One Lakh

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NC: 2023:KHC:40310 CRL.P No. 8685 of 2023

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only) with two sureties and out of the two one shall be a local surety for the likesum to the satisfaction of the jurisdictional Court;

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b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;

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c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses.

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SD/JUDGE

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CT: BHK

Mohammed Shiyad K P v. the State by

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Mohammed Shiyad K P v. the State by

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