Allowed

Shri. Mahadev Channappa Hattarki v. the State of Karnataka

Karnataka HC2 Feb 2024CRL.P/100188/2024

Case brief

AI extract

What is this about?

Accused sought bail in an NDPS case after seizure of 26 ganja plants from his field. The Court held that non-compliance with Sections 42 and 52A of the NDPS Act and doubt over whether seized plants qualified as ganja disengaged Section 37(1)(b) rigours, allowed bail with conditions.

What did the court decide?

Petitioner enlarged on bail on personal bond of Rs.1,00,000 with two sureties, subject to conditions of appearance, no witness tampering, and not leaving trial court jurisdiction without permission.

Shri. Mahadev Channappa Hattarki Vs the State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

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CRIMINAL PETITION NO. 100188 OF 2024 (439)

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BETWEEN:

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SHRI MAHADEV CHANNAPPA HATTARKI AGE: 36 YEARS, OCC. AGRICULTURE, R/O. HALALLI, TQ. ATHANI, DIST. BELAGAVI.

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…PETITIONER

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(BY SRI B. S. SANGATI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA R/BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH. THROUGH POLICE SUB INSPECTOR, AIGALI POLICE STATION.

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…RESPONDENT (BY SMT. GIRIJA S. HIREMATH, HCGP)

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Digitally VIJAYALAXMIM BHAT signed byVIJAYALAXMIM BHAT

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THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING TO RELEASE THE PETITIONER ON BAIL IN CRIME NO.131/2023 DATED 20.11.2023 OF AIGALI POLICE STATION UNDER ATHANI CIRCLE ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI FOR OFFENCES PUNISHABLE U/S 20(A) OF NDPS ACT.

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

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NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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ORDER

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Accused in Crime No.131/2023 registered by the Aigali Police Station, Belagavi District, for the offence punishable under Section 20(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) is before this Court under Section 439 of the Criminal Procedure Code (for short, ‘Cr.P.C.‘) in this petition.

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Heard the learned counsel for the parties.

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FIR in Crime No.131/2023 was registered by

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the Aigali Police Station, Belagavi District, on the basis of the report dated 20.11.2023 submitted by the Smt.Sumalata D. Asangi, PSI attached to the Aigali Police Station, Belagavi District. In the said case, petitioner was arrested on 20.11.2023 and was remanded to the judicial custody. Investigation in the said case is completed and charge sheet has been filed. Bail application filed by the petitioner before the trial Court in Crl.MiscNo.1476/2023 was rejected on 02.01.2024. Therefore, he is before this Court.

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3 - NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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Learned counsel for the petitioner having

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reiterating the grounds urged in the petition, prays to allow the petition.

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Per contra, the learned High Court Government Pleader has opposed the petition. She submits that contraband article ganja seized in the present case is of commercial quantity and therefore, in view the rigour under Section 37(1)(b) of the NDPS Act, the petitioner cannot be granted bail.

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The first informant who was in the Police Station on 20.11.2023, allegedly had received credible information that in the property bearing R.S.No.82/3 situated at Halalli village, Athani Taluka which belongs to the petitioner herein, ganja plants were grown amidst maize crop. On receipt of such information, the first informant conducted a raid to the spot along with her staff and independent panchas and had allegedly seized 26 ganja plants which totally weighed 53 Kgs and 335 grams. The seized contraband article was subjected to panchanama and petitioner who was present in the

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4 - NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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property was arrested and brought to the Police Station. Thereafter, on the basis of report submitted by the first informant, FIR in Crime No.131/2023 was registered against the petitioner for the aforesaid offences.

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From a perusal of the averments made in the report dated 20.11.2023 submitted by the first informant, which had resulted in registering FIR, it is seen that the mandatory requirement of Section 42 of the NDPS Act has not been complied in the present case. The first informant had not reduced the information into writing and not entered the same in the prescribed register nor has forwarded such information to her higher officer. Investigation in the case is completed and charge sheet has been filed. The charge sheet material would go to show that the Investigating Officer has not prepared an inventory of the seized contraband articles. The seized contraband articles are not produced before the jurisdictional Magistrate along with inventory as required under Section 52A of the NDPS Act. Even sample of the contraband

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5 - NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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article is not drawn in the presence of the jurisdictional Magistrate.

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The object behind introducing Section 52A of

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the NDPS Act is to ensure fair play in the investigation. From a perusal of the report of first informant, it is seen that the ganja plants have been weighed along the stems, roots, leaves and other part of the plant. Some of the plants are wet plants. Therefore, a serious doubt arises as to, whether the contraband articles seized can be considered as ganja within the meaning of Section 2(iii)(b) of the NDPS Act. Though, Section 37(1)(b) of the NDPS Act provides for certain rigours for granting bail to an accused who is involved in a case registered for the offence punishable under the provisions of NDPS Act involving commercial quantity of contraband article, the same cannot he made applicable to the present case, since the prosecution has not complied with the mandatory requirement of Section 42 of the NDPS Act and there is a total non compliance of Section 52A of the NDPS Act. In addition to the same, as stated hereinabove, a serious

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6 - NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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doubt arises as to whether the seized contraband articles can be considered as ganja within the meaning of Section 2(iii)(b) of the NDPS Act. More so, when the sample has not been drawn in compliance of requirement of Section 52A of the NDPS Act. Petitioner is an agriculturist, aged about 36 years, who is married and having children. He has no criminal antecedents. Investigation in the case is completed and charge sheet has been filed. Allegation against the petitioner is required to be proved in the full fledged trial. Under the circumstances, the prayer made by the petitioner for grant of regular bail is required to be answered in the affirmative. Accordingly the following:

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ORDER

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Petition is allowed. The petitioner is directed to be enlarged on bail in Crime No.131/2023 registered by the Aigali Police Station, Belagavi District, for the offence punishable under Section 20(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, subject to the following conditions:

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7 - NC: 2024:KHC-D:2331 CRL.P No. 100188 of 2024

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(i) The petitioner shall execute personal bond for a sum of Rs.1,00,000/- with 2 sureties for the like-sum to the satisfaction of the jurisdictional Court;

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(ii) 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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(iii) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

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(iv) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.

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Sd/JUDGE

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AC,CKK

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List No.: 1 Sl No.: 29

Shri. Mahadev Channappa Hattarki v. the State of Karnataka

Case brief

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Shri. Mahadev Channappa Hattarki v. the State of Karnataka

Case brief

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