NCB sought cancellation of regular bail granted on medical grounds to a pharmacist accused of exporting commercial-quantity Clonazepam via courier. The High Court held the Special Court failed to record the Section 37 NDPS twin-condition satisfaction, set aside the bail order, cancelled bail, and remitted the application for fresh consideration.
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NC: 2024:KHC:19619 CRL.P No. 3291 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA CRIMINAL PETITION NO. 3291 OF 2024
BETWEEN:
…PETITIONER
Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA
(BY SRI. RAJASHEKAR S., Sr. CENTRAL GOVERNMENT COUNSEL)
AND:
…RESPONDENT
(BY SRI. AKHILESH B.,ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2) CR.PC PRAYING TO SET ASIDE THE ORDER DATED 02.12.2023 PASSED IN CRIMINAL MISC.NO.736/2023 IN CR.NO.48/1/11/2022 OF NCB, BENGALURU REGISTERED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 8(C) R/W 22(B), 23(C), 27-A, 28 AND 29 OF NDPS ACT, PENDING IN SPL.C.C.NO.490/2023, ON THE FILE OF XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS), BENGALURU AND THEREBY CANCEL THE BAIL GRANTED TO HIM AND GRANT SUCH OTHER AND FURTHER RELIEF'S AS THIS HONBLE COURT DEEMS FIT AND PROPER UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS CRIMINAL PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
NC: 2024:KHC:19619 CRL.P No. 3291 of 2024
ORDER
The petitioner - complainant is before this Court seeking cancellation of bail under Section 439(2) of Cr.P.C. in Crime No.48/1/11/2022 of NCB, pending in Spl C.C.No. 490 of 2023 on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, registered for the offences punishable under Sections 8(c) read with Sections 22(b), 23(c), 27-A, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').
is the psychotropic substance of commercial quantity. The parcel was booked to be exported to Saudi Arabia in the name of accused No.2. On interrogation of accused No.2, it was revealed that a parcel was booked by respondent - accused No.1 by misusing his pharmaceutical license. Later, he was apprehended on 25.08.2022 and subjected to interrogation. Initially, he sought for regular bail. The Special Court rejected his prayer.
submitted that there was no prayer for regular bail and the prayer was for interim bail. The Special Court could not have granted regular bail, ignoring the seriousness of offences and also in view of the bar for grant of bail under the special enactment, that too, when such prayer for regular bail was already rejected by this Court. Serious allegations of misusing the pharmaceutical license by the respondent is made and during investigation, it was revealed that 27 such suspicious exports were made by him. Three criminal cases were registered against the respondent under various provisions of IPC. Of course, it was ended in acquittal. Even medical records produced by the respondent shows that he was advised for taking regular follow up and apart from that, there are no compelling reasons for releasing the respondent on bail.
1 (1978) 1 SCC 118
of Maharasthra and another2 , seeking cancellation of bail, on the ground that the order in question was passed by the Special Court without application of mind. Hence, he prays for allowing the petition.
2 (2001) 6 SCC 338
illegality in the order. Therefore, he prays for dismissal of the petition.
“Whether the petitioner has made out any ground for cancellation of bail under Section 439(2) of Cr.P.C.?”
My answer to the above point is in ‘Affirmative’ for the following:
R E A S O N S
pharmacist and it was found that he has managed to send a parcel containing 357 grams of Clonazepam tablet, which is a psychotropic substance of commercial quantity, to Saudhi Arabia in the name of accused No.2. Admittedly, accused No.2 is working under accused No.1. But it is accused No.1, who is pharmaceutical license holder. When it is alleged that the accused has dealt with commercial quantity of Clonzepam, Section 37 of NDPS Act would come into operation and the Court before releasing the accused on bail, should record its satisfaction regarding the twin conditions referred to in Section 37(1)(b)(ii) of NDPS Act. On going through the order impugned, the Court has not recorded such satisfaction in the entire order, but its main focus was on the medical record furnished by the learned counsel for the respondent.
condition was stable and it was recommended to review his condition after three weeks.
this Court do not give an impression that there is any compelling reason to enlarge the accused on bail or to form an opinion that he is in such a serious condition and he is to be enlarged on bail. The fact that the respondent is granted interim bail from time to time and the respondent had appeared before the Court and co-operated with the investigation has weighed largely with the Special Court to pass
NC: 2024:KHC:19619 CRL.P No. 3291 of 2024
the order grating regular bail even after noting that the commercial quantity of Clonazepam was seized and there are strong prima facie materials.
the respondent on bail solely on medical grounds, when no such materials are made available before this Court. The Court has also not recorded its satisfaction about the requirement of Section 37(1)(b)(ii) of NDPS Act, except saying that, 'no doubt the contraband articles seized in this case is commercial quantity, but on considering the health condition of the petitioner and since the investigation of the case is concluded, the petitioner is to be enlarged on bail'. Since the Court has not taken into consideration the relevant materials on record and the seriousness of the offences, in light of the bar contained under Section 37(1)(b)(ii) of NDPS Act to release the accused on bail, I am of the opinion that it is a fit case to recall the order canceling the bail and request the Special Court to consider the materials on record once again, since it is the specific submission made by the learned counsel for the respondent that the Court has considered other medical records which shows the seriousness of the health condition of the respondent.
NC: 2024:KHC:19619 CRL.P No. 3291 of 2024
ORDER
(i) The petition is allowed.
(ii) The order dated 02.12.2023 passed in
Crl.Misc.No.736/2023 in Crime No.48/1/11/2022 of NCB, Bengaluru, is hereby set aside and the bail granted to the respondent is cancelled and he is directed to surrender before the Special Court within ten (10) days from today, failing which, the Special Court is at liberty to secure his presence, with due process of law.
(iii) The Special Court is required to consider the application once again and it may give its findings afresh, in light of the discussions held above. It is made clear that the observations made above shall not come in the way for the Special Court while deciding the matter afresh.
Registry is directed to communicate the order to the Special Court for information and for necessary action.
Sd/JUDGE
BGN & SPV, List No.: 1 Sl No.: 1
1 issue framed by the court
Whether the Special Court's order granting regular bail to the accused without recording satisfaction under Section 37(1)(b)(ii) NDPS Act warranted cancellation of bail under Section 439(2) Cr.P.C.?
Colour shows how this judgement treated each authority
Gurcharan Singh and Others v State (Delhi Administration)Referred
(1978) 1 SCC 118 · Who else cites this
Puran v Rambilas and another with Shekhar and another v State of Maharashtra and anotherReferred
(2001) 6 SCC 338 · Who else cites this
7 provisions across 2 enactments
Union of India Narcotics Control Bureau Bengaluru Zonal Unit
Thaha Ummer K S
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
