Anticipatory bail sought by accused No.1 in an NDPS case where 56.7 kg of ganja was seized from a godown at the instance of co-accused caught with ganja on a scooter. The court held it too premature to exclude the prosecution material, noting the godown was constructed by the petitioner on his daughter's land, and dismissed the petition.
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NC: 2024:KHC:36617 CRL.P No. 8104 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 8104 OF 2024
BETWEEN:
Digitally signed by SWAPNA V Location: high court of karnataka
MR. FARZU S/O ABDUL SATTAR AGED ABOUT 50 YEARS RESIDING AT NO. 212/6 1ST MAIN, 6TH CROSS MAHADESHWARA MAIN ROAD SHANTINAGAR, MYSURU - 570 019 (BY SRI. RAHAMATHULLA KOTHWAL, ADVOCATE)
AND:
…PETITIONER
STATE OF KARNATAKA BY UDAYAGIRI POLICE STATION MYSURU CITY - 570 019 REPRESENTED BY SPP HIGH COURT UNIT BANGALORE - 560 001
…RESPONDENT (BY SMT. ASMA KOUSER, ADDL.S.P.P.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 CR.P.C PRAYING TO GRANT AN ANTICIPATORY BAIL TO THE PETITIONER IN CR.NO.6/2024 REGISTERED BY THE UDAYAGIRI POLICE STATION IN SPL.C.NO.136/2024 FOR THE OFFENCE PUNISHABLE UNDER SECTION 20(B)(ii)(c) OF NDPS ACT, PENDING BEFORE THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT MYSURU.
THIS CRIMINAL PETITION, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL ORDER
The petitioner-accused No.1 is before this Court seeking grant of anticipatory bail in Crime No.6 of 2024 of Udayagiri Police Station, pending in Spl.C.No.136 of 2024 on the file of the learned Principal District and Sessions Judge at Mysuru, registered for the offences punishable under Section 20(B)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), on the basis of the first information lodged by the informant K C Poovaiah.
way laid it. They found a black plastic cover kept near foot rest of the scooter. It was having pungent smell and the informant confirmed that it is ganja. The contraband was seized in the presence of panchas under the mahazar. Thus it was found that the persons proceeding on the scooter were in possession of ganja and they are arrayed as accused Nos.2 and 3. On questioning accused Nos.2 and 3, they said to have referred the name of the petitioner as he is having the godown and stored approximately 50 kgs of ganja. Accordingly, they led the informant to the shed where he found and seized 56 kgs of ganja which was stored in 3 plastic bags. It is only on the basis of these allegations, the name of the petitioner is arrayed as accused No.1.
owner of the godown nor that he was in possession of the said godown. Prima facie , it was accused Nos.2 and 3 who were in possession of the godown in question, where the contraband was seized.
1 2022 SCC Online SC 891
2 2020 SCC Online SC 882
absolutely no material to connect the petitioner to the offence in question.
of Gujarat and another3 , to buttress his contention to ignore the confessional statement of the co-accused. He also referred to the decision of the Hon'ble Apex Court in Surinder Kumar Khanna Vs Intelligence Officer Directorate of Revenue Intelligence4 , to contend that even prior to Tofan Singh (supra), the Courts were not placing reliance on the confessional statement of the co-accused and it is held that the Court cannot start with the confession of the co-accused to bring home the charges against the accused and that it must begin with other evidence adduced by the prosecution. Therefore, it is the contention of the learned senior advocate that if the confessional statement is taken away, there is absolutely nothing on record to allege commission of any of the offence by the petitioner. Hence, he prays for allowing the
3 2024 SCC Online SC 572
4 (2018) 8 SCC 271
NC: 2024:KHC:36617 CRL.P No. 8104 of 2024
petition as the petitioner is ready and willing to abide by any of the conditions that would be imposed by this Court.
Prosecutor opposing the petition submitted that accused Nos.2 and 3 were caught red handed while in possession of 1 kg of ganja on 16.01.2024 and they led the police to the godown owned by the present petitioner, where commercial quantity of 56.700 kgs of ganja was recovered. On the very same day, FIR came to be registered. Further investigation was undertaken. Till today, the petitioner is absconding.
that the prosecution is not placing reliance only on the statement of accused Nos.2 and 3 recorded under Section 67 of NDPS Act, but on the basis of their statement, accused have led the police to the godown where the incriminating materials i.e., commercial quantity of contraband was seized. Moreover the statement of Taushiba Bhanu, who is the daughter of the petitioner was recorded by the Investigating Officer, wherein, she categorically stated that it was the petitioner who constructed the godown and was in possession of the same.
Under such circumstances, the contention taken by the petitioner cannot be accepted.
“Whether the petitioner is entitled for grant of bail under Section 438 of Cr.P.C.?”
My answer to the above point is in ‘Negative’ for the following:
R E A S O N S
of anticipatory bail on the apprehension of being arrested. Learned senior advocate contended that the confessional
statement of the co-accused cannot be relied on to connect the petitioner to the offence in question and placed reliance on few decisions of the Hon'ble Apex Court.
12. In Surinder Kumar Khanna (supra), the Hon'ble
Apex Court has considered the correctness of the judgment passed by the High Court after considering the judgment of conviction passed by the Trial Court and confirmed by the High Court. Therefore, it is after full-fledged trial, the Court has considered as to whether the statements of the co-accused recorded under Section 67 of NDPS Act could be taken into consideration to bring home the guilt of the co-accused. The Court has held that it cannot start with the confession statement of the co-accused, but it should begin with the other evidence adduced by the prosecution to form an opinion with regard to the quality and effect of said evidence.
NC: 2024:KHC:36617 CRL.P No. 8104 of 2024
Act, there was no other incriminating materials which was forthcoming and therefore, upheld grant of bail to the accused.
petitioner was recorded by the Investigating Officer, wherein, she has categorically stated that she is the owner of the land in question, upon which, her father i.e., the petitioner constructed a shed/godown. This piece of statement of the witness cannot be ignored at this stage.
NC: 2024:KHC:36617 CRL.P No. 8104 of 2024
ORDER
The Criminal Petition is dismissed.
Sd/(M G UMA) JUDGE
*bgn/-
List No.: 3 Sl No.: 11
1 issue framed by the court
Whether the petitioner was entitled to anticipatory bail under Section 438 Cr.P.C. in an NDPS case involving commercial quantity of ganja recovered from a godown.
Colour shows how this judgement treated each authority
Narcotics Control Bureau Vs Mohit AggarwalExplained¶13
2022 SCC Online SC 891 · Who else cites this
Tofan Singh Vs State of Tamil NaduReferred
2020 SCC Online SC 882 · Who else cites this
Rajkumar Hariram Gameti Vs State of Gujarat and anotherExplained¶14
2024 SCC Online SC 572 · Who else cites this
Surinder Kumar Khanna Vs Intelligence Officer Directorate of Revenue IntelligenceExplained¶12
(2018) 8 SCC 271 · Who else cites this
3 provisions across 2 enactments
Farzu S/o Abdul Sattar
State of Karnataka by Udayagiri Police Station, Mysuru
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
