Kparagume Nzorosa Glody Vs State of Karnataka

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NC: 2025:KHC:12757 CRL.P No. 11978 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRIMINAL PETITION NO. 11978 OF 2024

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BETWEEN:

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KPARAGUME NZOROSA GLODY, S/O KPARAGUME ATOLOYO ALEXANDER, AGED ABOUT 30 YEARS, R/O NO. 1198, 4TH STAGE, 1ST BLOCK, JUPITER ROAD, 5TH MAIN ROAD, WARD NO. 175, BDA LAYOUT BDM, BENGALURU CITY, LAKSHMIPURA CROSS, NOORJAN GARDEN, HESARAGHATTA MAIN RAOD, BENGALURU - 560 097.

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…PETITIONER

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(BY SRI. PAVAN KUMAR G.,ADVOCATE)

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AND:

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Digitally signed by NANDINI MS Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA, BY HENNUR P S, REP SPP, HIGH COURT BUILDING, BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI.K.NAGESHWARAPPA.,HCGP)

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THIS CRL.P FILED U/S 439 CR.PC (FILED U/S 483 BNNS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.C.NO.669/2023 (CR.NO.280/2022 OF HENNUR P.S.,) ON THE FILE OF XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES AT BENGALURU (CCH-

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NC: 2025:KHC:12757 CRL.P No. 11978 of 2024

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FOR THE OFFENCE P/U/S 8(c), 22(c) OF NDPS ACT AND SEC. 14 OF FOREIGNERS ACT, 1946.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This is the successive bail application filed under Section 439 of Cr.PC by the accused in Spl.C.No.669/2023, pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru (CCH-33), arising out of Crime No.280/2022 registered by Hennur Police Station, Bengaluru, for offences punishable under Sections 8(c), 22(c) of Narcotic Drugs & Psychotropic Substances Act (for short 'NDPS Act') and Sections 14 of Foreigners Act,1946.

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Heard the learned counsels for the parties.

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Based on the credible information received, first informant along with his staff had raided the alleged spot where attempt was being made by a person to sell the contraband article to the public on 15.09.2022 at about 7.30 pm and petitioner was apprehended from the alleged spot and from his possession contraband article allegedly MDMA crystal weighing

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NC: 2025:KHC:12757 CRL.P No. 11978 of 2024

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100 gms and brown colour MDMA weighing 150 gms was recovered and subjected to panchanama. Thereafter, FIR in Crime No.280/2022 was registered against the petitioner for the aforesaid offence. After completing investigation, charge sheet has been filed against him. Bail application filed by the petitioner in Crl.Mis.No.6656/2024 before the Jurisdictional Sessions Court was rejected on 13.08.2024. Therefore, he had approached this Court in Crl.P.No.8842/2023 which was dismissed on merits by order dated 30.10.2023 passed by this Court. Petitioner is before this Court in this successive bail application on the ground that there is a delay in trial.

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Learned counsel for the petitioner submits that petitioner is in custody from 15.09.2022 and till date, trial in the case has not commenced. He submits that charges were framed in the present case on 02.03.2024 and on the same day, witness summons was also issued. However, till date, prosecution has not kept any one of the charge sheet witnesses present before the Court for examination.

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Per contra, learned High Court Government Pleader who has opposed the petition, does not dispute the submission made by the learned counsel for the petitioner. He submits that

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NC: 2025:KHC:12757 CRL.P No. 11978 of 2024

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petitioner is a person with criminal antecedents and therefore, his petition was dismissed earlier. Accordingly, he prays to dismiss the petition.

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Petitioner had earlier approached this Court in Crl.P.No.8842/2023 which was dismissed by this Court by order dated 30.10.2023 considering the fact that seized contraband article is of commercial quantity and also petitioner is a person with criminal antecedents involved in two other similar cases registered by the very same police station. Petitioner is in custody in the present case from 15.09.2022.

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Learned counsel for the petitioner has brought to the notice of this Court that, though charges were framed before Trial Court on 02.03.2024 and witness summons was also issued on the very same day, till date, prosecution has failed to keep any one of the charge sheet witnesses present before the Court for examination.

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Learned High Court Government Pleader submits that, the charge sheet witnesses who were summoned by the Court have not appeared before the Court for administrative

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NC: 2025:KHC:12757 CRL.P No. 11978 of 2024

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reasons and attempts shall be made to secure their presence at

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the earliest for the purpose of their examination.

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The Hon'ble Supreme Court in the case of JAVED

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GULAM NABI SHAIKH VS. STATE OF MAHARASHTRA AND

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ANOTHER - 2024 SCC ONLINE SC 1693 at paragraph No.19, has observed as follows:

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"19. If the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

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The Hon'ble Supreme Court in the case of Mohd

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Muslim @ Hussain v/s State (NCT of Delhi) - 2023 SCC

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ONLINE SC 352 at paragraph No.21, has observed as follows:

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"21. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction

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which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."

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Petitioner is a foreigner, who is facing multiple criminal cases registered against him for offences punishable under NDPS Act. In addition to the offences punishable under NDPS Act in the present case, he is also charge sheeted for offences punishable under Foreigners Act.

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In the present case, petitioner is in custody from 15.09.2022. There is absolutely no progress before the Trial Court after charges were framed against the petitioner on 02.03.2024. Under such circumstances, without going to the merits and demerits of the case, petitioner prayer for grant of regular bail need to be considered in view of the delay in trial.

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In the case of Babul Khan and Another v/s

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State of Karnataka - 2020 SCC ONLINE Kar 3438 this Court has laid down certain guidelines which are required to be taken into consideration in a case relating to the bail application of a foreigner. The said guidelines reads as follows:

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" (1) As soon as the offence under Foreigners Act and other Laws is detected and there is a strong prima facie material to show that the detected person is a foreign national, and if he has no Passport or Visa, or if the Visa is expired, and he has no right to stay in Indian Territory, proceedings shall be immediately started to deport him to his nation, without unnecessary delay, from the date of registration of FIR against such person. (2) The jurisdictional police have to immediately take steps to inform the concerned competent authorities to initiate proceedings to deport such foreign national to his mother country visa-a-vis other competent authorities also share the details of such person amongst themselves and concerned jurisdictional Court.

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(3) If the Court refuses to grant bail to those persons (foreign nationals) in any criminal case, the Court shall keep such person in regular jail, till the disposal of the case.

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(4) If for any reason the Court grants bail including anticipatory bail, in any criminal case where the offender is a foreign national, and the offences are under the Foreigners Act and/or also under any other Laws for the time being in force, and their Visa is cancelled or lapsed, or they have no Passport, or they are illegal migrants, then the Courts shall specifically order to keep them in detention centers, unless the competent authority has passed any order under section 3(2)(a) to (f) of Foreigners Act, 1946, or till further orders of the court or till they are deported to their mother country.

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(5) If the case registered against the foreign nationals, ended in conviction, they shall be ordered to be kept in regular prison of the State till they serve their sentence, and after serving the sentence, they shall be kept in detention centers till, they are deported to their country.

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(6) If the case ends up in discharge, release of the accused or acquittal, and their nationality is in dispute before the competent Tribunal, they shall be ordered to be kept in detention centers till they are deported to their country unless they have any right or otherwise entitled to remain in India, or the competent authority has passed any orders under section 3(2)(a) to (e) of Foreigners Act 1946, the acquittal, discharge or release of the accused is no bar for the

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concerned competent authorities to question the nationality of that person before the competent Tribunal.

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(7) The Public Prosecutors, the defence Counsel and the Courts shall make all their efforts to expeditiously deal with such cases by giving priority, for its early disposal, so as to enable other competent authorities to take appropriate steps under the facts and circumstances of each case for deportation of such foreign national (accused) as early as possible. The Court may also if permissible under law, and applicable to the facts and circumstances of a case may invoke sections 265A to 265L under chapter XXI (A) of Code of Criminal procedure, after following due procedure. (8) As far as possible where a foreign national is involved in a case, the courts shall make their endeavor to record evidence and write the judgment in English Language, if the accused in such case is not conversant with the local language. (9) The Central Government and the State Governments shall take all necessary steps to establish as many as necessary Detention Centers, at Cities, Districts and Taluka places as per the detention Center Manual referred to in this judgment, with all necessary basic facilities, as per the detention centre manual, as per the directions and guidelines of the Hon'ble Apex Court in the case of Upadhyaya Vs State of A.P. and others reported in (2017)15 SCC 337, so as to keep

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the foreign nationals, till their deportation whenever they are ordered to be kept in detention centers by competent authorities or by the Courts. (10) In case, the accused/foreign national is a woman or a woman having a child or the child itself, the competent authorities, including jail authorities, detention centers, and the Courts and Juvenile Justice Boards have to follow the Guidelines of the Hon'ble Apex Court laid down in Upadhyaya's case noted supra; in addition to the provisions under the Prisons Act as well as Prisons Rules, and Juvenile Justice Act and Rules strictly and meticulously in their letter and spirit.

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(11) If a mother who is a foreign national, is in custody and having infant below the age of six years or up to six years, the court may order the child to accompany the mother during her custody. If, either of parents got arrested, then the custody of the child may be given to the other parent who is not arrested. If both the parents are arrested and they are in custody in same or in some other case, court may order custody of children to their close relative or to Government shelter home, or to any other organization recognized or undertaking of the government where government or concerned authorities can monitor the well being of the child, as per Juvenile Justice (Care and Protection of Children) Act, 2015 and Rules.

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(12) If a foreign national is convicted by the Court, and any application for parole is made, the jail authorities have to take in to consideration the conditions enumerated under Section 4 of the Foreigners Act, 1946, in addition to the Prisons Act and Rules.

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(13) If a Foreign National is found to be an illegal migrant and not a citizen of India, and has been involved in criminal offences under other law of the land for the time being in force, apart from Foreigners Act, the State Government or the Central Government as the case may be, take immediate necessary steps by exercising their discretion after applying their mind to the facts and circumstances of the case, if necessary and if the circumstances warrants, if the said offences are not heinous or anti- social, or not punishable with imprisonment for more than three years, or with fine only to withdraw those cases under Section 321 of Cr.PC., so as to enable the concerned authorities to take necessary steps to deport such persons to their mother country, as expeditiously as possible.

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(14) The State Legal Services Authority, District Legal services Authorities, and Taluka Legal Services Committees, shall make a periodical visit to the jails and Detention centers to ensure and satisfy itself that the concerned authorities have taken necessary steps

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to implement the directions issued by the Hon'ble Apex Court in Upadhyay's case and also the Detention Center Manual, so as to take appropriate action to inform the concerned authorities to rectify their mistakes and also the Legal Services Authorities suomotu can take steps in accordance with law to get the mistakes or errors rectified on the legal side.

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(15) The Central Government and the respective State Governments shall often revise the Detention Center Manual and also the Prisons Act and Rules based on the need of the hour to bring necessary changes, so as to effectively and efficiently implement the very object of such Manual and laws.

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(16) The Central Government, the State Government, the Karnataka State Legal Services Authority, Karnataka Judicial Academy and Police Academy in the State shall take appropriate necessary swift action to sensitize all the stake holders, Judges, Prosecutors, Police Officers, Custom and Immigration Officers (FRRO-FRO), Jail Authorities and Officers delegated in Detention Centers, in this regard.

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Considering the period of incarceration of the petitioner in custody, I am of the view that without expressing any opinion on the merits and demerits of the case, the prayer

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NC: 2025:KHC:12757 CRL.P No. 11978 of 2024

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made by the petitioner for grant of regular bail needs to be answered affirmatively. Accordingly, the following:-

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ORDER

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The petition is allowed .

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The petitioner is directed to be enlarged on bail in Crime No.280/2022 registered by Hennur Police Station, Bengaluru, for offences punishable under Sections 8(c), 22(c) of Narcotic Drugs & Psychotropic Substances Act (for short 'NDPS Act') and Sections 14 of Foreigners Act, 1946, subject to the following conditions:

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a) The petitioner shall be released on bail on executing his personal bond for a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) with Two sureties for the like sum to the satisfaction of the Trial Court.

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b) The Trial Court is hereby directed that, at the time of releasing of the petitioner on bail, the Competent Authorities shall be informed to detain him in any of the Detention Centers in Bangalore or at any place nearby Bengaluru City, till the trial is concluded.

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c) It is also made clear that, under Section 3(2) of the Foreigners Act, if the Competent Authority feels that, by

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means of imposing restrictions on the movements of the petitioner by taking bond with or without surety for the observance or as an alternative to the enforcement of any of the prescribed or specific restrictions or conditions can control his movements, such orders may be passed by the Competent Authority with intimation to the Court.

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d) The petitioner shall not indulge in hampering or tampering the prosecution witnesses and he shall be made available to the court on all the future hearing dates unless he is exempted by the court for any genuine reasons or cause.

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e) The petitioner however, shall not leave the jurisdiction of the trial court without prior permission till the case registered against him is disposed of.

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f) The petitioner shall not involve in similar offences in future.

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g) The petitioner shall furnish his mobile phone number and also his address proof to the SHO of Hennur Police station and also to the Trial Court.

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SD/(S VISHWAJITH SHETTY) JUDGE

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SPV

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List No.: 1 Sl No.: 35

Kparagume Nzorosa Glody v. State of Karnataka

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Kparagume Nzorosa Glody v. State of Karnataka

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