Mr Abdul Fathah Vs State by Union of India

MR. ABDUL FATHAH S/O SHAMSUDHEEN AGED ABOUT 28 YEARS RESIDENT OF BAITHUL ISTHIRAHA, THAIVALAPPU CHOORI, MADHUR, KASARAGOD KERALA - 671 124, PRESENTLY IN JUDICIAL CUSTODY AT CENTRAL PRISON PARAPPANA AGRAHARA BENGALURU - 560 100.

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…PETITIONER

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(BY SRI ANIL KUMAR A.S, ADV., FOR SRI PARAMESWARAPPA C, ADV.)

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AND:

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Digitally signed by NANDINI MS Location: High Court of Karnataka

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STATE BY UNION OF INDIA INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU (NCB) BENGALURU ZONAL UNIT H. NO.7/1-2, PRIYANKA VILLAS RAMANNA GARDEN, KATTIGENAHALLI BAGLUR MAIN ROAD, AIR FORCE STATION YELAHANKA POST, BENGALURU - 560 063.

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…RESPONDENT

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(BY SRI S. RAJASHEKAR, CGC)

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THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNNS) PRAYING TO RELEASE HIM ON BAIL IN CONNECTION WITH NCB F.NO.48/1/22/2023/BZU AGAINST THE PETITIONER FOR THE OFFENCES P/U/S 8(c) R/W SEC. 20(b)(ii)(C), 27, 27A, 28 AND 29 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 PENDING BEFORE THE LRD. XXXIII ADDL. CITY CIVIL AND

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NC: 2025:KHC:10499 CRL.P No. 2164 of 2025

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SESSIONS JUDGE AND SPL.JUDGE FOR NDPS AT BENGALURU IN SPL.C.C.NO.2834/2023 FOR THE AFORESAID OFFENCES.

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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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Accused No.1 in Spl.C.C.No.2834/2023 pending

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before the Court of XXXIII Addl. City Civil & Sessions Judge and Special Judge for NDPS, Bengaluru, arising out of NCB.F.No.48/1/22/2023/BZU for the offences punishable under Sections 8(c) r/w Section 20(b)(ii)(C), 27, 27A, 28 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS' Act) is before this Court seeking regular bail.

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Heard the learned counsel appearing for the

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parties.

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On the basis of credible information received, the petitioner herein and another were intercepted by officers of NCB in KSR(SBC) railway station, Bengaluru on 11.05.2023 and from their possession totally 33.620 kg of contraband article ganja was seized and subjected to

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NC: 2025:KHC:10499 CRL.P No. 2164 of 2025

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panchanama. Thereafter, accused Nos.1 and 2 were arrested and remanded to judicial custody. The Investigation Officer after completing the investigation has filed a complaint before the Trial Court against accused Nos.1 and 2 for the aforesaid offences.

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The bail application filed by the petitioner before the jurisdictional Sessions Court in Crl.Misc.No.11751/2024 was dismissed on 24.01.2025. Therefore, he is before this Court.

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Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the petitioner has no other criminal antecedents and he is in custody for the last nearly 20 months. Trial in the case is yet to commence. The petitioner is ready and willing to cooperate with the Investigation Officer for the purpose of investigation. Accordingly, he prays to allow the petition.

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Per contra, learned counsel for respondent who has filed his statement of objection has seriously opposed the petition. However he does not dispute the submission

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made by the learned counsel for the petitioner. He submits that since commercial quantity of contraband article is seized in the present case, the petitioner's prayer cannot be considered in view of rigor under Section 37(1)(b) of the NDPS Act. Accordingly, he prays to dismiss the petition.

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It is not in dispute that the petitioner has no other criminal antecedents. He is in custody from 12.05.2023. The Investigation Officer has recovered totally 33.620 kg of contraband article ganja from possession of accused Nos.1 and 2. From possession of accused No.1 20kg 960 grams of contraband article was recovered and from possession of accused No.2 12 kg 660 grams of contraband article ganja was recovered.

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The Hon'ble Supreme Court in the case of Chitta Biswas Alias Subhas vs. State of West Bengal reported in 2020 SCC OnLine SC 1536 taking into consideration that the accused was in custody for a period of one year seven months and there was no sufficient

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progress in trial, without expressing any opinion on merits and demerits of the case, has granted regular bail to the accused. In the case of Nitish Adhikary alias Bapan vs. State of West Bengal reported in 2022 SCC OnLine SC 2068 in a case where charge sheet was filed for the offences punishable under Sections 21(c) and 37 of the NDPS Act and accused was in custody for a period of one year seven months, the Hon'ble Supreme Court has granted regular bail on the ground that trial is still in the preliminary stage, as only one witness was examined.

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The Hon'ble Supreme court in the case of

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MOHD. MULSIM ALIAS HUSSAIN V. STATE (NCT OF DELHI) - 2023 SCC ONLINE SC 352 paragraph number 20 and 21 has observed as follows:-

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"20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted

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under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

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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 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 Malik."

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10. In the case of SHEIKH JAVED IQBAL @

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ASHFAQ ANSARI @ JAVED ANSARI VS STATE OF UTTAR PRADESH - 2024 SCC OnLine SC 1755 , the

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Hon'ble Supreme Court in paragraph 32, has observed as under:

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"32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and

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sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us.

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Considering the fact that the petitioner has no

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other criminal antecedents and also he is in incarceration for a period of more than 20 months in the present case, I am of the opinion that the prayer made by the petitioner for grant of regular bail is required to be answered affirmatively without expressing any opinion on the merits/demerits of the case.

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Accordingly, the following:

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ORDER

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The petitioner is directed to be enlarged on bail in Spl.C.C.No.2834/2023 pending before the Court of XXXIII Addl. City Civil & Sessions Judge and Special Judge for NDPS, Bengaluru, arising out of NCB.F.No.48/1/22/2023/BZU for the offences punishable under Sections 8(c) r/w Section 20(b)(ii)(C), 27, 27A, 28 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985, subject to the following conditions:

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a) Petitioner shall execute a personal bond for a sum of Rs.1,00,000 (Rupees One Lakh only) with two sureties for the likesum (out of which one surety shall be local surety) , 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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d) The petitioner shall not involve in similar offences in future;

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Sd/(S VISHWAJITH SHETTY)

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JUDGE

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NMS

Mr Abdul Fathah v. State by Union of India

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Mr Abdul Fathah v. State by Union of India

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