Nawaz Vs State of Karnataka

NAWAZ, S/O ABDUL KHADAR, AGED ABOUT 40 YEARS, R/AT ZIDAN MANZIL, MACHANPADY, C.M NAGAR, KODI HOUSE PAVOR POST AND VILLAGE, MANJESHAR POST AND VILLAGE, KASARGOD, KERALA - 671 323.

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…PETITIONER

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(BY SRI. LETHIF B.,ADVOCATE)

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AND:

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Digitally signed by KAVYA R Location: High Court of Karnataka

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STATE OF KARNATAKA, BY CEN CRIME POLICE STATION, D.K MANGALURU. REP. BY SPP, HIGH COURT BUILDING, BANGALORE - 560 001.

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…RESPONDENT (BY ASMA KAUSER., ADDITIONAL SPP) THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNSS) PRAYING TO RELEASE THEM ON BAIL IN CR.NO.225/2023 (SPL.C.NO.87/2024) OF CEN CRIME P.S. MANGALURU D.K FOR THE OFFENCE P/U/S 8(c), 22(C), 27(B) OF NDPS ACT AND 34 OF IPC PENDING BEFORE THE PRL.DISTRICT AND SESSIONS JUDGE, D.K MANGALURU.

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NC: 2025:KHC:20825 CRL.P No. 7537 of 2025

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HC-KAR

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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.2 in Spl.C.No.87/2024, pending before

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the Court of Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.225/2023 registered by CEN Crime Police Station, Mangaluru City, Dakshina Kannada District, for offence punishable under Sections 8(c), 22(C), 27(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and read with Section 34 of IPC is before this Court under Section 439 of Cr.PC seeking regular bail.

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Heard the learned Counsel for the parties.

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FIR in Crime No.225/2023 was registered by

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CEN Crime Police Station, Mangaluru City, Dakshina Kannada District for the aforesaid offences against the petitioner and others, based on the first information dated 08.12.2023 received from Sharanappa Bhandary, Police

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HC-KAR

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Sub-Inspector attached to CEN Crime Police Station, Mangaluru City.

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During the course of investigation of the case, petitioner herein, arraigned as accused No.1 in the FIR was arrested on 08.12.2023 and subsequently remanded to judicial custody. After completing investigation, charge sheet has been filed against three persons and petitioner is arraigned as accused No.2 in the charge sheet. Bail application filed by the petitioner before the trial Court in Spl.C.No.87/2024 was rejected on 13.09.2024. Therefore, petitioner is before this Court.

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Learned Counsel for the petitioner submits that

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the seizure of contraband article in the present case is from the person of the petitioner and therefore, compliance of the mandatory requirement of Section 50 of the NDPS Act becomes necessary. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mina Pun vs. State Of Uttar Pradesh , reported in 2023 SCC OnLine SC

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NC: 2025:KHC:20825 CRL.P No. 7537 of 2025

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HC-KAR

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1079. He further submits that in the earlier case which was registered against him for the offences punishable under Section 27(B) of the NDPS Act, petitioner has been enlarged on bail. He submits that accused No.3 has been granted regular bail by this Court in Crl.P.No.7985/2024. Accordingly, he prays to allow this petition.

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Per contra , learned Additional SPP has opposed the petition. She submits that seized contraband article is of commercial quantity and therefore, petitioner's prayer for grant of regular bail has to be rejected. However, she does not dispute that there is no proper compliance of Section 50 of the NDPS Act in the present case.

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Material on record wound go to show that based on the credible information received, the first informant had conducted a raid to the alleged spot were accused persons were making attempts to sell the contraband article to the public. From the alleged spot petitioner and

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the other accused were apprehended and from their possession totally 120 grams of contraband article was

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HC-KAR

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seized. From the possession of the petitioner totally 70 grams of contraband article allegedly MDMA was seized and from the possession of accused No.3, contraband article allegedly MDMA totally weighing 50 grams was seized.

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Perusal of the seizure mahazar would go to show that recovery of the contraband article is from the person of the petitioner. Therefore, compliance of Section 50 of the NDPS Act becomes mandatory.

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Perusal of the notice issued by the police in compliance of Section 50 of the NDPS Act would go to show that in the said notice it is stated that petitioner had an option to be searched in the presence of Gazetted Officer and there is no mention of his right to be searched in the presence of Jurisdictional Magistrate. Section 50 of the NDPS Act specifically mentions that the accused has got a right to be searched either in the presence of a Gazetted Officer or in the presence of Jurisdictional Magistrate, such an option has not been informed to the

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HC-KAR

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petitioner under the notice issued to him in compliance of Section 50 of the NDPS Act and therefore it is apparent that there is no compliance of Section 50 of the NDPS Act in the present case.

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The Hon'ble Supreme Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat

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reported in (2011) 1 SCC 609 has held that it is obligatory on the part of the Authorized Officer under Sub Section (1) of Section 50 of the NDPS Act to strictly comply the requirements of Section 50 of the NDPS Act and failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction. In the case of Mina Pun (supra) the Hon'ble Supreme Court had reiterated the law laid down in the

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case of Vijaysinh Chandubha Jadeja (supra).

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Petitioner herein is in the custody for the last more than one and half year. Accused No.3 has been already granted regular bail by this Court in Crl.P.No.7985/2024. Since there is no compliance of

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HC-KAR

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Section 50 of the NDPS Act in the present case, the rigor under Section 37(1)(b) of the NDPS Act cannot be made applicable as against the petitioner. Under the circumstances, I am of the opinion that the prayer 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 Spl.C.No.87/2024, pending before the Court of Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.225/2023 registered by CEN Crime Police Station, Mangaluru City, Dakshina Kannada District, for offence punishable under Sections 8(c), 22(C), 27(B) of NDPS Act and read with Section 34 of IPC, subject to the following conditions:

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a) The petitioner shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One

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NC: 2025:KHC:20825 CRL.P No. 7537 of 2025

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HC-KAR

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Lakh only) with two sureties for the likesum, 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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e) 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/-

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(S VISHWAJITH SHETTY) JUDGE

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KVR

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List No.: 2 Sl No.: 1

Nawaz v. State of Karnataka

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Nawaz v. State of Karnataka

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