Aden Lobo Vs State of Karnataka by by Inspector of Police

THIS CRL.P IS FILED U/SEC.439 CR.PC (FILED U/SEC.483 BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.69/2025 (SPL.C.NO.90/2025) REGISTERED BY RESPONDENT KUNDAPURA POLICE PENDING ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE AT UDUPI FOR THE ALLEGED OFFENCE P/U/SEC.8(c), 22(c) R/W 27(b) OF THE NDPS ACT 1985 AND ETC.

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IN CRL.P NO. 7762/2026

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BETWEEN:

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MUDASIR S/O MUHAMMAD AGED ABOUT 23 YEARS R/AT M.S.MANZIL SARKARI GUDDE SUBASHNAGARA 10^TH CROSS KAPU TALUK UDUPI DISTRICT - 574 105

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...PETITIONER

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(BY SRI.LETHIF B, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KUNDAPURA POLICE STATION UDUPI DISTRICT

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REP. BY SPP, HIGH COURT BUILDING BANGALORE 560001

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...RESPONDENT

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(BY SRI.VINAY MAHADEVAIAH, HCGP)

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HC-KAR

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CNR: KAHC010291012026

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THIS CRL.P IS FILED U/SEC.439 CR.PC (FILED U/SEC.483 BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO RELEASE HIM ON BAIL IN SPL.C.NO.90/2025 [CRIME NO.69/2025] OF KUNDAPURA POLICE STATION, FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 8(C), 22(C), 27(B) OF NDPS, PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI AND ETC.

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THESE PETITIONS, 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 Nos.1 and 2 in Special Case No.90/2025

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pending before the Court of Principal District and Sessions Court, Udupi District, Udupi arising out of Crime No.69/2025 registered by Kundapura Police Station, Udupi for the offences punishable under Sections 8(c), 22(C) read with 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act, 1985') are before this Court in these two petitions filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking regular bail.

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HC-KAR

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CNR: KAHC010291012026

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Heard the learned counsel for the parties.

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FIR in Crime No.69/2025 was registered by

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Kundapura Police Station for the aforesaid offences against the petitioners - accused Nos.1 and 2, based on the first information dated 04.06.2025 received from Nanjanaik N, PSI (L&O) attached to Kundapura Police Station. During the course of investigation of the said case, the petitioners were arrested on 04.06.2025 and subsequently, remanded to judicial custody. After completing investigation, charge sheet is filed against five persons and the petitioners herein are arrayed as accused Nos.1 and 2 in the charge sheet. Their bail application filed before the Trial Court in

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Special Case No.90/2025 was rejected on 08.04.2026. Therefore, they are before this Court.

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Learned counsel for the petitioners submits that there is no compliance of Sections 42 and 50 of NDPS Act in the present case. Accused No.1 has no criminal antecedents. Insofar as accused No.2 is concerned, though

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HC-KAR

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CNR: KAHC010291012026

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a case has been registered against him for the offences

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punishable under the provisions of NDPS Act,

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no contraband article was recovered in the said case from his possession. The petitioners are youngsters and they are in custody for the last more than one year. Accordingly, they pray to allow the petitions.

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Per contra , learned High Court Government Pleader, who has opposed the petitions, submits that, commercial quantity of contraband article has been seized from the possession of accused Nos.1 and 2 in the present case. It is further submitted that the requirements of Sections 42 and 50 of the NDPS Act have been satisfactorily complied and therefore, the petitioners are

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not entitled for grant of bail. The question of compliance with requirement of Sections 42 and 50 of NDPS Act is a matter of trial and at this stage, the petitioners cannot be released on bail, for the reason that there is no compliance

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HC-KAR

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of Sections 42 and 50 of NDPS Act. Accordingly, prays to

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dismiss the petitions.

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FIR in the present case was registered on 04.06.2025 based on the credible information received by the first informant at about 5.00 p.m. on the said day when he was in the Police Station. However, in the first information, it is not stated that the credible information received by the first informant while he was in the Police Station was reduced to writing in the prescribed register and thereafter, he had sought permission of the higher Officers to proceed further. Therefore, prima-facie, there is no compliance of Section 42 of NDPS Act, which is mandatory. The seizure mahazar would also reflect that accused Nos.1 and 2 were not issued with any notice by the empowered Officer, informing them of their right to have their personal search conducted before the nearest Gazetted Officer or the Magistrate. On the other hand, the empowered Officer apprehended accused Nos.1 and 2 and

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HC-KAR

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CNR: KAHC010291012026

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had taken them to the Office of the Deputy Superintendent

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of Police, Kundapura, who is the Gazetted Officer, who had conducted the personal search of accused Nos.1 and 2 and in turn, notice to accused Nos.1 and 2, as contemplated under Section 50 of the NDPS Act was issued by the said Gazetted Officer.

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A reading of Section 50 of the NDPS Act would make it very clear that, it is the empowered Officer, who is required to issue such notice to the accused, whose person is required to be searched. Further, a reading of the notice issued by the Gazetted Officer to accused Nos.1 and 2 would go to show that their right under law to be searched before the nearest Gazetted Officer or the Magistrate of

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their choice has not been mentioned in the said notice. The questions, which were put forward to accused No.1 and 2, are mentioned in the said notice in both English as well as in Kannada vernacular language. Accused No.1 and 2 have replied to the said notice in writing in Kannada.

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HC-KAR

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A reading of the questions in Kannada would make it clear

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that right of the accused under law to be searched either before the nearest Gazetted Officer or the Magistrate of their choice, has not been informed to them, which is the requirement of law as stated by the Hon'ble Apex Court in the case of VIJAYSINH CHANDUBHA JADEJA Vs. STATE OF GUJARAT reported in (2011)1 SCC 609. In paragraph No.24 of the said judgment, the Hon'ble Supreme Court has observed as follows;

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"24 . Although the Constitution Bench in Baldev Singh Case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it

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was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce."

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(emphasis supplied)

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Accused Nos.1 and 2, aged about 23 years and 19

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years respectively, are in judicial custody for more than one year. Accused No.1 is stated to have no other criminal antecedents of similar nature. Insofar as accused No.2 is concerned, though there is a criminal case registered against him for the offences punishable under the provisions of NDPS Act, it is brought to the notice of this Court that no contraband article was seized from his possession in the said case. Under these circumstances, the rigour under Section 37(1)(b) of the NDPS Act cannot

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be made strictly applicable as against accused Nos.1 and 2, more so, when the materials on record, prima-facie , would go to show that there is non-compliance of Sections

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HC-KAR

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42 and 50 of the NDPS Act, which is mandatory. Under

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these circumstances, I am of the opinion that the prayer made by accused Nos.1 and 2 for grant of regular bail requires to be answered affirmatively.

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Accordingly, the following:

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ORDER

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(i) The Criminal Petitions are allowed .

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(ii) The petitioners - accused Nos.1 and 2 are directed to be enlarged on bail in Special Case No.90/2025 pending before the Court of Principal District and Sessions Court, Udupi District, Udupi arising out of Crime No.69/2025 registered by Kundapura Police Station, Udupi for the offences punishable under Sections 8(c), 22(C) read with 27(b) of the NDPS Act, 1985, subject to the following conditions:

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a) Petitioners - accused Nos.1 and 2 shall execute a personal bond for a sum of Rs.1,00,000 (Rupees One Lakh only) each with

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two sureties for the likesum, to the satisfaction of the jurisdictional Court;

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b) Petitioners - accused Nos.1 and 2 shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts their appearance for valid reasons;

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c) Petitioners - accused Nos.1 and 2 shall not directly or indirectly threaten or tamper with the prosecution witnesses;

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d) Petitioners - accused Nos.1 and 2 shall not involve in similar offences in future;

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e) Petitioners - accused Nos.1 and 2 shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against them is disposed off.

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SD/(S VISHWAJITH SHETTY) JUDGE

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NBM

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List No.: 1 Sl No.: 47

Aden Lobo v. State of Karnataka by by Inspector of Police

Case brief

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Aden Lobo v. State of Karnataka by by Inspector of Police

Case brief

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