Moahmmad Asif @ Asif Basha vs State Of Karnataka
2021 Latest Caselaw 3559 Kant

                        1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 29TH DAY OF OCTOBER, 2021

                     BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

       CRIMINAL PETITION No.7576/2021

                      C/w.

       CRIMINAL PETITION NO.8333/2021

IN CRL.P. NO.7576/2021:

BETWEEN:

MOHAMMED ASIF @ ASIF BASHA
S/O ANWAR BASHA
AGED ABOUT 36 YEARS
OFF: FRUITS VENDOR
R/AT MADHINA COLONY
HOSA NAGARA ROAD,
RIPPANPETE,
HOSANAGARA TALUK,
SHIVAMOGGA DISTRICT - 577 418.
                                     ..PETITIONER
(BY SRI. HASHMATH PASHA, ADVOCATE
FOR SRI.NASIR ALI, ADVOCATE)

AND:

STATE OF KARNATAKA
                         2


BY POLICE INSPECTOR
CEN POLICE STATION
DAVANAGERE - 577 004.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU).

                                    ..RESPONDENT
(BY SRI.R.D.RENUKARADHYA, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE
PETITIONER   ON   BAIL   IN    CR.NO.54/2021    OF
DAVANAGERE CEN CR.P.S. DAVANAGERE DISTRICT
FOR THE OFFENCE P/U/S 20(B)(ii)(b) OF NDPS ACT.

IN CRL.P. NO.8333/2021:

BETWEEN:

    MOHAMMAD ABDUL REHAMAN @
    ABDUL REHAMAN
    S/O LATE SHAHUL HAMMED.K
    AGED ABOUT 25 YEARS,
    OCC : MASAN WORK
    R/O 7/90, A,B, FATHIMA COTTAGE,
    NEAR GOUSIYA COMPLEX,
    4TH CROSS, MULLA STREET,
    KODI, KUNDAPURA,
    KASABA VILLAGE,
    KUNDAPPURA TALUK,
    UDUPI DISTRICT - 576 201.
                                      ...PETITOINER
(BY SRI.UMESH, ADVOCATE FOR
                         3


SRI.R.B.DESHPANDE, ADVOCATE)


AND:

STATE OF KARNATAKA
BY CEN CRIME POLICE STATION
DAVANAGERE - 577 004.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU).

                                     ..RESPONDENT
(BY SRI.R.D.RENUKARADHYA, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C., PRAYING TO ENLARGE THE
PETITIONER   ON   BAIL   IN    CR.NO.54/2021    OF
DAVANAGERE CEN CR.P.S. DAVANAGERE DISTRICT
FOR THE OFFENCE P/U/S 20(B)(ii)(b) OF NDPS ACT.

    THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE
FOLLOWING:

                    ORDER

Crl.P. No.7576/2021 is filed by accused No.1 and

Crl.P. No.8333/2021 is filed by accused No.2 under

Section 439 of Cr.P.C., for granting bail in Crime

No.54/2021 registered by CEN Crime Police Station

pending on the file of Principal District and Sessions

Judge, Davanagere for the offence punishable under

Section 20(B)(II)(b) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 ('the NDPS Act' for

short).

2. Heard Sri. Hashmath Pasha, learned Senior

counsel appearing for the petitioner in Crl.P.

No.7576/2021, Sri. Umesh, learned counsel appearing

for the petitioner in Crl.P. No.8333/2021 and Sri. R. D.

Renukaradhya, learned High Court Government Pleader

for respondent - State in both the cases.

3. The case of the prosecution is that a

suo-motu complaint is registered by the CEN Police

Inspector - Geerish B. V. on 19.08.2021 alleging that

on the credible information, himself and his team of

members and panchayathdas were went and watched

opposite road of Shivagiri Mini Rice Mill, Mittlakatte

Village, Harihara Taluk, Davanagere District, they found

two person were standing near motorcycle and

on-search, they are in possession of plastic bag

containing ganja measuring 6.278 grams. The same

was seized by the police under the Panchanama in the

presence of Panchas and they have been taken to

custody and accordingly, they have been remanded to

judicial custody. Their bail came to be dismissed by

the trial Court therefore, they are before this Court.

3. Learned senior counsel appearing for the

petitioners has seriously contended that the petitioners

are innocent of the alleged offence and they have been

actually offended 9 days prior to the date of the alleged

seizure and they have been falsely implicated and even

otherwise the alleged ganja is 6.278 grams, which is

not a commercial quantity, which is a intermediate

quantity. The investigation is in progress but the

petitioners are already in custody for 71 days and they

are ready to abide by the conditions that may be

imposed by this Court.

4. It is also contended that the alleged offence

punishable under Section 20(b)(II)(B) of NDPS Act,

which is lesser than the commercial quantity and more

than the small quantity. The punishment is extended

up to 10 years. Therefore, the charge sheet is required

to be filed within 60 days. In spite of lapse of 71 days,

the Police did not file the charge sheet. Therefore, the

petitioners are also entitled for default bail under

Section 167(2) of Cr.P.C. and therefore, prayed for

granting the bail.

5. Per contra, learned HCGP for respondent -

State seriously objected the bail petition.

6. upon hearing the arguments and on perusal

of the records, admittedly the police have shown the

offences alleged against these petitioners under Section

20(b)(II)(B) of the NDPS Act and remanded them to

judicial custody on 09.08.2021. The question of ganja

seized from petitioner Nos. 1 and 2 is 6.278 grams,

which is more than the small quantity and less than the

commercial quantity i.e., intermediate quantity and the

offence falls under the category of 20(b)(ii)(B) of the

NDPS Act. The punishment is extended up to 10 years

and as per Section 167(2) of Cr.P.C., for filing a charge

sheet for offence punishable is up to 10 years, is 60

days. Admittedly, as on today, 71 days lapse after

their arrest, the police did not filed any charge sheet.

In support of his grounds urged, learned senior counsel

relied upon the judgments of the Hon'ble Apex Court

and various judgments of the co-ordinate benches of

this Court.

7. The Hon'bel Apex Court in the case of

Rakesh Kumar Paul Vs. State of Assam reported

in (2017) 15 SCC 67 wherein, the charge sheet is not

filed within the statutory period, the accused need not

file any application and the Court required to intimate

the accused about the statutory right of granting of bail

under Section 167(2) of Cr.P.C.

8. Based upon the judgment, the co-ordinate

benches of this Court granted bail especially in W.P.

No.10375/2021 in Mohit Baliga Vs. State of

Karnataka and Another disposed on 25.06.2021, the

co-ordinate bench of this Court considered this aspect

and granted bail to the accused persons on default of

non - filing of the charge sheet within 60 days.

9. Based upon the judgments and looking to

the facts and circumstances of the case, though the

charge sheet is not filed within 60 days, the petitioners

are entitled for default bail. However, it is not known

whether the charge sheet if filed by the police or not

within 60 days. Therefore, even on the ground of

merits, the alleged ganja is only 6.278 grams, which is

a intermediate quantity. The petitioners are in custody

merely more than 2 months. Therefore, looking into

the merits of the facts and circumstances and by

imposing some stringent conditions, if bail is granted

no prejudice would cause to the prosecution case and I

deem it appropriate to enlarge the petitioners on bail.

9. Hence, I pass the following:

ORDER

Both the criminal petitions are allowed.

The trial Court is directed to release petitioners-

accused Nos. 1 and 2 on bail in Crime No.54/2021

registered by CEN Crime Police Station pending on the

file of Principal District and Sessions Judge,

Davanagere for the offence punishable under Section

20(B)(II)(b) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 subject to the following

conditions:-

i. Each of the petitioners shall execute personal bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for likesum to the satisfaction of the trial Court. ii. Petitioners shall not indulge in similar type of offences.

iii. Petitioners shall not tamper with any of the prosecution witnesses directly or indirectly. iv. Petitioners shall not leave the jurisdiction of this Court without prior permission. v. Petitioners shall appear before the Investigating Officer as and when called for investigation.

If any of the conditions are violated, the prosecution is at liberty to file an application for cancellation of bail.

Sd/-

JUDGE VBS