Ibrahim Kutty vs The State Of Karnataka
2022 Latest Caselaw 2061 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                             BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

             CRIMINAL PETITION NO.6399/2021

BETWEEN

IBRAHIM KUTTY
S/O. YAHU,
AGED ABOUT 32 YEARS,
R/AT ADIYATTIL HOUSE,
KANDAMPUJA POST,
MALAPPURAM DISTRICT,
KERALA-670 612.                           ... PETITIONER

(BY SRI LETHIF B, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY MYSURU C.E.N. POLICE STATION,
MYSURU DISTRICT,
REP BY SPP,
HIGH COURT BUILDING,
BENGALURU-560 001.                       ... RESPONDENT

(BY SRI B.J. ROHITH, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN SPL.C.NO.147/2021
(CR.NO.15/2020) OF MYSURU CEN CRIME P.S., MYSURU
DISTRICT FOR THE OFFENCE PUNISHABLE UNDER SECTION
20(B)(ii)(c) OF NDPS ACT AND SECTION 120(B) READ WITH
SECTION 34 OF IPC, PENDING ON THE FILE OF PRINCIPAL
SESSIONS JUDGE AND SPECIAL JUDGE, MYSURU.
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      THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:


                               ORDER

This petition is filed by the petitioner-accused No.1

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

Spl.C.No.147/2021 (Crime No.15/2020) registered by

Mysuru CEN Crime Police Station, Mysuru for the offences

punishable under Section 20 (B) (ii) (c) of NDPS Act and

Section 120 (B) read with Section 34 Indian Penal Code,

1860 (for short 'IPC').

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

the respondent-State.

3. The case of the prosecution is that the CEN,

Mysore received credible information on 28.09.2020 at

about 1:30 PM that some unknown persons are carrying

the Ganja in the Bolero Good Vehicle Bearing No.KL-20 L-

5059 car. After such information, case came to be

registered in Crime NO.15/2020 against unknown persons.

Subsequently at 3:30 PM when the guards were watching

near the Bengaluru-Mysore-Nanjangudu road near the

airport, they found the vehicle Bearing No.KL-20 L-5059,

Bolero Good Vehicle was passing and they intercepted and

they found 36 bundles of ganja kept in the vehicle and on

inquiry it was revealed that the accused Nos.1, 2 and 5 to

7 were present and were in possession of the ganja. Later

on, ganja was weighed in the digital weighing machine and

was found that there was 86.30 kgs of ganja, including

ganja recovered in the car. Subsequently they have been

arrested and produced before the Court and remanded to

judicial custody. The petitioner approached this Court by

filing bail petition in Crl.P.No.283/2021, which came to be

dismissed as withdrawn on 01.07.2021. The police have

now filed the charge sheet. Hence, the petitioner is

before This court.

4. The learned counsel for the petitioner mainly

contended that the accused person is in custody from

28.09.2020 nearly 1 ½ years. The ganja which was seized

by the police is of commercial quantity. The police while

seizing the ganja, did not examine any independent

witnesses except the official witnesses i.e., PDO and the

Village Panchayath and none of the independent witnesses

joined the seizure proceedings. Therefore, the seizure is

questionable. The investigation being completed, charge

sheet is filed and the accused No.2 is already granted bail

by the co-ordinate bench of this Court. The inventory of

the said Ganja was done after 20 days of the seizure.

Therefore prayed for granting bail.

5. Per contra, learned HCGP objected for petition

contending that Tahsildar along with the PDO, Village

Panchayath joined for seizure and they were the official

witnesses and responsible officials. Such being the case,

statement of the witnesses cannot be disputed as they are

respectable officials of the Government. The investigation

reveals accused No.2 went to the Andhra Pradesh along

with accused Nos.4, 5 and 6 have purchased ganja from

accused No.3 and while shifting Ganja, the accused No.1

and other accused were caught red handed. This

petitioner is the main accused along with other accused

who were caught red handed with the 86 KG of commercial

quantity of ganja and there is no infirmity in the

investigation and offence is henious one and petitioner

being from Kerala State securing his presence will be

difficult, therefore prayed for rejection of the bail.

6. Upon hearing arguments and on perusal of

records it reveals that the police on the credible

information apprehended this accused along with other

accused Nos.4 and 5 and had seized 89 Kgs of ganja in the

presence of witnesses CW 2 and 4 who are the Tahzildar

and PDO of the Village Panchayath and one Child

Development Officer who are the respectable official

witnesses. Therefore, at this stage the presence of the

petitioner official witnesses cannot be disbelieved and their

statement cannot be discarded.

7. The seized quantity of ganja was 86 Kg of

commercial quantity. Though the co-ordinate bench

granted bail for accused No.2 wherein it was held accused

No.2 was implicated and arrested by the police only after

voluntary statement of accused No.1 and there was no

recovery of the material from accused No.2. Therefore,

the ground of parity will not arise even though accused

No.2 was granted bail. Investigation reveals there is a

prima facie strong material against the petitioner for

having committed offence under NDPS Act and the seizure

of 86 kgs of ganja which is more than four times

Commercial quantity. FSL report also reveals the ganja

has been confirmed. There is no proper materials

produced regarding his permanent abode and if bail is

granted there is every possibility of absconding of the

petitioner and securing of his presence is doubtful.

Therefore I am of the view that the petitioner is not

entitled for bail.

Accordingly bail petition is dismissed.

It is noted by this court that the accused No.2

approached this court and obtained bail from the co-

ordinate bench of this court in Crl.P.No.4885/2021. The

accused No.2 had already approached along with the

accused No.1 by filing Crl.P.No.283 of 2021 which was

dismissed as withdrawn with liberty to file fresh petition

after charges sheet vide order dated 1/7/2021. Once the

bail application disposed by this court, the successive bail

petition shall have to be placed before the same bench, as

per the circular issued by R(J) Circular, the High Court of

Karnataka No.17/2019 dated 12/6/2019. It appears

registry has not mentioned the circular and after the

rejection of the bail petition of the accused No.2 by this

court, the same was placed before the co-ordinate bench

and obtained bail which reveals the accused suppressed

the fact of rejection of bail and the officials also failed to

mention the circular and the rejection of earlier bail

petition of accused No.2, therefore it is necessary to make

an enquiry against the official who erred the duty for not

mentioning about circular and also placing the petition

before the co-ordinate bench by suppressing the previous

order is nothing but violation of judgment of Hon'ble

Supreme Court mentioned in the circular therefore registry

to put up the order before the Hon'ble Chief Justice for

taking appropriate action against the official for violation of

direction ordered by Hon'ble Supreme Court and R(J)

Circular, the High Court of Karnataka No.17/2019 dated

12/6/2019.

Sd/-

JUDGE

AKV