Abdul Razak B U vs Union Of India
2022 Latest Caselaw 10725 Kant

BETWEEN:

ABDUL RAZAK B.U. S/O. UMAR B.M.,
AED ABOUT 28 YEARS,
R/AT NO.117, MARUTHI LAYOUT,
CHINNAPANAHALLI,
OPP.GJR INTERNATIONAL SCHOOL,
MARATHAHALLI,
BANGALORE-560037

N/A GUNDU RAO BADAVANE,
SHANIVARASANTHE TALUK,
SOMAWAR PETE,
KODAGU DISTRICT-571 235
                                              .....PETITIONER
(BY SRI HASHMATH BASHA, SENIOR COUNSEL FOR
SRI KARIAPPA N.A. H.P. UNIQUE & CO.)

AND:

UNION OF INDIA
NARCOTIC CONTROL BUREAU,
BANGALORE ZONAL UNIT,
BANGALORE.
                                             ..... RESPONDENT
(BY SRI MADHUKAR DESHPANDE, SPL. P.P.)
                                      2




      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING TO ENLARGE
THE PETITIIONERN ON BAIL IN NCB FILE NO.48/1/19/2021/BZU ON THE
FILE OF THE RESPONDENT NCB, BANGALORE WHICH IS PENDING ON
THE FILE OF THE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, SPL.
JUDGE FOR NDPS CASES, BANGALORE IN SPL. C.C.NO.834/2022 FOR
THE OFFENCE P/U/S 8(C), 20B(II)(C), 25, 27-A OF N.D.P.S. ACT.

      THIS PETITION HAVING BEEN HEARD AND RESERVED ON
22.06.2022 COMING ON FOR ORDERS, THROUGH VIDEO CONFERENCING
AT DHARWAD BENCH, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:

                              ORDER

This criminal petition is filed by the accused No.6 under

Section 439 of Code of Criminal Procedure, 1973 (hereinafter

referred to as 'Cr.P.C.', for short) for granting bail in respect of NCB

File No.48/1/19/2021/BZU on the file of respondent NCB,

Bangalore, which before XXXIII Addl. City Civil and Sessions Judge

and Special Judge for NDPS Cases, Bangalore City for the offence

punishable under Sections 8(c), 20B(ii)(c), 25, 27-A and 29 of

Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter

referred to as the 'NDPS Act', for short).

2. Heard the arguments of the learned Senior Counsel

appearing for counsel for petitioner and learned Special Public

Prosecutor for respondent.

3. The case of the prosecution is that on 30.09.2021, the

complainant received credible information that two persons are

transporting ganja in Maruti Swift car. Based upon the information,

the complainant intercepted the car bearing No.KA-12/MA-6697,

where two persons were sitting in the car and after enquiry, they

searched and found 136.8 kg ganja. On the voluntary statement of

accused No.2, the police also seized 1.920 kg ganja from his house.

Totally, the police seized 139.735 kg ganja from the accused

persons. During the investigation, it is revealed that this

petitioner/accused No.6 also involved in the crime. Therefore, the

respondent summoned this petitioner and arrested him on

02.10.2021 and remanded to judicial custody. The first bail petition

came to be rejected by this Court in Crl.P.No.8998/2021 on

12.01.2022. After filing of charge sheet, again this petitioner is

before this Court.

4. Learned Senior Counsel appearing for the counsel for

petitioner has strenuously contended that the petitioner is innocent

of the alleged offences and he has been falsely implicated in the

case. Though he has been arrested 01.10.2021, the respondent

has shown the date of arrest as 02.10.2021. There is no recovery

of any ganja at the instance of this petitioner. The petitioner is

running men's beauty parlor and earning income. He is an income

tax Assessee and has declared his income to the income tax

authorities. The investigation is completed and charge sheet is

filed. The co-accused were already granted bail by this Court. The

petitioner is ready to abide by any conditions imposed by this

Court. Based upon the voluntary statement of the co-accused, the

petitioner has been arrayed as accused. He is in custody for eight

months. The petitioner is not required for any interrogation.

Hence, the learned Senior Counsel prayed for grant of bail.

5. Per contra, learned Special Public Prosecutor seriously

objected the bail petition and contended that this petitioner is the

main accused who is a kingpin. He used to purchase ganja from

other States and in his beauty parlor, used to pack the ganja and

thereafter he used to sell the same to customers by sending

through the vehicle like Swiggy and Zomato. This Court has

considered all the grounds urged in the earlier petition and rejected

the petition. There is no changed circumstances. The accounts

seized by the respondent reveals that huge crores of rupees were

received by the petitioner and it is not possible to accept that those

money were pertaining to the beauty parlor. The offence under

Sections 27A, 28 and 29 of NDPS Act attract against this petitioner.

Therefore, he prayed for dismissal of the petition.

6. In reply arguments, learned Senior Counsel further

contended that if any offence committed earlier by the petitioner

that cannot be considered as punishment and Section 27A of the

NDPS Act does not attract against this petitioner as there is no

material to show that he has paid amount to the seller for

purchasing ganja. He has declared his income to the income tax

authorities. There is no basis for arrest of the petitioner if at all any

amount received or paid by him, it has to be questioned by the

Income Tax Department, the respondent cannot take any action.

Therefore, he prayed for granting bail.

7. Having heard the arguments of the learned Senior

Counsel for counsel for petitioner and learned Special Public

Prosecutor respondent, perused the records.

8. The petitioner is running men's beauty parlor. There is

no recovery of any drugs at the instance of this petitioner. Except

voluntary statement, there is nothing on record to show that this

petitioner is directly involved in the crime. Learned Senior Counsel

contended that if at all any amount of transaction made by the

petitioner in his business, it was declared to the income tax

authorities whereas Special Public Prosecutor has strenuously

contended that the petitioner transacted crores of rupees through

online transaction, through ATM card and credit card apart from the

cash account. The statement of accounts also produced by both the

counsel. Of course, the statement of accounts of the petitioner

reveals that he has transacted crores of rupees through online and

the counsel also produced the income tax returns filed by the

petitioners wherein the petitioner declared his income to the income

tax authorities and the profit and loss accounts also reveals that he

has shown gross income of Rs.2,48,452/-. However, the profit and

loss account reveals that he has shown Rs.25,45,100/- towards

purchase as well as his received income was Rs.45,00,000/- and

net profit was Rs.2,48,452/- which was declared by him. Even for

the assessment year 2017-2018, he declared his income. That

apart, he is having 2-3 branches of men's beauty parlor in various

reputed places. Even his turnover was gone up to Rs.75,00,000/-

at KSL Water supply. It all reveal whatever transaction made by

the petitioner in lakhs of rupees and crores of rupees were all

declared by him to the income tax authorities. Therefore, at this

stage, without going for trial, the contention of the respondent

cannot be acceptable that the petitioner transacted crores of rupees

more than Rs.2,50,000/- and at this stage, it cannot be able to

presume that this amount was received by him by selling drugs

without going for trial.

9. It is an admitted fact that there is no recovery from this

petitioner except voluntary statement of the co-accused. If at all

Swiggy and Zomato vehicles were used in the previous transaction,

there is no case registered against the petitioner. But here accused

Nos.1 and 2 were arrested and ganja of 139.735 kg was recovered

from them. Though both the counsel relied on various judgments

of the Hon'ble Supreme Court and High Courts in various cases, for

considering the bail petition, this Court cannot hold a mini trial.

The petitioner is in custody for more than eight months. The

investigation is completed and charge is filed. Considering all these

aspects, I am of the view that by imposing certain stringent

conditions if the petitioner is enlarged on bail, it will not prejudice

the case of the prosecution. Accordingly, I pass the following

order:

The criminal petition is allowed. The trial Court is directed to

release the petitioner/accused No.6 on bail in NCB File

No.48/1/19/2021/BZU on the file of respondent NCB, Bangalore,

which before XXXIII Addl. City Civil and Sessions Judge and Special

Judge for NDPS Cases, Bangalore City, subject to the following

conditions:

i. The petitioner shall execute a personal bond for a sum of `5,00,000/- (Rupees Five Lakh only) with two sureties for the likesum to the satisfaction of the Trial Court.

ii. The petitioner shall not tamper the prosecution witnesses directly or indirectly.

iii. The petitioner shall not indulge in similar offences.

iv. The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court.

v. The petitioner shall mark his attendance once in a month on every 16th day of Calendar month for a period of 6 months or till commencement of trial, whichever is earlier.

If any of the conditions is violated, then the prosecution is at

liberty to move an application for cancellation of bail.

Sd/-

JUDGE

Naa