Mohammad Yunus vs Union Of India
2022 Latest Caselaw 10841 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF JULY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

            CRIMINAL PETITION NO.5860/2022

BETWEEN:

MOHAMMAD YUNUS
S/O. ISLAM MOHAMMAD MANSURI
AGED ABOUT 42 YEARS
R/O. CEMENT GALI, WARD NO.18,
OPPOSITE SHRIRAM HOTEL
BHAWANIMANDI, JHALAWAR
RAJASTHAN-326 502.                        ... PETITIONER

           (BY SRI K.S.VISHWANATHA, ADVOCATE)
AND:

UNION OF INDIA
NARCOTICS CONTROL BUREAU
BENGALURU ZONAL UNIT
BENGALURU-560 063
THROUGH INTELLIGENCE OFFICER
REPRESENTED BY SPP.                        ... RESPONDENT

         (BY SRI MADHUKAR DESHPANDE, SENIOR CGC)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE HIM ON BAIL IN
NCB.F.NO.48/1/2/2013/BZU, BENGALURU FOR THE OFFENCE
P/U/S. 8(c) R/W. 17, 18, 23, 27A, 28, 29 OF NDPS ACT, WHICH
IS PENDING IN SPL.C.C.NO.135/2014 ON THE FILE OF THE
XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPL.
JUDGE, NDPS, BENGALURU.
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     THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is filed under Section 439 of Cr.P.C. seeking

regular bail of the petitioner/accused in NCB

F.No.48/1/2/2013/BZU, Bengaluru, for the offence punishable

under Section 8(c) read with Sections 18, 23, 27A, 28 and 29 of

the NDPS Act.

2. Heard the learned counsel for the petitioner and the

learned Senior Central Government Counsel appearing for the

respondent-NCB.

3. The factual matrix of the case of the prosecution is

that on credible information received on 13.05.2013, intercepted

the lorry in which accused Nos.1 and 2 were proceeding along

with opium weighing 15.038 kilograms and the accused No.4

escaped from the said lorry and seized the same at the instance

of accused Nos.1 and 2 and case has been registered at the first

instance against accused Nos.1 and 2 and thereafter, while filing

the charge-sheet, arraigned this petitioner as accused No.3 and

also the accused No.4, who has escaped from the lorry and

shown both accused Nos.3 and 4 in absconding column and

charge-sheet was filed on 07.11.2013. While filing the charge-

sheet, the accusation made against this petitioner is that he

himself handed over the seized articles at Rajasthan and this

petitioner was trafficking the same through accused Nos.1, 2 and

4. The accused Nos.1 and 2 have faced the trial and ultimately,

both of them have been acquitted and before acquitting, case

was split up against accused Nos.3 and 4 on 20.03.2014 and

thereafter, proclamation was also issued against accused Nos.3

and 4 in 2014 itself and according to the prosecution, the

proclamation was done in 2014 itself in Madhya Pradesh in

respect of this petitioner and in respect of accused No.4 also,

proclamation was issued in Rajasthan and ultimately, accused

No.4 was secured before the Court and after the arrest of

accused No.4, this petitioner has approached the Court seeking

for anticipatory bail and when the same was not granted, the

petition was withdrawn and directed to surrender before the

Court fixing the date for surrender as 17.05.2022. The present

petitioner was arrested on 16.05.2022 at Bengaluru Airport and

he was produced before the Court and taken into custody for 5

days and thereafter, he is in judicial custody.

4. Learned counsel for the petitioner in his argument

vehemently contends that, accused Nos.1 and 2 have been

acquitted vide judgment dated 09.07.2015 and this petitioner

was shown in absconding column and case was split up in 2014

itself. The counsels also would submit that though proclamation

was issued in the year 2014 itself, the same was not published in

Rajasthan, but it is published in Madhya Pradesh. The counsel

would submit that from 1995, this petitioner is doing the

business under the brand name 'Rajasthan Gold Masala'. The

counsel would submit that when he was about to surrender

before the Court on 17.05.2022, after his arrival to Bengaluru,

he was apprehended on the previous day, though the date was

fixed for his surrender on 17.05.2022. The counsel would

vehemently contend that this petitioner has been arraigned as

No.3, only based on the voluntary statement of other co-accused

and nothing is collected to connect this petitioner that he had

indulged in trafficking the opium through other accused persons

and now, he has been in custody from the last two months and

nothing is discovered from this petitioner, except recording the

voluntary statement.

5. Learned Senior Central Government Counsel for the

respondent has filed a detailed objection statement before the

Court along with annexures. He would vehemently contend that

even though accused Nos.1 and 2 have been acquitted in Special

Case No.236/2013 vide judgment dated 09.07.2015 and an

appeal is filed before this Court and the same is pending for

consideration and hence, the acquittal cannot be a ground to

enlarge him on bail. The counsel would vehemently contend

that on 13.05.2013, when information was received that the

accused Nos.1 and 2 are transporting opium weighing 15.038

kilograms, the vehicle was intercepted and found accused Nos.1

and 2 and they have given the voluntary statement that they

have collected the same from this petitioner and hence, he has

been arraigned as accused No.3. The accused No.4 has

absconded while apprehending accused Nos.1 and 2. The

counsel also would vehemently contend that even though

charge-sheet was filed in 2013 itself, the case was split up in

2014 and all efforts are made to secure the petitioner to subject

him for trial and the petitioner has evaded the service of

summons as well as execution of warrant and ultimately,

proclamation was issued and only after issuance of proclamation

and after arrest of accused No.4, he had approached the Court

for anticipatory bail, the same was not granted and directed to

surrender and hence, with great difficulty, he was secured before

the Court and if he is enlarged on bail, there is a chance of he

fleeing away from justice and it would be very difficult to

conduct the trial and he being the permanent resident of

Rajasthan, there are chances of absconding again since, he has

absconded from 2013 to 2022. Hence, he is not entitled for bail.

6. Having heard the respective counsel and also on

perusal of the material available on record, accused Nos.1 and 2

were apprehended on 13.05.2013 itself when interception was

made with regard to the vehicle in which they were proceeding.

It is also the case of the prosecution that accused No.4 jumped

from the vehicle and he was also secured with difficulty in 2022

only. The main contention of the prosecution before the Court

is that, this petitioner is the kingpin, who had indulged in

trafficking the opium and circulating the same through accused

Nos.1 and 2. The material also reveals that, absconded charge-

sheet was filed against this petitioner and also accused No.4. In

order to show the material that he was notified with regard to

the filing of absconded charge-sheet, the prosecution mainly

relies upon the document of issuance of proclamation in the year

2014 itself, but the fact is that the said proclamation was made

in respect of Madhya Pradesh address and the petitioner claims

that he is having permanent abode at Rajasthan by producing

the documents of adhaar card as well as voters list. The counsel

also submits that statement of objections filed along with

documents clearly disclose that the petitioner is having

properties at Rajasthan. However, the Senior Central

Government Counsel appearing for the respondent-NCB brought

to notice of this Court, in the complaint, the place of abode of

the petitioner is mentioned as resident of Madhya Pradesh.

7. Now, the Court has to take note of the material on

record, admittedly, this petitioner was secured in the month of

May, 2022 and when the petitioner was unable to get the

anticipatory bail, he was asked to surrender and he came to

Bengaluru for surrender and in the meanwhile, he was

apprehended and he has been in custody from the last 2 months

from the date of his arrest.

8. Learned Senior Central Government Counsel for the

respondent-NCB would submit that he has been in custody from

two months and discovery has to be made at the instance of this

petitioner and his voluntary statement was recorded wherein, he

has admitted his guilt. Now, the question before the Court is

with regard to whether based only on the voluntary statement of

accused, he can be retained in custody and the same is not

admissible, unless there is a discovery at the instance of the

accused. Apart from that, no positive material is before the

Court with regard to the fact that this petitioner was notified

with regard to filing of the absconding charge-sheet. Apart from

that, the prosecution mainly relies upon voluntary statement of

accused Nos.1 and 2 to implicate this petitioner as accused and

now also, after arrest of this petitioner, who is accused No.3,

only recorded the voluntary statement and there is no discovery.

When such being the case, it is a fit case to exercise the

discretion under Section 439 of Cr.P.C. in favour of the petitioner

to enlarge him on bail.

9. With regard to the apprehension of the prosecution

that the petitioner may flee away from justice and he will not

assist the Court in completing the trial, this Court can take note

of the said fact into consideration and insist for two local sureties

for the likesum to the satisfaction of the concerned jurisdictional

Court.

10. In view of the discussions made above, I pass the

following:

ORDER

The Petition is allowed. Consequently, the

petitioner/accused shall be released on bail in NCB

F.No.48/1/2/2013/BZU, Bengaluru, for the offence punishable

under Section 8(c) read with Sections 18, 23, 27A, 28 and 29 of

the NDPS Act, subject to the following conditions:

(i) The petitioner shall execute personal bond for a sum of Rs.5,00,000/- (Rupees Five Lakhs only) with two local sureties for the like-sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall not indulge in tampering the prosecution witnesses.

(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court, till the case registered against him is disposed of.

Sd/-

JUDGE

ST