Sri Enneswara S @ Eshwar @ Eneswar S vs The State By Chandra Layout Police ...
2022 Latest Caselaw 11049 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JULY, 2022

                          BEFORE

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

            CRIMINAL PETITION NO.6019/2022
BETWEEN:

SRI ENNESWARA S
@ ESHWAR @ ENESWAR S.,
S/O. SRINIVAS T.,
AGED ABOUT 25 YEARS
R/AT NO.88, CHINNAPPA GARDEN
NEAR GANGA BHAVAN
NANDI DURGA ROAD
BENSON TOWN, SHIVAJINAGAR
BENGALURU-560 046.                        ... PETITIONER

            (BY SRI A.V.RAMAKRISHNA, ADVOCATE)

AND:

THE STATE BY
CHANDRA LAYOUT POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.                        ... RESPONDENT
                (BY SRI H.S.SHANKAR, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.122/2022 OF CHANDRA LAYOUT POLICE STATION,
BENGALURU, FOR THE OFFENCE P/U/S. 20(b) OF NDPS ACT.
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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 Crime No.122/2022 of

Chandra Layout Police Station, Bengaluru City, for the offence

punishable under Section 20(b) of NDPS Act.

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

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

that based on the credible information, raid was conducted and

seized ganja weighing 81.450 grams and the matter is under

investigation and this petitioner and accused No.2 were taken to

custody and they are in custody.

4. Learned counsel for the petitioner would vehemently

contend that immediately on receipt of credible information, case

was registered invoking the offence under Section 20(b) of NDPS

Act and thereafter, raid was conducted and mahazar is also not

placed before the Court for having seized the same and only in

remand application, the details are mentioned regarding seizure

is concerned, but no time and specific date is mentioned

regarding the raid conducted and seizure of ganja. Hence, it is

clear that this petitioner is implicated in the case.

5. Per contra, learned High Court Government Pleader

for the respondent-State would submit that, on credible

information that this petitioner along with other accused is

transporting the ganja, a raid wad conducted and seized ganja

weighing 81.450 grams which is a commercial quantity by

securing panch witnesses. He would also submit that, while

considering the bail petition, the technicalities cannot be looked

into and the Court has to look into the quantum of ganja seized

at the instance of this petitioner and other accused, who were in

conscious possession of the same.

6. Having heard the respective counsel and also on

perusal of the material on record, while registering the case, it is

specifically mentioned that they have received the credible

information regarding transportation of contraband and seized

the same to the tune of 81.450 grams which is a commercial

quantity and the same is four times more than the commercial

quantity. When such being the case, the technicalities cannot be

considered at the stage of investigation and the Court has to

look into the quantum of ganja seized i.e., 81.450 grams and

even though there are no criminal antecedents against the

petitioner, the Court has to take note of the offence committed

by the petitioner which is the offence against the society at large

and not against an individual. The trafficking of narcotic

contraband is an offence against the society and when the

special enactment was brought into force, it was felt that IPC

offences are inadequate to combat the menace in the society.

Further, Section 37 of NDPS Act is very clear that the Court has

to come to a reasonable belief that the accused has not

committed any offence and such circumstance is not found in the

case on hand when ganja of 81.450 grams is seized at the

instance of this petitioner and other accused. The Apex Court

also in the judgment in the case Union of India through NCB,

Lucknow vs. Mohammed Nawaz Khan in

Crl.A.No.1043/2021 dated 22.09.2021 held that if the ganja

seized is in conscious possession of the accused, the Court has

to take note of the said fact into consideration. Hence, it is not a

fit case to exercise the discretion during the crime stage and this

Court can give liberty to the petitioner to approach the Court

after filing of the charge-sheet.

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

following:

ORDER

The criminal petition is rejected. However, liberty is reserved to the petitioner to approach the Court, after filing of the charge-sheet.

Sd/-

JUDGE

ST