Sri Muheed Khan vs State By Cen Crime Police
2022 Latest Caselaw 4690 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 14TH DAY OF MARCH, 2022

                         BEFORE

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

              CRIMINAL PETITION No.343/2022

BETWEEN:

1. SRI MUHEED KHAN
S/O WAJID KHAN
AGED ABOUT 24 YEARS
R/O OPPOSITE OT HEERA MASZID
AREHALLI VILLAGE, BELUR TALUK
HASSAN DISTRICT - 573115

2. SIR SHAHID KHAN
S/O SRI WAJID KHAN
AGED ABOUT 19 YEARS
MECHANIC IN ANNU GARAGE
R/O ANEDIBBA, GONIBEEDU VILLAGE
MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-577132.

                                           ... PETITIONERS

              (BY SRI K.S.GANESHA, ADVOCATE)

AND:

STATE BY CEN CRIME POLICE
CHIKKAMAGALURU-577101
REP. BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001.
                                           ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)
                                      2



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN
CRIME NO.31/2020 OF CHICKMAGALUR CEN CRIME POLICE
STATION, CHICKMAGALUR FOR THE OFFENCE PUNISHABLE
UNDER SECTION 20(B)(II)(C) OF NDPS ACT AND ETC.

     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 petitioners in Crime No.31/2020 of

Chickmagalur CEN Crime Police Station, Chickmagalur for the

offence punishable under Section 20(b)(ii)(C) of IPC of NDPS

Act.

2. Heard the learned counsel for the petitioners and the

learned High Court Government Pleader appearing for the

respondent-State.

3. The factual matrix of the case is that based on the

credible information, the suo motu complaint was registered by

the police alleging that some unknown persons were unlawfully

possessing and transporting the ganja with an intention to sell

the same. Based on the credible information, the police have

conducted the raid and seized 50 kg 200 grams of ganja which

was kept in two bags in the Maruthi car and one pickup van was

also parked near the said Maruthi car and in the said respective

vehicles, two persons were there in each vehicle and in all four

persons were apprehended with the said ganja. On enquiry, the

accused persons have revealed that all of them have contributed

money for purchasing the ganja and purchased the same from

Vishakapattanam and brought to Karnataka for selling. On the

apprehension of the accused persons i.e., accused Nos.1 to 4,

recoveries were made from the conscious possession from those

persons and case was registered and after completion of the

investigation, charge-sheet has been filed for the aforesaid

offence.

4. The learned counsel appearing for the petitioners

would submit that accused Nos.2, 4, 6, 7 and 8 were enlarged

on bail and accused Nos.5, 9 and 10 were absconded. The

counsel would submit that this Court while granting the bail in

favour of accused No.2, an observation was made that he was

not in the car and he was in the pickup van and while granting

the bail in favour of accused No.4, an observation was made that

he was in the car and not in the pickup van. The counsel would

submit that accused No.6 was also granted anticipatory bail.

The quantum of ganja seized was 50 kg 200 grams. These

petitioners are in custody from 10.07.2020 and these petitioners

are also entitled for the bail on the ground of parity since

accused Nos.2 and 4 who were also apprehended along with

these petitioners were already enlarged on bail by this Court

vide order dated 13.01.2022 in Crl.P.No.9157/2021 and vide

order dated 01.12.2021 in Crl.P.No.2171/2021. Hence, prayed

to allow the petition.

5. Per contra, the learned High Court Government

Pleader for the State would submit that these petitioners have

procured the ganja which is a commercial quantity to the extent

of 50 kg 200 grams from accused No.10 and accused Nos.5, 9

and 10 were absconded. The observations made by this Court

while granting bail in favour of accused Nos.2 and 4 are not

correct and the ganja was seized from the Maruthi Car and not

from the pickup van and on the basis of the credible information,

these petitioners along with accused No.2 and 4 were

apprehended at the spot. There is a prima facie case against the

petitioners herein also. The counsel would submit that these

petitioners are in custody from 10.07.2020 is not a ground to

enlarge them on bail when they have indulged in committing of

heinous offence which is against the society at large and the

Court has to take note of the quantum of ganja seized at the

instance of these petitioners. The counsel would submit that

there are no criminal antecedents against these petitioners is

also not a ground to enlarge the petitioners on bail when the

petitioners were procured the same from accused No.10 and

kept the same to sell to the general public and the said offence

is against the society at large and the Court has to take note of

the gravity of the offence.

6. The learned High Court Government Pleader for the

State also relied upon the decision of Apex Court reported in

(2021) 10 SCC 100 in the case of UNION OF INDIA

THROUGH NARCOTICS CONTROL BUREAU, KUCKNOW vs

MD.NAWAZ KHAN wherein the Apex Court observed with

regard to granting of bail for the offence punishable under NDPS

Act. The tests which High Court and Supreme Court are required

to apply while granting bail, reasonable grounds to believe for

grant of bail, conscious possession of contraband principles has

been summarized in this judgment. The words and phrases

'possession' and 'conscious possession' has been discussed in

detail. The Apex Court held that the vehicle which was

intercepted at "L" was proceeding from "D" State towards other

State, the quantity of 3,300 kg of narcotic substance which is a

commercial quantity was found concealed in the vehicle. The

respondent/accused herein is not an unknown passenger but a

person, who according to the prosecution was closely in contact

with the co-accused with regard to the grant of bail under the

offence punishable under NDPS Act. In the Shiv Shanker

Kesari's case, the Apex Court observed that bail may be

canceled if it has been granted without adhering to the

parameters under Section 37 of NDPS Act. Further noted that

non-application of mind to the rival submissions and the

seriousness of the allegations involving an offence under the

NDPS Act by the High Court are grounds for cancellation of bail.

7. The learned High Court Government Pleader for the

State referring to the above judgment vehemently contend that

the granting of bail in favour of other accused persons cannot be

a ground to enlarge this petitioner on bail. The counsel also

brought to the notice of this Court the judgment reported in

(2021) 6 SCC 230 in the case of RAMESH BAHVAN RATHOD

vs VISHANBHAI HIRABHAI MAKWANA (KOLI) AND

ANOTHER wherein also the Apex Court held with regard to the

parity is concerned that the Court has to look into the role of

each of the accused persons while exercising the discretion on

the ground of parity and prayed to dismiss the petition.

8. Having heard the respective counsel appearing for

the parties and also on perusal of the material on record it is

clear that accused Nos.1 to 4 were apprehended at the spot and

two bags of ganja to the extent of 50 kg 200 grams was seized

which was in the Maruthi Car and by the side of the Maruthi Car,

one pickup vehicle was also parked. It is the case of the

prosecution is that two persons were in the Maruthi car and two

persons were in the pickup van but nowhere in the case it is

mentioned that who were in the Maruthi car at the time of

seizure of the ganja and who were in the pickup van. However,

this Court while granting the bail in favour of accused Nos.2 and

4 made an observation that accused No.2 was in the pickup van

and accused No.4 was in the Maruthi car. But the fact is that

two bags of ganja was seized from the car. When such being

the factual aspects of the case and when there is specific acts of

the petitioners, who were there in the car in which ganja was

seized and apart from that already bail was granted in favour of

accused Nos.2 and 4 and apart from that there is no criminal

antecedents against these petitioners, the contention of the

learned High Court Government Pleader for the State that

accused Nos.5, 9 and 10 were absconded cannot be a ground to

reject the bail since these petitioners are in custody from

10.07.2020. No doubt, the quantum of ganja seized was 50 kg

200 grams which is a commercial quantity from the very

conscious possession of the petitioners will be impact on the

society. It is also important to note that when the IPC is

inadequate to combat the offence of trafficking of drugs, Special

Enactment of NDPS was brought into force and an object of

bringing the Special Enactment also to be kept in mind. The

material collected by the prosecution and when the prosecution

is not sure about who were in the car from which ganja was

seized and who were in the pickup van and when there are no

criminal antecedents against the petitioners, I am of the opinion

that it is a fit case to exercise the discretion in favour of the

petitioners. No doubt, the principles laid down in the judgments

referred supra, the Apex Court also dealt with regard to the

parity is concerned. No doubt, in the said judgment, the Apex

Court held that while exercising the discretion on the ground of

parity, the Court has to take note of the role of each of the

accused persons. But in the case on hand, these petitioners

stands in the similar footing as that of accused Nos.2 and 4 since

they were also apprehended along with these petitioners. No

doubt, the Apex Court in the case of MD.NAWAZ KHAN

discussed with regard reasonable ground to believe for grant of

bail in conscious possession of contraband. Having taken into

note of the statutory provision of Section 37 of the NDPS Act, if

Court comes to the conclusion that reasonable ground to believe

that these petitioners are not guilty, then the Court can exercise

the powers. In the case on hand also in the light of the

provision of Section 37 of NDPS Act, when the prosecution is

also not particular about from whom the ganja was seized and

except the general allegation that these petitioners along with

other accused persons were there in two respective vehicles, it is

a fit case to exercise the discretion in favour of the petitioners

under Section 439 of Cr.P.C.

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

following:

ORDER

The petition is allowed. Consequently, the

petitioners/accused Nos.1 and 3 shall be released on bail in

connection with Crime No. 31/2020 of Chickmagalur CEN Crime

Police Station, Chickmagalur for the offence punishable under

Section 20(b)(ii)(C) of IPC of NDPS Act, subject to the following

conditions:

(i) The petitioners shall execute their personal bonds for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) each with two sureties each for the like-sum to the satisfaction of the jurisdictional Court.

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

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

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

Sd/-

JUDGE

SN