Anil Kumar Pandey vs Union Of India
2022 Latest Caselaw 12569 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 19TH DAY OF OCTOBER, 2022

                         BEFORE

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

              CRIMINAL PETITION NO.7182/2022

BETWEEN:

ANIL KUMAR PANDEY
S/O SATYA NARAYANA PANDEY
AGED ABOUT 42 YEARS
R/O GAURA PANDEY VILLAGE (MASKANWA)
PARASHURAMPUR PS
TEHSIL HARIYYA, BASTI DISTRICT
UTTAR PRADESH-272 130.                    ... PETITIONER

           (BY SRI HARISH KUMAR M.S., ADVOCATE)
AND:

UNION OF INDIA
INTELLIGENCE OFFICER
NARCOTIS CONTROL BUREAU
BENGALURU ZONAL UNIT
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
                                        ... RESPONDENT

            (BY SRI GOWTHAMDEV C. ULLAL, CGC)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CRIME NCB.CR.NO.48/1/8/2021/BZU NOW REGISTERED AS
SPL.C.C.NO.1568/2022 ON THE COURT OF THE XXXIII ADDL.
CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE (NDPS)
BENGALURU-33.
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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 Crime

No.48/1/8/2021/BZU now registered as Spl.C.C.No.1568/2022,

pending on the file of XXXIII Additional City Civil and Sessions

Judge and Special Judge (NDPS), Bengaluru, registered for the

offences punishable under Sections 8(c), 22(a)(b)(c), 27, 28 and

29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

('the NDPS Act' for short).

2. Heard the learned counsel appearing for the

petitioner and the learned Central Government Counsel

appearing for the respondent/NCB.

3. This bail petition is a successive bail petition filed by

the petitioner. Earlier this Court rejected the bail petition of this

petitioner in Crl.P.No.4062/2022 vide order dated 26.05.2022.

This Court after considering the material available on record in

paragraph Nos.8 and 9 taken note of the case of the prosecution

that on receipt of credible information, the parcel was seized in

the Post Office and the same contains the name and phone

number of this petitioner, the same is not disputed by the

petitioner before the Court. The only contention is that, he was

working as an employee with accused No.1 and he was

discharging his duties as an employee with accused No.1. It is

also observed that the Counsel not disputes the fact that the

said parcel contains 493.5 grams of MDMA.

4. It is also observed in paragraph No.9 of the said

order that it is a manufactured drug and it is almost the 10 times

of the commercial quantity and also taken note of the confession

statement of the petitioner under Section 67 of the NDPS Act.

The Court also considered the very proviso of Section

37(1)(b)(II) of the NDPS Act and found that the parcel was in

the name of this petitioner and the phone number mentioned in

the parcel also belongs to this petitioner and the quantum is also

10 times more than the commercial quantity. This Court taken

note of the judgment of the Apex Court passed in

Crl.A.No.375/2021, and the offence is against the society at

large. However, while rejecting the bail petition, liberty is given

to the petitioner to approach this Court after filing of the charge-

sheet.

5. Now, the learned counsel for the petitioner would

vehemently contend that accused No.1 had already been granted

bail and he is also entitled for bail on the ground of parity. Apart

from that, the learned counsel would submit that this petitioner

was not having any knowledge and only his name was used for

transportation of drug by accused No.1 and all the documents

pertaining to this petitioner also with the custody of accused

No.1. The entire case of the prosecution is that accused No.1 is

the master mind to commit an offence and he used the name of

the petitioner to commit such an offence. The learned counsel

also would contend that even according to the Investigating

Officer there is no chance of receiving or getting the said

consignment by the petitioner as the address and phone number

given therein are fake and the same is not the address and

phone number of the petitioner. When such being the case, he is

ready to obey the conditions that may be imposed by this

Hon'ble Court.

6. Per contra, the learned Central Government Counsel

appearing for the respondent/NCB would submit that a detailed

statement of objections is filed and after apprehending this

petitioner, his statement was also recorded and also statement

of accused No.1 was also recorded. During the enquiry, it has

emerged that he was having the knowledge of drug business

carried out by accused No.1 and this petitioner was also having

the knowledge and both of them dealing with the drug by picking

and importing the same. The learned CGC also would submit

that the quantity seized is 493.5 grams and commercial quantity

is only 10 grams. The learned CGC also brought to the notice of

this Court that the judgment of the Apex Court passed in

Criminal Appeal Nos.1001-1002 of 2022 arising out of

petitions for Special Leave to Appeal (Crl.) No.6128-29 of 2021

and brought to the notice of this Court that paragraph Nos.14,

15 and 17, wherein, the Apex Court also setting aside the bail

granted by invoking Section 37(1) of the NDPS Act and comes to

the conclusion that the accused has to make out a case that he

was not guilty and hence, no case is made out in a successive

bail petition.

7. Having heard the respective counsel and on perusal

of the material available on record, only on the credible

information that the parcel was received in the post office, the

Police went and seized the same in the post office. Admittedly,

the parcel came in the name of this petitioner. The very

contention of this petitioner is that this petitioner was working

with accused No.1. No doubt, this Court has granted bail in

favour of accused No.1. Now, the learned CGC for the

respondent would submit that an application is filed for

cancellation of bail granted in favour of accused No.1, the same

is pending for consideration.

8. Having considered the material available on record,

the seized quantity of the manufactured drug is MDMA 493.5

grams and commercial quantity is only 10 grams and the seized

MDMA manufactured drug is 50 times more than the commercial

quantity. When such being the case, the prima facie material

found against this petitioner is that he had indulged along with

accused No.1 in getting the manufactured drug that too in his

name and phone number given is also belongs to this petitioner.

Hence, I do not find any ground to consider his bail application in

a successive bail petition and the Court has to take note of

Section 37 of the NDPS Act, wherein, the burden is on the

petitioner to make out a case that he has not guilty.

9. The Apex Court also in the judgment referred supra

relied upon by the learned CGC for the respondent is very clear

that taking into note of the statement under Section 67 of the

NDPS Act of the accused as well as under Section 37 of the

NDPS Act when there is credible and plausible grounds for the

Court to believe that the accused persons have committed an

offence and no grounds are made out that he is not guilty, the

question of exercising the discretion does not arise. The very

object of bringing the NDPS Act into force is to combat the

menace in the Society. The scope and object of the enactment is

when the IPC offences are inadequate to meet the challenges of

transportation of the drugs, which affects the Society at large, it

is not an offence against an individual and it affects the young

mind of the Country and the same is also observed in the

judgment of the Apex Court. Hence, I do not find any ground to

enlarge him on bail.

10. The other contention of the learned counsel for the

petitioner is that he is in custody from the last one year is also

not a ground when the offence indulged against this petitioner is

an offence against the Society at large and it affects the entire

Society not an individual and quantity also 50 times more than

the commercial quantity. Hence, I do not find any merit in the

successive bail petition to enlarge him on bail.

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

following:

ORDER

The criminal petition is rejected.

Sd/-

JUDGE

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