Karnataka High Court
Sri. Tawheed Aquib vs The Intelligence Officer on 6 September, 2022
Bench: M G Uma
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.5209/2022
BETWEEN:
SRI. TAWHEED AQUIB S/O. LATE .A. WAHAB,
AGED ABOUT 30 YEARS,
INDIAN NATIONAL HAVING AADHAR
CARD NO.374690067749,
R/AT: 10-5-26/2, JUMMA MASJID ROAD,
BUNDER, MANGALORE - 575 001.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
... PETITIONER
(BY SRI: TEJAS N., ADVOCATE)
AND:
THE INTELLIGENCE OFFICER,
D.R.I., BANGALORE ZONAL UNIT,
BANGALORE - 560 001.
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR
HCK , BANGALORE - 01)
... RESPONDENT
(BY SRI: AMIT DESHPANDE, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME
NO.F.NO.DRI/BZU/S-IV/ENQ-32 (INT-NIL) 2019 ON THE FILE OF
DIRECTORATE OF REVENUE INTELLIGENCE, BANGALORE ZONAL UNIT,
BANGALORE WHICH IS PENDING ON THE FILE OF THE HON'BLE XXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
NDPS CAUSES (CCH-33), BANGALORE IN SPL.C.C.NO. 1398/2019 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 8(C) READ WITH 21(C),
22(C), 23(C), 27, 28 AND 29 OF NDPS ACT, ON SUCH TERMS AND
CONDITIONS.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.08.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
2
ORDER
The petitioner-accused No.1 is before this Court seeking
grant of bail under Section 439 of Cr.P.C. in F.No.DRI/BZU/
S-IV/ENQ-32(INT-NIL)2019, the Directorate of Revenue
Intelligence, Bangalore Zonal Unit, Bangalore, pending on the
file of the XXXIII Additional City Civil and Sessions Judge and
Special Judge NDPS (CCH-33), Bengaluru in
Spl.C.C.No.1398/2019 for the offences punishable under
Sections 8(c) read with Sections 21(C), 22(C), 23(C), 27, 28
and 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short 'the NDPS Act'), on the basis of first
information lodged by the informant.
2. Heard Sri. Tejas.N, learned counsel for the
petitioner and Sri. Amit Deshpande, learned Standing Counsel
for the respondent. Perused the materials on record.
3. Learned counsel for the petitioner submitted that
the petitioner had approached this Court seeking similar relief
of granting bail in Criminal Petition No.2522/2020. The said
petition was came to be dismissed vide order dated
28.07.2021. The petitioner is in judicial custody since
27.09.2019. The charge is not yet framed by the trial Court
against the accused and therefore, detention of the petitioner
in custody would amount to pre-trial punishment. Learned
counsel further submits that the petitioner is entitled for
benefit of parity as accused No.2 is already enlarged on bail
by the Co-ordinate Bench of this Court. As per Test Report
dated 13.11.2019, whereunder, MDMA tablets said to have
been seized from the custody of the accused and subjected to
the chemical analysis, the quantitative analysis of the samples
could not be carried out for want of facilities.
4. Learned counsel places reliance on the decision of
the Hon'ble Apex Court in the case of Bharat Chaudhary vs.
Union of India1, to contend that when the quantitative
analysis of the samples could not be carried out for want of
facilities, the Hon'ble Apex Court considered the bail
application of the accused and released him on bail.
Therefore, applying the same principles, the petitioner is also
entitled to be enlarged on bail.
5. Learned counsel for the petitioner further submits
that there is delay in taking up the trial by the trial Court.
2021 SCC Online SC 1235
Under such circumstances, the bar under Section 37 of the
NDPS Act is to be relaxed as detention of the petitioner for
indefinite period would prejudice his right to life and liberty
guaranteed under Article 21 of the Constitution of India.
In support of his contention, he placed reliance on the
decision of the High Court of Punjab and Haryana at
Chandigarh in the case of Ghanso @ Kalo VS. State of Punjab,
wherein the High Court considered various decisions of the
Hon'ble Apex Court to release the accused on bail despite of
rigor of Section 37 of the NDPS Act. Therefore, he prays for
allowing the petition.
6. Per contra, learned Standing Counsel for the
respondent opposing the petition submitted that serious
allegations are made against the petitioner for having
committed the offence. He is arrayed as accused No.1. His
bail petition before this Court in Crl.P.No.2522/2020 was
considered on merits and clear finding is given that the
allegations against the petitioner is of serious nature and the
materials that are placed before the Court prima-facie disclose
commission of offence and therefore, the petitioner is not
entitled for grant of bail. Learned counsel further submitted
that huge quantity of MDMA tablets weighing 1.5 kgs was
recovered from the accused and when the room which was in
occupation of the petitioner was searched, 350 grams of
Hashish was also found. The said contraband was recovered
under the Mahazar. After completion of the investigation, the
charge sheet is filed. There is clear bar for grant of bail under
Section 37 of the NDPS Act since commercial quantity of
contraband was seized. Unless twin conditions mentioned
therein are satisfied, the petitioner is not entitled for grant of
bail.
7. Learned counsel further placed reliance on the
decision of the Hon'ble Apex Court in the case of Union of
India through Narcotics Control Bureau, Lucknow vs.
Md. Nawaz Khan2, to contend that when there is clear bar
under Section 37 of the NDPS Act, satisfaction of twin
conditions contained under Section 37(1)(b) of the NDPS Act
is sine-qua-non. Unless the said conditions are satisfied, the
accused is not entitled for grant of bail. He also placed
reliance on the decision of the Hon'ble Apex Court in the case
(2021) 10 SCC 100
of State of Kerala and Others. vs. Rajesh and Others3 in
support of his contention and also to contend that releasing of
accused No.2 without considering the rigor of Section 37 of
the NDPS Act cannot enure to the benefit of the petitioner to
seek parity. He further submitted that the order granting bail
to accused No.2 by the Co-ordinate Bench of this Court is
challenged before the Hon'ble Apex Court by filing Special
Leave Petition and the same is pending consideration. Under
such circumstances, the petitioner is not entitled for grant of
bail.
8. He also submitted that since the accused is
seeking time for hearing before charge, the trial Court could
not frame the charge. However, he adds that the prosecution
is ready and willing to lead the evidence before the trial Court
with the cooperation of the accused and complete trial within
eight months. Hence, he prays for dismissal of the petition.
9. In view of the rival contentions urged by learned
counsel for both the parties, the point that would arise for my
consideration is:
(2020) 12 SCC 122
"Whether the petitioner is entitled
for grant of bail under Section 439 of
Cr.P.C.?"
My answer to the above point is in 'Negative' for the
following:
REASONS
10. The present petitioner is the main accused and it
is alleged that he was in contact with accused No.3, who is
still absconding, for supply of contraband through DHL Courier
Service. It is stated that E-mail and phone number used for
procuring the contraband through Courier Service is that of
the petitioner. It is alleged that huge quantity of contraband
were being procured through Courier Service under the guise
of procuring foot massager. It is the contention of the
prosecution that accused Nos.1 and 2 were apprehended and
2992 MDMA tablets weighing 1.5 kgs were recovered, which is
of commercial quantity. It is also stated that the petitioner
was in occupation of a room in Hotel Kamath. When the said
room was searched, 350 grams of Hashish was found which
was recovered under the Mahazar. It is the contention of the
prosecution that the petitioner is involved in drug peddling by
procuring contraband from Foreign Countries. Thus,
contention of the prosecution was considered by this Court
while considering similar bail petition filed by the petitioner in
Crl.P.No.2522/2020 and same was rejected by forming an
opinion that the charge sheet prima-facie discloses
compliance of the procedures contemplated for search and
seizure. Considering seriousness of the offence, which is
having very bad impact on the Society, the petition was came
to be dismissed.
11. Now, the petitioner has again moved the Court on
the ground that accused No.2 is already enlarged on bail.
Therefore, he is also entitled for the benefit of parity with him.
The copy of the order granting bail in favour of accused No.2
is produced before the Court. The said petition came to be
allowed by the Co-ordinate Bench of this Court vide order
dated 13.04.2022. It was observed that even though
COVID-19 Pandamic has receded, it is not that the virus is
dead and gone; the medical reports suggest of its revival with
suspected higher virility because of rapid mutation. This fact
has prevailed on the Co-ordinate Bench of this Court amongst
other grounds for releasing the petitioner on bail.
12. The Hon'ble Apex Court in the case of State of
Kerala and Others. vs. Rajesh and Others (supra) discussed
at length about rigor of Section 37(1)(b) of the NDPS Act with
reference to its earlier decision in Union of India vs. Ram
Samujh and Ors4 and categorically held that satisfaction of
twin conditions mandated under Section 37 of the NDPS Act is
sine-qua-non for granting bail to the accused under the NDPS
Act. Moreover, the Hon'ble Apex Court in its very same order
has held that granting of bail to the other accused persons will
not absolve the act of the accused before the Court seeking
bail from the rigor of Section 37 of the NDPS Act. This Court
has already formed an opinion that the allegations made
against the accused is of serious nature and his release on
bail would be very bad impact on the Society. It is stated that
accused No.3 is still absconding and split up charge sheet is
already filed. Even though it is contended by the learned
counsel for the petitioner that he has been falsely implicated
in the matter without any basis, I do not find any reason to
form a different opinion than the one which is already formed
while dismissing the earlier Criminal Petition No.2522/2020
vide order dated 28.07.2021.
1999(9) SCC 429
13. Even though the Test Report with respect to
MDMA bears a note to the effect that the quantitative analysis
of the samples could not be carried out for want of facilities,
the very same report confirms that the sample that was sent
for examination tested positive for the presence of MDMA. The
Test Report with regard to Hashish is also available on record,
which states that, Hashish in the form of dark brown coloured
soft lump is what was sent for examination.
14. In the case of Bharat Chaudhary (supra), the
Hon'ble Apex Court considered the fact that the large number
of tablets that have been seized by the DRI admittedly
contain herbs/medicines meant to enhance male potency and
they do not attract the provisions of the NDPS Act. Moreover,
it is noticed by the Hon'ble Court that none of the tablets were
seized during the course of search conducted, either at the
office or at the residence of accused No.4. The reliance was
placed only on the printout of Whatsapp messages
downloaded from the mobile phone and devices seized from
the office premises of the accused and therefore, the same
cannot be treated as sufficient material to establish a live link
between accused No.4 with accused Nos.1 to 3 and under
such circumstances, accused No.4 was ordered to be enlarged
on bail. However, while releasing accused No.1 on bail, the
Hon'ble Apex Court has also considered the fact that the
charge sheet is already filed and he is in custody since two
years. It is to be noticed that there is no much discussion
about the rigor of Section 37 of the NDPS Act in view of the
fact that the seized contraband included herbs/medicines.
Therefore, I am of the opinion that the said decision rendered
by the Hon'ble Apex Court cannot be made applicable to the
present case, where it is the specific contention of the
prosecution that huge quantity of contraband i.e., MDMA
tablets, Hashish were recovered under the seizure and
mahazar and sufficient materials are placed before the Court
to prima-facie establish the case. I do not find any reason to
form an opinion to satisfy the twin conditions mandated under
Section 37(1)(b)(ii) of the NDPS Act. Therefore, I am of the
opinion that the petitioner is not entitled to be enlarged on
bail.
15. When it is held that the petitioner is not entitled
to be enlarged on bail, it is the duty of the trial Court to take
up the matter for trial and dispose of the case expeditiously
with the assistance of the prosecution as well as the accused.
Dismissal of the application for bail cannot be last sight of the
trial Court and the case cannot be kept pending for trial for
years together, as definite detention of the accused in custody
would amount to infringement to his life and liberty.
Therefore, a balance is to be strike between the right of the
prosecution and that of the accused. Therefore, I am of the
opinion, that the trial Court and the prosecution is to be
directed to take up the matter for trial expeditiously and to
dispose of the same atleast within eight months from today.
16. In view of the above, I proceed to pass the
following:
ORDER
(i) Criminal Petition is dismissed.
(ii) The trial Court is directed to expedite the trial
and dispose of the matter atleast within eight
months from today with the assistance of the
prosecution and the accused. If the accused is
trying to delay the trial, the same shall be recorded
in the order sheet.
(iii) Registry to send copy of the order to the trial
Court for needful action and for information.
Sd/-
JUDGE
SMJ
