Mr Sayyad Mohammad @ Nasim vs State Of Karnataka
2023 Latest Caselaw 717 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2023            R
                         BEFORE

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

           CRIMINAL PETITION NO.10123/2022

BETWEEN:

MR. SAYYAD MOHAMMAD @ NASIM
S/O. ABDUL AZIZ,
AGED ABOUT 31 YEARS
R/AT ABDULLA MANZIL
VENKATESH LAYOUT,
NEAR HANAFI MASJID,
KUSHAL NAGAR
KODAGU DISTRICT-571 234.                      ... PETITIONER

            (BY SRI S. BALAKRISHNAN, ADVOCATE)

AND:

STATE OF KARNATAKA
BY ECONOMIC AND NARCOTIC CRIME,
POLICE STATION,
MANGALURU CITY-575 001
REPRESENTED BY SPP,
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.30/2021 OF ECONOMIC AND NARCOTIC CRIME P.S.,
MANGALURU CITY FOR THE OFFENCES P/U/S. 8c, 20(B)(ii)(c) OF
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NDPS ACT AND SECTIONS 4 AND 25(1B)(b) OF ARMS ACT AND
SECTION 201 R/W.34 OF IPC.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This is a successive bail petition filed under Section 439 of

Cr.P.C. seeking regular bail of the petitioner/accused in Crime

No.30/2021 of E and N Crime Police Station, Mangaluru COP,

Mangaluru City, for the offence punishable under Sections 25

and 3 of Indian Arms Act, 1959 and Sections 8(c) and

20(B)(II)(b) of Narcotic Drugs & Psychotropic Substances Act,

1985 ('the NDPS Act' for short).

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

3. This Court earlier rejected the bail petition of this

petitioner in Crl.P.No.3484/2022 on 07.06.2022 and while

rejecting the bail petition, liberty was given to the petitioner to

approach this Court after receipt of FSL report. Now, the FSL

report is received and hence, the petitioner has approached this

Court by filing this petition.

4. Learned counsel for the petitioner would vehemently

contend that this petitioner is in custody from the last 1 year, 7

months and this petitioner has been arraigned as accused No.5.

The accusation made against this petitioner is that he was also in

the car in which 60 kilograms of ganja was transported and this

petitioner is not connected with the seizure of 217.740 kilograms

of ganja from the lorry. The case of the prosecution is also that

accused No.1 procured the ganja and sold the same to accused

Nos.2 and 4 and this petitioner was in the car and accused No.3

was driving the car and the same was not in the conscious

possession of this petitioner and the same was in the dicky. This

petitioner is not the owner of car and lorry. Hence, he may be

enlarged on bail.

5. Per contra, learned High Court Government Pleader

appearing for the respondent-State would submit that total

ganja seized is 277.740 kilograms and about 60 kilograms of

ganja was seized from this petitioner and accused No.3, who

were transporting the ganja in the car and the said car was

followed by a lorry which was provided to accused Nos.2 to 4 by

accused No.6. He also submitted that, this Court also

considered the merits of the case while rejecting the earlier bail

petition and liberty was given to the petitioner to approach this

Court after receipt of FSL report and FSL report is very clear that

the seized articles are tested positive as ganja and hence, no

grounds are made out in a successive bail petition to enlarge the

petitioner on bail. He would further submit that this petitioner is

also having criminal antecedents and Crime No.153/2020 is

registered for the offence under Sections 8(a)(c) and 20(b) of

NDPS Act and apart from that, Crime No.173/2021 is registered

for the offence under Sections 395 and 364(a) of IPC. Hence,

the petitioner is not entitled for bail.

6. Having heard the learned counsel for the petitioner

and also learned High Court Government Pleader appearing for

the respondent-State, admittedly, this is a successive bail

petition and the facts also disclose that this petitioner was in the

car bearing No.KA-03-MK-0649 along with accused No.3 in which

they were transporting 60 kilograms of ganja and accused Nos.2

and 4 were in the Eicher Insulator lorry wherein, 217.740

kilograms of ganja was seized and both the car as well as the

lorry were seized at the spot. When such being the case, the

Court has to take note of the gravity of the offence and

possession of commercial quantity of ganja.

7. Learned counsel appearing for the petitioner also

relied upon the judgment of the Apex Court in UNION OF

INDIA VS. BAL MUKUND & ORS. in CRIMINAL APPEAL

NO.1397 OF 2007 dated 31.03.2009 and brought to notice of

this Court Para No.10, the manner in which a sample of narcotic

drug would have to be taken and contend that seizure itself is

not proper.

8. This Court would like to rely upon the judgment of

the Apex Court in UNION OF INDIA THROUGH NARCOTICS

CONTROL BUREAU, LUCKNOW VS. MD. NAWAZ KHAN

reported in (2021) 10 SCC 100, wherein the Apex Court

discussed with regard to the finding that mere absence of

possession of the contraband on the person of the accused does

not mean that the accused was not in "conscious possession" of

the contraband and rather, the knowledge of possession of

contraband has to be gleaned from the facts and circumstances

of a case and the standard of conscious possession would be

different in case of a public transport vehicle with several

persons as opposed to a private vehicle with a few persons

known to one another. The latter being the situation in the

present case, the term "possession" could mean physical

possession with animus; custody over the prohibited substances

with animus; exercise of dominion and control as a result of

concealment; or personal knowledge as to the existence of the

contraband and the intention based on such knowledge.

9. The Apex Court also in Para No.32 of the judgment

held that, issue of whether there was compliance of the

procedure laid down under Section 42 of the NDPS Act is a

question of fact and further in Para No.33, the Apex Court

observed that, in the complaint that was filed on 16.10.2019 it is

alleged that at about 14.00 hours on 26.03.2019, information

was received that between 15.00 - 17.00 hours on the same

day, the three accused persons would be reaching Uttar Pradesh.

The complaint states that the information was immediately

reduced to writing. Therefore, the contention that Section 42 of

the NDPS Act was not complied with is prima facie misplaced.

The question is one that should be raised in the course of the

trial. The circumstances are crucial to assessing whether the

High Court has correctly evaluated the application for bail,

having regard to the provisions of Section 37 of the NDPS Act.

The respondent was traveling in the vehicle all the way from

Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-

accused. The complaint notes that the CDR analysis of the

mobile number used by the respondent indicates that the

respondent was in regular touch with the other accused persons

who were known to him. The Apex Court also taken note of the

quantity of contraband found in the vehicle is a commercial

quantity. The contraband was concealed in the vehicle in which

the respondent was traveling with the co-accused. Having taken

note of these materials on record, the Apex Court set aside the

order of granting bail.

10. The judgment referred (supra) is aptly applicable to

the case on hand since, this accused was traveling along with

accused No.3 in the skoda car and the same was followed by a

lorry, wherein 217.740 grams of ganja was seized and the Court

has to take note of the quantity of the contraband found in the

vehicle and the contraband was concealed in the vehicle in which

they were traveling. In the case on hand, this Court, while

rejecting the bail petition of this petitioner, in Para No.6 has

given the reason and taken note of the quantity of ganja seized

in the vehicle and also taken note of the fact that accused No.1

distributed the ganja to other accused persons. When such

being the material on record, this Court reserved liberty to the

petitioner to approach this Court after receipt of the FSL report.

Now, the FSL report is also received and the same confirms that

the seized article is a ganja and FSL report also not helps the

petitioner. Further, learned High Court Government Pleader

appearing for the respondent-State also brought to notice of this

Court the criminal antecedents of this petitioner and registration

of cases against this petitioner in Crime Nos.153/2020 and

173/2021 which shows that there are criminal antecedents

against this petitioner. When such being the case, I do not find

any grounds to enlarge the petitioner on bail in a successive bail

petition and there is no changed circumstance to enlarge the

petitioner on bail in a successive bail petition.

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

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

ST