Karnataka High Court
Riyaz Pasha @ Giddu vs State Of Karnataka on 7 September, 2023
Bench: S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 5528/2023
BETWEEN:
RIYAZ PASHA @ GIDDU
S/O MEHABOOB PASHA
AGED ABOUT 24 YEARS
R/AT: HOUSE NO.225
1ST CROSS, OPP NO.SHOP OF FAYAZ
GOUSIA NAGAR, MYSURU CITY
MYSURU DISTRICT - 570 019.
...PETITIONER
(BY SRI LATHIF B, ADV.)
AND:
STATE OF KARNATAKA
BY NARASIMHARAJ POLICE STATION
REP. BY SPP, HIGH COURT BUILDING
BANGALORE - 560 001.
...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRL.P FILED U/S 439 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CR. NO.174/2022 IN
SPL.C.NO.247/2023 REGISTERED BY NARASIMHARAJA POLICE
STATION, MYSURU PENDING ON THE FILE OF PRINCIPAL
DISTRICT AND SESSION JUDGE MYSURU FOR THE OFFENCE
P/U/S 20(B)(II)(C) OF NDPS ACT.
THIS PETITION HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, COURT MADE
THE FOLLOWING:
2
ORDER
1. Accused no.1 in Spl. Case No.247/2023 pending
before the Prl. District & Sessions Judge, Mysuru, arising
out of Crime No.174/2022 registered by Narasimharaja
Police Station, Mysuru, for the offences punishable under
Sections 20(b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, 'the Act'),
is before this Court seeking regular bail.
2. Heard the learned Counsel for the parties.
3. On the basis of the complaint dated 23.10.2022
lodged by the Inspector of Police, CCB, Mysuru, the
Station House Officer of Narasimharaja Police Station,
Mysuru, had registered FIR in Crime No.174/2022
against the petitioner and three others.
4. In the complaint, it is averred that the complainant
had credible information that in the house bearing
No.3310 situated at 7th Cross, Mandi Mohalla, Mysuru,
petitioner herein had stored contraband article ganja for
the purpose of sale and he was likely to dispose of the
same. Therefore, after complying with the mandatory
requirement of law, the complainant along with his staff
and independent panch witnesses, had raided the said
house at about 3.20 p.m., and had apprehended the
petitioner who was found in the house selling ganja. On
search, the raiding party had recovered totally 41 Kgs. of
ganja from the said house and the same was seized
under a mahazar. On enquiry, the petitioner who was
apprehended along with the contraband article, had
stated that accused nos.2 to 4 had stored the seized
ganja in the said house and the petitioner was employed
by them to look after the house. He also had stated that
accused nos.2 to 4 were selling ganja and he was not
aware from where they were purchasing and to whom
they were selling.
5. During the course of investigation, accused nos.2
to 4 were also arrested. After completion of investigation,
charge sheet for the aforesaid offence was filed only as
against the petitioner herein and Salma Banu who was
arrayed as accused no.2 in the charge sheet. The bail
application filed by the petitioner before the Trial Court in
Spl. Case No.247/2023 was dismissed on 05.06.2023. It
is under these circumstances, petitioner is before this
Court.
6. Learned Counsel for the petitioner submits that the
petitioner is only an employee who was paid salary for
looking after the house. Undisputedly, the contraband
article belonged to accused no.2 who has been enlarged
on bail in Crl.P.12234/2022. He submits that the material
on record would go to show that the contraband article
ganja was supplied by one Afroz Pasha and accused
nos.2 to 4 having purchased the ganja from Afroz Pasha
had stored the same in the house in question. Though a
draft charge sheet was prepared as against five accused
persons and the petitioner was arrayed as accused no.5
in the draft charge sheet, subsequently the charge sheet
has been filed only as against the petitioner and Salma
Banu. Even though the Investigating Officer had arrested
accused nos.3 & 4 during the course of investigation and
had recorded their confession statement, he submits that
for extraneous reasons charge sheet is not filed as
against the supplier and the purchasers of ganja though
there was sufficient material to show that the said
persons were habitual offenders. He submits that
investigation in the case is completed and charge sheet
has been filed, and therefore, prays to allow the petition.
7. Per contra, learned Addl. SPP has opposed the
petition. He submits that the contraband article seized is
of commercial quantity and in view of Section 37(1)(b) of
the Act, the petitioner is not entitled for bail. He submits
that since there was no sufficient material to connect
accused nos.3 to 5 to the crime, charge sheet was not
filed against them. Accused no.2 had taken the house
bearing No.3310 on rent, and therefore, she has been
arrayed as an accused in the charge sheet. Though the
Investigating Officer had prepared the draft charge sheet
against five accused persons, since the Public Prosecutor
had raised an objection on the ground that there was no
sufficient material as against three persons in the said
draft charge sheet, subsequently the said persons were
dropped from the charge sheet and final charge sheet
was filed only as against two persons. He, accordingly,
prays to dismiss the petition.
8. The material on record would go to show that on
credible information, the complainant had raided the
house bearing No.3310 and had found the petitioner in
the said house. From the said house, the complainant
had totally recovered 41 Kgs. of contraband article ganja
which was seized and subjected to mahazar. During the
course of enquiry at the time of seizure, petitioner had
revealed that he was only an employee of accused nos.2
to 4 and accused nos.2 to 4 had stored the ganja in the
house. He had also stated that accused nos.2 to 4 were
selling ganja to some persons, the particulars of sale
transactions were not aware to the petitioner. It is in this
background, FIR was registered against the petitioner
and accused nos.2 to 4 in Crime No.174/2022.
9. During the course of investigation, accused nos.2
to 4 named in the FIR were arrested. Accused no.2 -
Salma Banu, during the course of her confession
statement had stated that the house in question was
taken on rent by her along with the other two accused.
Even accused nos.3 & 4, during the course of their
confession statement, had stated that they along with
accused no.2 had stored the contraband article ganja in
the house bearing No.3310 situated at 7th Cross, Mandi
Mohalla, Mysuru, and the said contraband article was
supplied to them by one Afroz Pasha. Accused nos.2 to 4
were also remanded to judicial custody at the request of
the Investigating Officer.
10. A draft charge sheet was thereafter prepared as
against five persons. Afroz Pasha was arrayed as accused
no.1 and petitioner was arrayed as accused no.5 in the
said draft charge sheet. Accused nos.2 to 4 in the FIR
were arrayed as accused nos.2 to 4 in the draft charge
sheet. However, surprisingly, the Public Prosecutor had
raised an objection with regard to the charge sheet on
the ground that there was no sufficient material to
proceed against accused no.1 - Afroz Pasha and accused
nos.2 & 4 in the draft charge sheet viz., Afroz Pasha,
Apsari Banu and Irfan Pasha. In view of the objections
raised by the Public Prosecutor, the Investigating Officer
had subsequently filed charge sheet only as against
accused nos.3 & 5 of the draft charge sheet and they
were arrayed as accused nos.1 & 2 in the charge sheet
which was finally submitted in Crime No.174/2022.
11. From the draft charge sheet which was earlier
prepared by the Investigating Officer, it is seen that
accused nos.2 to 4 in the draft charge sheet had
confessed that accused no.1 - Afroz Pasha had supplied
the contraband article ganja to them and they stored the
same in the house which was taken by them on rent.
They had also stated that the petitioner was employed
for the purpose of taking care of the house. Though
prima facie there was sufficient material to proceed
against accused nos.1, 2 & 4 named in the draft charge
sheet, in view of the objections raised by the Public
Prosecutor, the Investigating Officer had prepared a
charge sheet only as against accused nos.3 & 5 of the
draft charge sheet who are now arrayed as accused nos.1
& 2 in the present case.
12. Accused nos.1, 2 & 4 of the draft charge sheet
were persons with criminal antecedents and they had
involved in several similar cases and the material on
record would also go to show that one of them was also
convicted for the offence under the Act. Inspite of
sufficient material available on record, charge sheet was
filed only against accused nos.3 & 5 of the draft charge
sheet. Accused no.3 of the draft charge sheet who is now
arrayed as accused no.2 in the present case is also a
person with criminal antecedents. She has been granted
bail by co-ordinate bench of this Court in
Crl.P.No.12234/2022 disposed of on 25.01.2023. The
seizure is from the house bearing no.3310 and according
to the prosecution accused no.2 had taken the said house
on lease and petitioner was employed to look after the
house. The Hon'ble Supreme Court in the case of MOHD
MUSLIM @ HUSSAIN V. STATE (NCT OF DELHI)
reported in 2023 SCC ONLINE SC 352 at paragraph
Nos.20 and 21 has held as under:-
"20. A plain and literal interpretation of
the conditions under Section 37 (i.e., that Court
should be satisfied that the accused is not guilty
and would not commit any offence) would
effectively exclude grant of bail altogether,
resulting in punitive detention and unsanctioned
preventive detention as well. Therefore, the only
manner in which such special conditions as
enacted under Section 37 can be considered
within constitutional parameters is where the
court is reasonably satisfied on a prima facie look
at the material on record (whenever the bail
application is made) that the accused is not guilty.
Any other interpretation, would result in complete
denial of the bail to a person accused of offences
such as those enacted under Section 37 of the
NDPS Act.
21. The standard to be considered
therefore, is one, where the court would look at
the material in a broad manner, and reasonably
see whether the accused's guilt may be proved.
The judgments of this court have, therefore,
emphasized that the satisfaction which courts are
expected to record, i.e., that the accused may not
be guilty, is only prima facie, based on a
reasonable reading, which does not call for
meticulous examination of the materials collected
during investigation as held in Union of India v.
Rattan Malik."
13. The statement made by the learned Counsel for the
petitioner that the petitioner has no criminal antecedents
has not been opposed by the learned Addl. SPP.
Petitioner was employed by accused no.2 to look after
the house. The investigation in the case is completed and
charge sheet has been already filed. Under the
circumstances, I am of the view that the petitioner's
prayer for grant of regular bail is required to be answered
affirmatively. Accordingly, the following order:
14. The petition is allowed. The petitioner is directed to
be enlarged on bail in in Spl. Case No.247/2023 pending
before the Prl. District & Sessions Judge, Mysuru, arising
out of Crime No.174/2022 registered by Narasimharaja
Police Station, Mysuru, for the offences punishable under
Sections 20(b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, subject to the
following conditions:
a) Petitioner shall execute personal
bond for a sum of Rs.1,00,000/- with two
sureties for the likesum, to the satisfaction of
the jurisdictional Court;
b) The petitioner shall appear
regularly on all the dates of hearing before
the Trial Court unless the Trial Court exempts
his appearance for valid reasons;
c) The petitioner shall not directly or
indirectly threaten or tamper with the
prosecution witnesses;
d) The petitioner shall not involve in
similar offences in future;
e) The petitioner shall not leave the
jurisdiction of the Trial Court without
permission of the said Court until the case
registered against him is disposed off.
SD/-
JUDGE
KK
