Karnataka High Court
Afzal Khan @ Apjal Khan vs The State Of Karnataka on 22 February, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:7592
CRL.P No. 10368 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL PETITION NO.10368 OF 2023 (439)
BETWEEN:
AFZAL KHAN @ APJAL KHAN
S/O. ISMAIL KHAN
MAJOR IN AGE: 36
RESIDING AT NO. 45, 4TH CROSS
MODI ROAD, NEAR MODI MASJID, DJ
BENGALURU-560045.
...PETITIONER
(BY SRI. JAGRUT, ADVOCATE FOR
SRI. SUYOG HERELE E., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH MADANAYAKANAHALLI P.S.,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALURU - 560001.
...RESPONDENT
Digitally
signed by (BY SRI. JAYARAM SIDDI, HCGP)
SAMREEN
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date:
2024.02.23
17:15:39 THIS CRL.P IS FILED U/S 439 CR.PC BY THE ADVOCATE FOR
+0530
THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE
PLEASED TO DIRECT THE RESPONDENT / POLICE TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.319/2022 REGISTERED BY THE
MADANAYAKANAHALLI POLICE STATION, BANGALURU RURAL
DISTRICT, FOR THE OFFENCE P/U/S 20(b) OF NDPS ACT, WHICH IS
PENDING BEFORE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND
SPECIAL JUDGE (NDPS) BENGALURU.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC:7592
CRL.P No. 10368 of 2023
ORDER
Heard Shri. Jagrut representing Shri. Suyog Herele E,
learned counsel for the petitioner and Shri. Jayaram Siddi,
learned High Court Government Pleader for respondent-State.
2. Petition under Section 439 of Cr.P.C., with the
following prayer:
"WHEREFORE, the Petitioner most humbly
prays that this Hon'ble Court may kindly be
pleased to:-
a) Allow the petition;
b) Direct the Respondent/Police to
enlarge the Petitioner on bail in Crime
No.319/2022 registered by the
Madanayakanahalli Police Station, Bengaluru
Rural District for the offences punishable under
Sections 20(b) of Narcotic Drub and
Psychotropic Substances Act, 1985, which is
pending before Principal District and Sessions
Judge and Special Judge (NDPS), Bengaluru
Rural, Bengaluru in the interest of justice and
equity."
3. This is a successive bail request. Earlier bail
petition was dismissed as withdrawn at the request of the
accused/petitioner.
4. Facts of the case in brief which are utmost
necessary for disposal of the present petition are as under:
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4.1. On 03.07.2022 at about 1.00 p.m, head of the raid
party received credible information that accused persons are
possessing ganja in two plastic bags and the same is kept in
red colour Getz car bearing registration No.KA-50/M-6711 and
KTM Duke motor bike bearing registration No.KA-03/HN-9576,
which was meant for selling it to the general public.
4.2. On receipt of such information, head of the raid
party formed a raid team comprising of himself, his sub-staff,
two independent pancha witnesses and a gazetted Officer and
they proceeded to the spot. As per the information they raided
the persons including the accused and seized ganja to the tune
of 25 k.gs. Accused persons were arrested and they were sent
to the judicial custody.
5. The matter was investigated further and charge
sheet came to be filed and which is now pending in Special
Case No.11/2023 on the file of Principal District and Sessions
Judge and Special Judge (NDPS), Bengaluru Rural, Bengaluru.
6. After charge sheet came to be filed, accused -
petitioner sought for grant of bail before the learned Special
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Judge which came to be rejected by order dated 19.07.2023.
Thereafter, the petitioner is before this Court.
7. Reiterating the bail grounds, Shri. Jagrut, learned
counsel for the petitioner, vehemently contended that since the
charge sheet is filed accused is entitled to be enlarged on bail
and sought for allowing the petition.
8. Per contra, Shri. Jayaram Siddi, learned High Court
Government Pleader for respondent-State opposes the bail
grounds by contending that the seized ganja is to the tune of
25 k.gs. which is of commercial quantity. Hence, the provisions
of Section 37 of the Narcotic Drugs And Psychotropic
Substances Act, 1985 (for short 'NDPS Act'), is applicable to the
facts of the case wherein the accused has to make out a case
that he is not guilty of the offence alleged against him.
9. He further argued that no such material is placed
on record before this Court to establish that the accused is not
guilty of the offence alleged against him and as such, sought
for dismissal of the claim petition.
10. Having heard the parties in detail, this Court
perused the material on record meticulously.
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11. On such perusal of the material on record, it is
crystal clear that on the credible information received by the
head of the raid party who is the complainant in this case by
name Shri. Dalegowda D, who is the Police Sub Inspector of
Madanayakanahlly Police Station, raided the accused and seized
25 k.gs., of ganja in the custody of the accused.
12. Admittedly, the seized NDPS is of commercial
quantity and therefore, as rightly contended by the learned
High Court Government Pleader, Section 37 of the NDPS Act, is
to be applied to the facts of the case.
13. It is settled principles of law and requires no
emphasis that Section 37 of the NDPS Act would override the
general provisions of the bail as is contemplated under Section
439 of the Code of Criminal Procedure, 1973 (for short
'Cr.P.C.'), in view of seized NDPS is of commercial quantity.
14. The bail grounds on close scrutiny, does not make
out atleast a plausible case that accused is not guilty of the
offence alleged against him.
15. On the contrary the grounds raised in the bail
petition are in the nature that the accused is innocent. In view
of the specific language that is applied under Section 37 of the
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NDPS Act, general presumption applicable to the other accused
persons who were accused of offences under the Indian Penal
Code, 1860 (for short 'IPC'), or other penal provisions is not
available to a person who has been arrested under the
provision of the NDPS Act and seized NDPS quantity is a
commercial quantity.
16. Therefore, the bail grounds are hardly sufficient for
the consideration of the bail request.
17. Further, view of this Court is fortified by the
judgment of the Hon'ble Apex Court in the case of the State of
Kerala and others Vs. Rajesh reported in (2020) 12 SCC
122.
18. Pertinently, the head of the raid party did not
possess any enmity or animosity against the accused petitioner
to implant the seized NDPS substance to the custody of the
accused only with an intention to foist a false case against the
petitioner herein. Further, such a huge quantity of seized NDPS
substance is not a easily available commodity in the society.
19. Taking note of these aspects of the matter, the
material available on record would definitely disentitle the
petitioner from obtaining an order of grant of bail by resorting
NC: 2024:KHC:7592
to the power vested in this Court under Section 37 of the NDPS
Act.
20. Further, any further opinion if expressed on the
merits of the matter would definitely affect the rights of the
parties during the trial one way or the other.
21. Accordingly, without holding a mini trial if the
material on record is appreciated in the light of the arguments
put forth on behalf of the petitioner, this Court is of the
considered opinion that the petitioner is not entitled for grant of
bail atleast at this stage.
22. Hence, the following order is passed:
ORDER
Bail petition is rejected.
Sd/-
JUDGE
SMM
