Karnataka High Court

Arjun Kirshnai (A2) vs The State, Through The on 28 February, 2024

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                         NC: 2024:KHC:8315
                                                       CRL.P No. 68 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 28TH DAY OF FEBRUARY, 2024

                                            BEFORE
                         THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                              CRIMINAL PETITION NO.68 OF 2024
                   BETWEEN:

                   1.    ARJUN KIRSHANI (A2),
                         S/O SADANA KIRSHANI,
                         AGED ABOUT 41 YEARS,
                         SAGAR KECHHA VILLAGE,
                         MACHAKUNDA TAHASIL AND POLICE STATION,
                         KORAPUT DIST-KORAPUT,
                         STATE-ODISHA.

                   2.    KUSHA ARLAB(A3),
                         S/O LABA ARLAB,
                         AGED ABOUT 35 YEARS,
                         PATALUNG VILLAGE,
                         NONDPUR TAHASIL,
                         PADAVA POLICE,
Digitally signed         S KORAPUT, DIST-KORAPUT,
by V KRISHNA             STATE-ODISHA.
Location: High
Court of                                                     ...PETITIONERS
Karnataka          (BY SRI. DR. SUSANTKUMAR KANUNGO, ADVOCATE FOR
                       SMT. SANDHYA JAMADAGNI., ADVOCATE)

                   AND:

                         THE STATE, THROUGH THE
                         POLICE INSPECTOR
                         MADIWALA POLICE STATION,
                         BANGALORE - 560 068,
                         REPRESENTED BY THE
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                                            NC: 2024:KHC:8315
                                         CRL.P No. 68 of 2024




    STATE PUBLIC PROSECUTOR
    HIGH COURT OF KARNATAKA,
    BANGALORE - 560 001.
                                               ...RESPONDENT
(BY SMT. K.P. YASHODHA, HCGP)

     THIS CRL.P IS FILED U/S 439 OF CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN SPL.C.NO.1742/2023
(CR.NO.91/2023) OF MADIVALA P.S., BENGALURU CITY FOR
THE OFFENCE P/U/S 8(c),20(b),21(c),22(c) OF NDPS ACT
WHICH IS NOW PENDING FOR TRIAL BEFORE THE LEARNED
TRIAL COURT.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:

                         ORDER

Accused Nos.2 and 3 in Spl.C.C.No.1742/2023

pending before the Court of XXXIII Addl. City Civil and

Sessions Judge and Special Judge for NDPS cases at

Bengaluru arising out of Crime No.91/2023 registered by

Madivala Police Station, Bengaluru City, for the offences

punishable under Sections 20(b), 8(c), 21(c), 22(C) of

Narcotic Drugs & Psychotropic Substances Act, 1985 (for

short, 'NDPS Act') are before this Court under Section 439

of Cr.P.C,

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2. Heard the learned counsel appearing for the

parties.

3. FIR in Crime No.91/2023 was registered by the

Madivala Police Station, Bengaluru City against Jayaram

Khilla and the petitioners herein for the aforesaid offences

on the basis of report dated 30.04.2023 submitted by the

Inspector of Police attached to the Madivala Police Station,

Bengaluru. In the report dated 30.04.2023, it is averred

that, when the informant was in the police station, he

received a credible information that three persons, who

were standing near BMTC Bus stop, Silk Board junction

were making attempts to sell the contraband article

Hashish oil to the public. On receipt of such an

information, the informant allegedly entered such an

information in the General Diary and after obtaining

permission from his senior officer, raided the alleged spot

and apprehended three persons, who are arraigned as

accused Nos.1 to 3 in the present case and from their

possession 1 kg 530 grams of Hashish oil and 1 kg 140

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grams of ganja were seized and subjected to seizure

mahazar. Thereafter, the seized contraband articles and

the accused were brought to the police station and FIR

was registered against them. Subsequently, the accused

were produced before the jurisdictional Court and

remanded to judicial custody. Investigation in the case is

completed and charge sheet has been filed. The bail

application filed by the petitioners before the trial Court

was rejected on 10.11.2023.

4. Learned counsel appearing for the petitioner

submits that, earlier petitioner No.1 had approached this

Court in Crl.P.No.5819/2023 and said petitioner was

withdrawn with liberty to file fresh petition after charge

sheet is filed. Therefore, the petitioners are before this

Court.

5. He submits that, admittedly there is no seizure

in the present case from the petitioners herein. Seizure is

from the custody of accused No.1. There is no compliance

of Section 50 of the NDPS Act in the case. He submits that

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even Section 42 of the NDPS Act has not been complied in

the present case. Investigation in the case is completed

and charge sheet has been filed. Accordingly, he prays to

allow the petition.

6. Per contra, learned HCGP has opposed the bail

application. She submits that, the petitioners were found

along with accused no.1 and from their possession

commercial quantity of contraband article are seized.

Therefore, it is very clear that the petitioners who are

accused Nos.2 and 3 were in conscious possession of

contraband articles. In support of her arguments, she has

relied on the judgment of the Hon'ble Supreme Court in

the case of UNION OF INDIA THROUGH NARCOTICS

CONTROL BUREAU, LUCKNOW V. MD. NAWAZ KHAN -

CRIMINAL APPEAL NO.1043 OF 2021 DISPOSED OF ON

22.09.2021.

7. The material on record would go to show that,

the first informant had received credible information about

three persons who were selling contraband articles near

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BMTC Bus stop, Silk Board junction, when he was in Police

Station on 30.04.2023. Though in the complaint it is

mentioned that the first informant has reduced the

information received by him in General Diary of the Police

Station, it is not found that he had forwarded such

information which he had reduced into writing to his

higher officer. Therefore, prima-facie it is seen that there

is no strict compliance of Section 42 of the NDPS Act in the

present case. Undisputedly, the seizure of contraband

articles Hashish oil as well as Ganja is from the backpack

bag which accused No.1 was holding in his hand. There is

no seizure of any contraband articles from the possession

of the petitioners herein, who are arraigned as accused

Nos.2 and 3 in the case.

8. The material on record would go to show that,

accused No.1 was holding backpack bag in his left hand

and at the request of the police, he had handed over the

same to them and from the said bag, the contraband

articles allegedly Hashish oil and Ganja were seized.

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Therefore, it is very clear that, seizure is from the

possession of accused No.1. Under the circumstances,

compliance of Section 50 of the NDPS Act becomes

mandatory.

9. The material on record would go to show that,

there is no such compliance of Section 50 of the Act in the

present case. The Hon'ble Supreme Court in the case of

S.K. RAJU ALIAS ABDUL HAQUE ALIAS JAGGA v.

STATE OF WEST BENGAL- (2018) 9 SCC 708 has held

that, if there is a recovery from a bag carried from the

accused it would amount to seizure from his possession

and therefore, compliance of Section 50 of the NDPS Act

becomes mandatory.

10. In the judgment of the Hon'ble Supreme Court

in the case of MD. NAWAZ KHAN (supra) on which reliance

has been placed by the learned HCGP, the seizure of

contraband article was from the Car, in which the accused

persons were traveling together. It is under these

circumstances, it has been held that, the accused persons

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who are traveling in the Car were in conscious possession

of contraband article, which was seized from the Car.

Therefore, the said judgment cannot be made applicable

to the facts and circumstances of the present case.

Investigation in the present case is completed and charge

sheet has been filed.

11. The learned counsel appearing for the

petitioners submits that, the petitioners do not have

criminal antecedents and said submission is not seriously

disputed by the learned HCGP. The apprehension of the

learned HCGP that securing the presence of accused who

hail from Orissa State would be difficult can be taken care

of by imposing proper conditions.

12. Accordingly, the following:-

ORDER

The petition is allowed.

The petitioners are directed to be enlarged on bail in Crime No.91/2023 of Madivala Police Station registered for the offences punishable under Sections 20(b), 8(c), 21(c), 22(C) of the NDPS Act, subject to the following conditions:

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a) The petitioners shall execute a personal bond for a sum of Rs.1,00,000 (Rupees One Lakh only) each with two sureties (out of which one surety shall be local surety) for the likesum, to the satisfaction of the jurisdictional Court;

b) The petitioners shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts their appearance for valid reasons;