Karnataka High Court
Sri Aneesh P D vs Union Of India on 29 February, 2024
-1-
NC: 2024:KHC:8554
CRL.P No. 11853 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO.11853/2023(439)
BETWEEN:
SRI ANEESH P. D.,
S/O. DEVASIA,
AGED ABOUT 32 YEARS,
R/AT: PULICHAMAKKAL,
MADACKAL,
PAYYAVOOR,
KANNUR, KERALA - 670 633.
...PETITIONER
(BY SRI AJAY KUMAR V., ADVOCATE)
AND:
UNION OF INDIA, NCB, BZU,
REP BY SPP.
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
Digitally
signed by
(BY SRI SHRIDEVI BHOSALE MARUTI, ADVOCATE)
MANJANNA
MANJANNA E
E Date:
2024.03.04
11:29:27
+0530
THIS CRL.P IS FILED U/S.439 CODE OF CRIMINAL
PROCEDURE, PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
SPL.C.NO.662/2021 REGISTERED BY THE UNION OF INDIA, NCB,
BZU, PENDING BEFORE THE HON'BLE CITY CIVIL AND SESSIONS
JUDGE AND SPL. JUDGE (NDPS), BENGALURU, FOR THE OFFENCES
PUNISHABLE UNDER SECTION 8(C) READ WITH SECTIONS 20(B),
25, 27, 27A, 28 AND 29 OF THE NDPS ACT 1985, IN THE INTEREST
OF JUSTICE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
-2-
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CRL.P No. 11853 of 2023
ORDER
The petitioner-accused No.2 is before this court seeking
grant of bail under Section 439 of Cr.P.C. in
Spl.C.C.662/2021 (NCB.F.No.48/1/18/2020BZU) - Union of
India, Narcotics Control Bureau, Bangalore Zonal Unit,
pending on the file of XXXIII Addl. City Civil and Sessions
Judge and Special Judge (NDPS) Bengaluru (CCH:33) for the
offences punishable under Sections 8(c) r/w 20(b), 27,
27(A), 28 & 29 of Narcotic Drugs and Psychotropic
Substance Act, 1955 (for short the 'NDPS Act').
2. Heard Sri.Vijaykumar V. learned counsel for the
petitioner and Smt.Shridevi Bhosale Maruti, learned counsel
for the respondent. Perused the materials on record.
3. Learned counsel for the petitioner submitted that
the petitioner is arrayed as accused No.2. He has not
committed any offence, but was apprehended on
10.11.2020. Since then, he is in judicial custody. Till today,
the trial court has not concluded the trial and therefore,
detention of the petition in custody would amount to pre-trial
punishment.
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4. Learned counsel submitted that accused Nos.1
and 3 who are similarly placed are already granted bail on
medical ground and accused Nos.4 and 5 have also granted
bail. Therefore, it is only the petitioner who is in custody and
there are no reasons to detain him in custody. The petitioner
is the permanent resident of the address mentioned in the
cause title to the petition and is ready and willing to abide by
any of the conditions that would be imposed by this court.
5. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in the case of Mahmood Kurdeya
vs Narcotics Control Bureau in Criminal appeal
No.1570/2021, to contend that, when there is inordinate
delay in trial, the accused is entitled for bail. He also placed
reliance on the decision of the Hon'ble Apex Court in the case
of State of Kerala vs Raneef in Criminal Appeal
No.3/2011, to contend that allowing incarceration in prison
will violate Article 21 of the Constitution of India and
therefore, the petitioner is entitled for bail. Hence, he prays
to allow the petition.
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6. Per contra, learned counsel for the respondent
opposing the petition submitted that this is the third
successive petition filed by the petitioner seeking similar
relief. On both the earlier occasions, the petitions were came
to be dismissed on merits. She submitted that charge sheet
is filed and the prosecution has already examined two out of
six witnesses who are cited in the charge sheet. Under such
circumstances, it cannot be said that there is any delay in
the trial.
7. Learned counsel submits that accused Nos.1 and
3 even though they were similarly placed were granted
interim bail on medical grounds and bail was not granted on
the merits of the case. Accused Nos.4 and 5 were not found
in possession of the contraband, but they were said to be the
suppliers of the contraband. Under such circumstances, they
were granted bail. Learned counsel for the respondent
submitted that in Mahmood Kurdeya (supra), the Hon'ble
Apex Court considered the fact that even though the accused
was in judicial custody and the charge sheet was filed on
23.09.2018, the trial had not taken place even after lapse of
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three years. Under such circumstances, it was held that
accused was entitled for bail. In State of Kerala (supra),
the facts and circumstances are entirely different and it was
under TADA Act. Therefore, both the decisions of the Hon'ble
Apex Court are not applicable to the facts of the present
case. Hence, she prays for dismissal of the petition.
8. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would
arise for my consideration is:
"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
9. Petitioner who is accused No.2 had approached
this court twice and the petitions were came to be dismissed.
In Crl.P.No.5489/2021, the petitioner had made out similar
grounds and also on merits contending that he is entitled to
be enlarged on bail. The contentions of the petitioner were
NC: 2024:KHC:8554
considered on merits and it was held that he is not entitled
for grant of bail, as he along with accused Nos.1 and 3 were
found in possession 3 kgs of hashish, which was seized in the
presence of the panchas. It is also held that Section 37(1)(b)
of NDPS Act, is applicable to the fact of the case and there
are no basis for forming an opinion that the accused was not
guilty of the offence alleged.
10. On facts, it is not in dispute that prosecution has
cited six witnesses in the charge sheet. It is stated that two
witnesses are already examined. Under such circumstances,
it cannot be said that there is inordinate delay in the trial.
Even though it is contended that accused Nos.1 and 3 who
are similarly placed are already enlarged on bail, it is made
clear that both the accused were granted interim bail on
medical grounds. Under such circumstances, the petitioner is
not entitled for parity.
11. Even though learned counsel for the petitioner
placed reliance on two decisions of the Hon'ble Apex Court
referred to above, the facts and circumstances of both the
cases are entirely different. In Mahmood Kurdeya (supra),
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even tough the charge sheet was filed during September,
2018, neither the charge was framed nor the trial has
commenced by the trial court. Under such circumstances, the
Apex Court held that accused is entitled for bail. The second
judgment relied on by the learned counsel for the petitioner
is under TADA Act and facts and circumstances are entirely
different. Therefore, I am of the opinion that the same
cannot be made applicable to enlarge the petitioner on bail.
12. Accordingly, I answer the above point in the
negative. The petition is dismissed.
SD/-
JUDGE
MBS/CT-ASC
