Karnataka High Court

Sangi Reddy @ Tilak Sai vs Union Of India on 4 June, 2024

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                    NC: 2024:KHC:19139
                                                CRL.P No. 2006 of 2024




                      IN THE HIGH COURT OF KARNATAKA

                                AT BENGALURU

                     DATED THIS THE 4TH DAY OF JUNE, 2024

                                   BEFORE
               THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY


                   CRIMINAL PETITION NO.2006 OF 2024 (439)
            BETWEEN:

               SANGI REDDY @ TILAK SAI
               S/O SANGIREDDY RAMAKRISH,
               24 YEARS, NGR LAYOUT
               BOMMANAHALLI NEAR
               SILK BOARD, BTM LAKE LEFT SIDE AREA
               BANGALORE - 560068
                                                         ...PETITIONER
            (BY SRI K.S. VISHWANATHA, ADVOCATE)
            AND:

               UNION OF INDIA
Digitally
               NARCOTICS CONTROL BUREAU
signed by
SHILPA R
               BANGALORE ZONAL UNIT
TENIHALLI      THROUGH INTELLIGENCE OFFICER
Location:
HIGH           7/1 AND 2 PRIYANK VILLAS RAMANA
COURT OF
KARNATAKA      GARDEN, KATTIGENAHALLI BAGLUR
               MAIN ROAD, POST AIR FORCE STATION,
               YELAHANKA BANGALORE 560063
               REPRESENTED BY LEARNED
               SPECIAL PUBLIC PROSECUTOR
                                                        ...RESPONDENT
            (BY SRI AJAY PRABHU M., ADVOCATE)


                 THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO
            ENLARGE HIM ON BAIL IN NCB CRIME NO.48/1/29/2023/BZU
            OF NARCOTICS CONTROL BUREAU, BANGALORE ZONAL UNIT,
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                                            NC: 2024:KHC:19139
                                        CRL.P No. 2006 of 2024




BANGALORE, FOR OFFENCE P/US/ 8(c) R/W 20(b)(ii)(A), 22(c),
23(c), 27, 27A, 28 AND 29 OF NDPS ACT, WHICH IS PENDING
IN SPL.C.C.NO.17/2024, ON THE FILE OF HONBLE XXXIII
ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT
FOR NDPS, BANGALORE, ON SUCH TERMS AND CONDITIONS.

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

                            ORDER

Accused No.1 in Special C.C.No.17/2024 pending on

the file of learned XXXIII Additional City Civil and Sessions

Judge and Special Court for NDPS, Bengaluru arising out

of NCB Crime No.48/1/29/2023/BZU, registered by

Narcotics Control Bureau, Bengaluru Zonal Unit, Bengaluru

for the for the offences punishable under Sections 8(c)

read with Sections 20(b)(ii)(A), 22(c), 23(c), 27, 27A, 28

and 29 of Narcotic Drugs and Psychotropic Substances Act,

1985 (for short 'NDPS Act'), is before this Court under

Section 439 of Cr.P.C. seeking regular bail.

2. Heard learned counsel for the petitioner and the

learned counsel for the respondent, who has filed

statement of objections.

NC: 2024:KHC:19139

3. It is the case of the prosecution that on

23.06.2023 at about 6.30 hours, credible information was

received by the Intelligence officer of Narcotic Control

Bureau (NCB), Bengaluru that a parcel bearing register

post shipment with tracking No.RH082913015GB is lying

at Bannerghatta Post Office, Bengaluru-76 which was

suspected to be containing narcotics drugs and

psychotropic substance. On receiving such information,

the Intelligence Officer took necessary directions from his

higher officer and went to the post office along with his

team and collected the aforesaid parcel from the Post

Master and opened the same. The said parcel was

addressed to the petitioner and it was sent from United

Kingdom. Inside the parcel 96 yellow coloured pills were

found which totally weighed 44.13 grams. In addition nine

jelly type substance weighing 17.01 grams was also found.

The aforesaid contraband articles were identified as MDMA

pills and ganja gummies and were seized under mahazar

and subsequently the sample drug was forwarded to the

Forensic Science Laboratory (FSL) for chemical

NC: 2024:KHC:19139

examination. On 24.06.2023 the Intelligence Officer

delivered a dummy parcel to the petitioner herein when he

arrived at the Bannerghatta Post Office for collecting the

parcel which was addressed to him. Subsequently, his

statement was recorded and a search was conducted by

the police in the house of Vimal (accused No.2) and 141

grams of hashish oil was recovered. Therefore, aforesaid

Vimal and Binod Prasad were summed by the NCB officers.

All the three accused persons were arrested and produced

before the court and remanded to judicial custody on

26.06.2023. The bail application filed by petitioner before

the Trial Court was dismissed. Thereafter, the petitioner

had approached this Court in Crl.P.No.7933/2023 and the

said petition was dismissed as withdrawn on 27.09.2023

with liberty to approach this Court after the charge-sheet

is filed. After filing of charge-sheet the petitioner had

approached the Trial Court in Crl.Misc.No.796/2024 and

the Trial Court had dismissed the said petition on

30.01.2024. Therefore, he is before this Court.

NC: 2024:KHC:19139

4. Learned counsel for the petitioner submits that

petitioner has been falsely implicated in the present case.

He submits that the dummy parcel was delivered to the

petitioner by Controlled Delivery Mechanism. There is no

compliance of requirement of Section 50A of the NDPS

Act. In the present case, the permission from the

competent authority has not been obtained. He submits

that the petitioner who is aged about 24 years is in

custody from 26.06.2023 onwards. The investigation in

the case is completed and charge-sheet has been filed. He

has placed reliance on the order passed by this Court in

Crl.P.No.6853/2023 connected with Crl.P.No.7039/2023

and Crl.P.No.7344/2023 disposed of on 12.09.2023 in

support of his arguments.

5. Learned counsel appearing for the respondent

has opposed the petition by filing statement of objections.

He submits that the petitioner is a habitual offender, who

has two criminal cases registered against him for the

offences punishable under the NDPS Act. He submits that

NC: 2024:KHC:19139

the contraband articles seized in the present case is of

commercial quantity and in view of Section 37(1)(b) of the

Act, petitioner's bail application is liable to be rejected. In

support of his arguments, he has placed reliance on the

decision of the Hon'ble Apex Court in the case of

Narcotics Control Bureau vs. Mohit Aggarwal1.

6. Material on record would go to show that on

receipt of credible information the officers attached to NCB

had visited the post office at Bannerghatta and had

collected the suspected parcel which was allegedly in the

name of the petitioner and had opened the same on

23.06.2023. In the said parcel, they had found 44.13

grams of contraband articles allegedly MDMA pills and

17.01 grams of contraband articles allegedly ganja

gummies.

7. It is not in dispute that the samples drugs were

forwarded to the FSL for the purpose of chemical

examination and a report is now received that the sample

AIR 2022 SC 3444

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drugs have tested positive to MDMA and ganja. Therefore,

the contraband articles seized in the present case is of

commercial quantity. Material on record would go to show

that on 24.06.2023 the officers of NCB had delivered a

dummy parcel to the petitioner when he arrived at the

post office in Bannerghatta by undertaking Controlled

Delivery Mechanism. Therefore, compliance under

Section 50A of the NDPS Act becomes mandatory.

8. Section 50A of the Narcotic Drugs And

Psychotropic Substances Act, 1985 reads as follows :-

           "50A.     Power        to      undertake    controlled
     delivery.--

The Director General of Narcotics Control Bureau constituted under sub-section (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to--

(a) any destination in India;

(b) a foreign country, in consultation with the competent authority of such foreign country to which

NC: 2024:KHC:19139

such consignment is destined, in such manner as may be prescribed."

9. In the present case, undisputedly the

requirement of Section 50A of the NDPS Act has not been

complied and no authorization as provided under the said

provision of law was obtained.

10. In the case of Mr.Junaid Hussain Haveri and

others vs. Union of India, Bengaluru disposed of on

12.09.2023, this Court in paragraph 23 has observed as

follows :-

"Since the consignment/parcel was opened even before it was delivered to the addressee and the contraband article found in the consignment/parcel was seized under a parnchanama in the absence of accused, the only option open for the NCB offices to connect the accused to the crime was by identifying them through the technique known as "controller delivery".

However, since the NCB officers have not complied with mandatory requirements of section 50A of the NDPS Act before undertaking the exercise of "controlled delivery", the report of "controlled

NC: 2024:KHC:19139

delivery" on which reliance has been placed by the prosecution cannot be considered since the exercise of "controlled delivery" gets vitiated for non- compliance of the mandatory requirement under section 50A of the NDPS Act."

11. In the case of Mohit Aggarwal (supra) the

Hon'ble Supreme Court having taken into consideration

the rigor under Section 37(1)(b) of NDPS Act has observed

that if the court has reason to believe that the accused is

guilty or if the court has reason to believe that accused

would not commit similar offence in future bail can be

granted.

12. In the case of Mohd. Mulsim Alias Hussain

vs. State (NCT of Delhi)2 in paragraphs 20 and 21 the

Hon'ble Supreme Court has observed as follows :-

"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

2023 SCC Online SC 352

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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 petitioner is a youngster, who is aged about

24 years and he is in judicial custody since 26.06.2023.

Learned counsel for the respondent has brought to the

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notice of this Court that the petitioner was involved in two

other criminal cases registered under the provisions of

NDPS Act and has produced the FIR of the said two

criminal cases before this Court. The FIR in Crime

No.495/2020 registered against the petitioner by

Rajanagaram Police Station, Andrapradesh and in the said

case petitioner has been arrayed as accused No.6 and the

contraband articles seized in the said case is 216 grams of

ganja which undisputedly is of small quantity. In Crime

No.183/2021 registered by the V.Madhugula Police

Station, Vishakhapatnam district, Andrapradesh the

petitioner is arrayed as accused No.5 and in the said case

the contraband article ganja seized totally weighed 3

kilograms which is an intermediate quantity. Undisputedly

the petitioner is on bail in the said two cases.

14. In the present case which is registered in the

month of June 2023 against the petitioner, he has been

arrested after the dummy parcel was delivered to him by

undertaking Controlled Delivery Mechanism by the officers

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of NCB. Undisputedly, the officers had no authorization as

required under Section 50A of the NDPS Act for

undertaking such a delivery and the same would go to the

root of the matter. Under the circumstances, the rigor

under Section 37(1)(b) of the NDPS Act cannot be strictly

made applicable to the petitioner, who is in custody for the

last nearly one year. Therefore, I am of the view that the

petitioner's prayer for grant of regular bail is required to

be answered affirmatively by imposing stringent

conditions. Accordingly, the following :

ORDER

The criminal petition is allowed.

The petitioner is directed to be enlarged on bail in NCB Crime No.48/1/29/2023/BZU of Narcotic Control Bureau, Bangalore Zonal Unit, Bangalore registered for the offences punishable under Sections 8(c) read with Sections 20(b)(ii)(A), 22(c), 23(c), 27, 27A, 28 and 29 of NDPS Act pending in Special C.C.No.17/2024 on the file of Hon'ble XXXIII Addl. City Civil and Sessions Judge and Special Court for NDPS, Bangalore, subject to the following conditions:

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NC: 2024:KHC:19139

a) Petitioner shall execute personal bond for a sum of `2,00,000/- with two sureties for the likesum, and out of the same one surety shall be local surety 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;