Karnataka High Court
Sri Akshath Kumar vs The State Of Karnataka on 30 October, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:43761
CRL.P No. 9664 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 9664 OF 2024
BETWEEN:
SRI AKSHATH KUMAR
S/O DAMODARA BELCHADA,
AGED ABOUT 34 YEARS,
R/AT NO. 2-318, VAIDYANATHA NAGARA
BIGAMBIALA HOUSE,
KOTEKARU VILLAGE DERALAKATTE POST
BELMA, ULLAL TALUK,
PIN CODE - 575020.
...PETITIONER
(BY SRI. ARUNA SHYAM, SENIOR COUNSEL FOR
SRI. SUYOG HERELE E., ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH ULLALA CRIME POLICE STATION,
REPRESENTED BY SPP,
Digitally signed by
REKHA R HIGH COURT OF KARNATAKA,
Location: High Court
of Karnataka HIGH COURT BUILDING,
BENGALURU - 560001.
...RESPONDENT
(BY SRI. CHENNAPPA EERAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. (UNDER SECTION 483 BNSS) PRAYING TO ALLOW
THIS CRIMINAL PETITION AND DIRECT THE RESPONDENT
ULLALA CRIME POLICE TO ENLARGE THE PETITIONER ON
REGULAR BAIL IN CONNECTION WITH CR.NO.85/2023 (ON THE
FILE OF THE LEARNED PRINCIPAL DISTRICT AND SESSIONS
JUDGE, D.K., MANGALURU), REGISTERED BY ULLALA POLICE,
FOR THE ALLEGED OFFENCES UNDER SECTIONS 8(C), 21,
21(C) OF NDPS ACT, 1985.
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NC: 2024:KHC:43761
CRL.P No. 9664 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
Accused No.1 in Spl.C.No.8/2024 pending before the
Court of Principal District and Sessions Judge, D.K.
Mangaluru, arising out of Crime No.85/2023 registered by
Ullal Police Station Dakshina Kannada District, Mangaluru
city, for the offences punishable under Sections 8(c), 21,
21(c) of the 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 parties.
3. FIR in Crime No.85/2023 was registered by Ullal
Police Station Dakshina Kannada District, Mangaluru city,
for the aforesaid offence against petitioner herein and two
other on the basis of first information dated 16.06.2023
received from Sharanappa Bhandari, Sub-inspector of
Police attached to CCB Mangaluru Division, Dakshina
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Kannada District. Petitioner who was arrested on
16.06.2023, was subsequently produced before the
jurisdictional Court and remanded to judicial custody.
Investigation in the case is completed and charge sheet
has been filed against three persons for the aforesaid
offences. Petitioner herein is arrayed as accused No.1 in
the charge sheet.
4. Bail application filed by the petitioner before the
trial Court in SPl.C No.8/2024 was rejected on
01.08.2024. Therefore, he is before this Court.
5. Learned Senior Counsel for the petitioner
submits that petitioner in custody for the last more than
16 months, he has no other criminal antecedents. Trial in
the case is yet to commence. Material on record would go
to show that there is no compliance of Section 50 of NDPS
Act in the present case, and therefore the seizure itself
becomes vitiated in view of the judgment of the Hon'ble
Supreme Court in the case of State of Rajastan vs
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Paramananda and another. Accordingly, he prays to
allow the petition.
6. Per contra, learned HCGP has opposed the
petition and he submits that seized contraband article is of
commercial quantity and therefore, petitioner's prayer
cannot be granted in view of the rigor under Section
37(1)(b) of NDPS Act. Accordingly, he prays to dismiss the
petition.
7. Perusal of the material available on record
would go to show that on the basis of the credible
information received by the first informant on 16.06.2023
at about 11.00 am, after obtaining permission from her
higher officer, a raid was conducted to the alleged spot,
where accused persons were attempting to sell contraband
article in public. Petitioner herein was apprehended at the
spot and from his possession 72 grams of contraband
article allegedly MDMA was seized. The apprehended
accused and seized contraband article which was
subjected to panchanama were brought back to the Police
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Station and FIR in crime No.85/2023 was registered
against the petitioner herein and two others based on the
confession statement of the petitioner.
8. Perusal of the notice issued to the petitioner in
compliance of the requirements of the Section 50 of NDPS
Act, would go to show that the petitioner was not informed
his right to be searched in the presence of the
Jurisdictional Magistrate. In the notice that was issued in
compliance of Section 50 of NDPS Act., it is mentioned
that the petitioner has a right to be searched in the
presence of Gazetted officer or a Police officer. Therefore,
it is apparent the notice purportedly issued in compliance
of Section 50 of the NDPS Act was not in accordance with
law. The Hon'ble Supreme Court in the case of State of
Rajastan Vs Paramanand and another, as observed
that search conducted in violation of Section 50 of the
NDPS Act vitiated the seizure.
9. In addition to the same, the petitioner who has
no other criminal antecedents, is in custody for the last
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more than 16 months. Undisputedly, trial in the case is yet
to commence, and the prosecution has cited 30 charge
sheet witnesses in the present case. In the case of Chitta
Biswas Alias Subhas vs. State of West Bengal
reported in 2020 SCC OnLine SC 1536, the Hon'ble
Supreme Court taking into consideration that the accused
was in custody for a period of one year seven months and
there was no sufficient progress in trial, without
expressing any opinion on merits and demerits of the
case, has granted regular bail to the accused. In the case
of Nitish Adhikary alias Bapan vs. State of West
Bengal reported in 2022 SCC OnLine SC 2068 in a case
where charge sheet was filed for the offences punishable
under Sections 21(c) and 37 of the NDPS Act and accused
was in custody for a period of one year seven months, the
Hon'ble Supreme Court has granted regular bail on the
ground that trial is still in the preliminary stage, as only
one witness was examined.
NC: 2024:KHC:43761
10. Considering the period of incarceration and also
the aforesaid aspect of the matter, I am of the view that
without expressing any opinion on the merits/demerits of
the case, petitioner's prayer for grant of regular bail is
required to be answered affirmatively.
11. Accordingly, the following:-
ORDER
The criminal petition is allowed.
The petitioner is directed to be enlarged on bail in
Spl.C.No.8/2024 pending before the Court of Principal
District and Sessions Judge, D.K. Mangaluru, arising out of
Crime No.85/2023 registered by Ullal Police Station
Dakshina Kannada District, Mangaluru city, for the
offences punishable under Sections 8(c), 21 & 21(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985,
subject to the following conditions:
a) The petitioner shall execute a personal bond for
a sum of Rs.2,00,000/- with two sureties for the
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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/-
(S VISHWAJITH SHETTY)
JUDGE
ASN
