Karnataka High Court
Sanjay Majhi vs Union Of India on 23 October, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 10127 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 10127 OF 2024
BETWEEN:
1. SANJAY MAJHI
S/O BANKA MAJHI
AGED ABOUT 39 YEARS
R/AT MOHULAMELANI
GAJAPATI, ODISHA - 761 017.
2. KISAN MAJHI
S/O GUDRI MAJHI
AGED ABOUT 48 YEARS,
R.AT MAHULAMELANI
NUNDRUJU ANTARABA
LUNDRAJU, GAJAPATI
ODISHA - 761 017.
...PETITIONERS
(BY SRI JAGADEESHA H, ADV.)
AND:
Digitally
signed by
NANDINI MS UNION OF INDIA
Location: BY STATE INTELLIGENCE OFFICER
High Court of NARCOTICS CONTROL BUREAU
Karnataka
BENGALURU ZONAL UNIT
BENGALURU - 560 009
REPT BY ITS SPECIAL PUBLIC
PROSECUTOR, HIGH COURT
COMPLEX, BENGALURU - 560 001.
...RESPONDENT
(BY MS. CHANTHANA P, ADV., FOR
SRI MALLANAGOUDA H, ADV.)
THIS CRL.P IS FILED U/S.438 CR.P.C (U/S 482 BNSS)
PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN
SPL.C.NO.2292/2023 (CR.NO.48/1/17/2023/BZU) OF OFFENCE P/U/S
-2-
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CRL.P No. 10127 of 2024
8(C),20(B)(II)(C),28,29 OF THE NDPS ACT OF RESPONDENT
INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU,
BENGALURU ZONAL UNIT PENDING ON THE FILE BEFORE XXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE,
NDPS, AT BENGALURU (CCH-33).
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 Nos.1 and 2 in Spl.C.C.No.2292/2023
pending before the Court of XXXIII Addl. City Civil &
Sessions Judge and Special Judge (NDPS), Bengaluru,
arising out of NCB Crime No.48/1/17/2023/BZU registered
by Narcotics Control Bureau, Bagalore Zonal Unit for the
offences punishable under Sections 8(C) R/w 20b(ii)(C),
28 & 29 of the Narcotic Drugs & Psychotropic Substances
Act (for short, 'NDPS' Act), are before this Court seeking
regular bail.
2. Heard the learned counsel appearing for the
parties.
3. On the basis of credible information received by
the Junior Intelligence Officer of NCB on 25.04.2023, six
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persons, who had arrived in Prashanthi express train
bearing No.18463 in Coach No.S6 from Odisha were
intercepted at KSR railway station, Bengaluru at about
11.45 a.m and on enquiry, they informed that they were
carrying Ganja in eight bags, which they were holding.
They allegedly also informed the officers that one Shilu
Singh had asked them to carry the bags containing Ganja
and deliver the same to him in Bengaluru and for the said
purpose, he had paid a sum of Rs.5,000/- each to them.
The contraband article allegedly Ganja was seized and
subjected to panchanama and thereafter, the seized
contraband articles and the apprehended accused were
brought to the office and FIR was registered against them
for the aforesaid offences. Subsequently, they were
produced before the Court and remanded to judicial
custody. The investigation in the case is completed and a
complaint is already filed before the jurisdictional Court.
The petitioners herein are arraigned as accused Nos.1 and
2 in the charge sheet.
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4. The bail application filed by the petitioner
before the jurisdictional Sessions Court in
Crl.Misc.No.7846/2024 was dismissed on 17.09.2024.
Therefore, they are before this Court.
5. Learned counsel for the petitioners submits that
the petitioners do not have any criminal antecedents and
they are in custody from 26.04.2023 onwards. Accused
Nos.3 to 6 have been already granted bail by this Court.
He submits that there is no compliance of Section 42,
Section 50 and Section 52A of the NDPS Act in the present
case. Accordingly, he prays to allow the petition.
6. Per contra, learned counsel for respondent has
opposed the petition. However, he does not dispute the
submission made by the learned counsel for the
petitioners.
7. This Court has granted regular bail to accused
No.4 in Crl.P.No.1380/2024 disposed of on 21.06.2024
and accused Nos.3, 5 and 6 have been granted regular
bail by this Court in Crl.P.No.4887/2024 disposed of on
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14.08.2024. This Court while granting bail to aforesaid
accused has taken note of the fact that the prosecution
has failed to comply requirements of Section 42 and
Section 50 of the NDPS Act in the present case. In addition
to the same, the learned counsel for the petitioners has
submitted that even Section 52A of the NDPS Act has not
been complied in the present case.
8. The material on record would go to show that
the investigating Officer has seized totally 8 bags of
contraband article Ganja from accused Nos.1 to 6 on
25.04.2023 and had subjected the same to panchanama.
The proceedings under Section 52A of the NDPS Act that
was held before the jurisdictional Magistrate would go to
show that the Investigating Officer has produced seized
contraband article in 3 bags before the Magistrate and
sample was drawn from the said 3 bags. Therefore, it is
apparent that seized contraband articles were mixed
homogeneously by the Investigating Officer and
contraband article Ganja, which was found in 8 bags at the
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time of seizure was packed in 3 bags and produced before
the jurisdictional Magistrate during the proceedings under
Section 52A of the NDPS Act. This procedure followed by
the Investigating Officer is bad in law in view of the
judgment of the Hon'ble Supreme Court in the case of
UNION OF INDIA V. BAL MUKUND AND OTHERS -
(2009) 12 SCC 161.
9. This Court while granting bail to accused Nos.3
to 6 has also taken into consideration that the seizure of
contraband article from the accused persons was not done
separately and total weight of contraband article allegedly
Ganja is said to be 42 Kg. However, the contraband article
that was carried by each of the accused was not weighed
separately. It is not in dispute that the petitioners do not
have any criminal antecedents and they are in custody
from 26.04.2023. The trial in the case is yet to commence.
10. Considering the aforesaid aspects of the matter,
the rigor under Section 37(1)(b) of the NDPS Act cannot
be made strictly applicable as against the petitioners.
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Therefore, I am of the opinion that the prayer made by the
petitioners for grant of regular bail is required to be
answered affirmatively.
11. Accordingly, the following:
ORDER
The petitioners are directed to be enlarged on bail in
Spl.C.C.No.2292/2023 pending before the Court of XXXIII
Addl. City Civil & Sessions Judge and Special Judge
(NDPS), Bengaluru, arising out of NCB Crime
No.48/1/17/2023/BZU registered by Narcotics Control
Bureau, Bagalore Zonal Unit for the offences punishable
under Sections 8(C) R/w 20b(ii)(C), 28 & 29 of the
Narcotic Drugs & Psychotropic Substances Act, subject to
the following conditions:
a) The petitioners shall execute a
personal bond for a sum of Rs.1,00,000/- (one
lakh) each with two sureties for the likesum (out
of which one surety shall be local surety) to
the satisfaction of the jurisdictional Court;
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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;
c) The petitioners shall not directly or
indirectly threaten or tamper with the
prosecution witnesses;
d) The petitioners shall not involve in
similar offences in future;
e) The petitioners shall not leave the
jurisdictional of the Trial Court without
permission of the said Court until the case
registered against them is disposed of.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
NMS
