Karnataka High Court
Sri. Nishmal Nazar vs State Of Karnataka on 10 September, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:37016
CRL.P No. 8793 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 8793 OF 2024
BETWEEN:
SRI NISHMAL NAZAR
AGED ABOUT 23 YEARS
R/AT NO.486, PADIKKATHODI
HOUSE, VADUVANCHAL POST
THOMATTUCHAL TOWN
WAYANADU DISTRICT
KERALA - 673 581.
...PETITIONER
(BY SRI K. PANINDRA, SR. COUNSEL FOR
SRI DHARSHAVARDHAN B.G, ADV.)
AND:
STATE OF KARNATAKA
CEN CRIME POLICE STATION
MYSURU CITY, REPRESENTED BY
STATE PUBLIC PROSECUTOR
Digitally
signed by ADVOCATE GENERALS OFFICE
NANDINI MS HIGH COURT BUILDINGS
Location:
High Court of BENGALURU - 560 001.
Karnataka ...RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRL.P IS FILED U/S.439 CR.P.C (U/S 483 BNSS)
PRAYING TO GRANT REGULAR BAIL TO THE PETITIONER IN
CR.NO.197/2023, FOR THE OFFENCES P/U/S 22(C) OF NDPS ACT,
REGISTERED BY CEN CRIME P.S., PENDING BEFORE THE HONBLE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU, ON THE FILE
OF SPL.C.NO.237/2024.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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CRL.P No. 8793 of 2024
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused no.1 in Spl. Case No.237/2024 pending before
the Court of Prl. District & Sessions Judge, Mysuru, arising out
of Crime No.197/2023 registered by CEN Crime Police Station,
Mysuru City, for the offence punishable under Section 22(C) of
the Narcotic Drugs & Psychotropic Substances Act, 1985 (for
short, 'NDPS Act'), is before this Court under Section 439
Cr.PC.
2. Heard the learned Counsel for the parties.
3. FIR in Crime No.197/2023 was registered by CEN Crime
Police Station, Mysuru City, for the aforesaid offence against
the petitioner and two others on the basis of the first
information dated 26.10.2023 received from Shekhar.G., Police
Officer attached to CEN Crime Police Station, Mysuru City.
Petitioner who was taken to custody on 26.10.2023 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 the
petitioner and two others for the aforesaid offences. In the
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charge sheet, petitioner is arrayed as accused no.1. Bail
application filed by the petitioner before the jurisdictional
Sessions Court in Crl. Misc. No.880/2024 was dismissed on
22.06.2024. Therefore, he is before this Court.
4. Learned Senior Counsel appearing for the petitioner
submits that petitioner is fourth year law student studying in
Christu Jayanthi College of Law, Bengaluru. He has no criminal
antecedents. He has been falsely implicated in the present
case. He submits that there is no compliance of Sections 42 &
50 of the NDPS Act in the present case. Accordingly, he prays
to allow the petition.
5. Per contra, learned HCGP has opposed the petition. He
submits that commercial quantity of contraband article has
been seized in the present case, and therefore, in view of
Section 37(1)(b) of the NDPS Act, petitioner's prayer for grant
of regular bail has to be rejected.
6. The material on record would go to show that on the
basis of credible information received, the first informant and
his staff along with independent panch witnesses had
conducted raid to the alleged spot where two persons were
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making attempts to sell the contraband article to the public.
From the spot, two persons were apprehended who revealed
their names as Nishmal Nazar and Abdul Salam, respectively.
From the possession of accused no.1, contraband article
allegedly MDMA weighing 111 grams was seized and from the
possession of accused no.2, contraband article allegedly MDMA
weighing 106 grams was seized. In addition to the aforesaid
contraband article, the mobile phone of the accused was also
seized and the seized contraband article along with the other
articles which were seized from the person of the accused was
submitted to panchanama, and thereafter, the apprehended
accused and the seized articles were brought to the police
station and FIR in Crime No.197/2023 was registered against
three persons. Accused no.3 allegedly had supplied the
contraband article to accused nos.1 & 2. Investigation in the
case is completed and charge sheet has been filed.
7. Perusal of the material available on record would go to
show that in compliance of the requirement of Section 50 of the
NDPS Act, a common notice has been issued to accused nos.1
& 2 and signature of both the accused is taken on a single
notice. This would go to show that no separate notices were
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issued to accused persons in compliance of the requirement of
Section 50 of the NDPS Act. Therefore, in view of the judgment
of the Hon'ble Supreme Court in the case of STATE OF
RAJASTHAN VS PARMANAND & ANOTHER - (2014)5 SCC
345, it cannot be said that there is compliance of Section 50 of
the NDPS Act in the present case.
8. In addition to the same, perusal of the material on record
would go to show that there is no strict compliance of Section
42 of the NDPS Act in the present case. Undisputedly,
petitioner has no criminal antecedents and he is a student
studying in fourth year law in Christu Jayanthi College of Law,
Bengaluru. The contraband article allegedly MDMA seized in the
present case has now tested positive for the drug known as
Methamphetamine. Considering the fact that the prosecution
has not properly complied with the requirements of Sections 50
& 42 of the NDPS Act in the present case, the rigor under
Section 37(1)(b) of the NDPS Act cannot be made strictly
applicable to the present case. In addition to the same,
petitioner is a student who has no criminal antecedents and is
in custody from 26.10.2023 onwards. The prosecution has cited
altogether 20 charge sheet witnesses in the present case and
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trial in the case is yet to commence. Considering the aforesaid
aspects of the matter, I am of the opinion that petitioner's
prayer for grant of regular bail is required to be answered
affirmatively. Accordingly, the following order:
9. The petition is allowed. The petitioner is directed to be
enlarged on bail in Spl. Case No.237/2024 pending before the
Court of Prl. District & Sessions Judge, Mysuru, arising out of
Crime No.197/2023 registered by CEN Crime Police Station,
Mysuru City, for the offence punishable under Section 22(C) of
the Narcotic Drugs & Psychotropic Substances Act, 1985,
subject to the following conditions:
a) Petitioner shall execute personal bond for a
sum of Rs.1,00,000/- with two sureties for the
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;
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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
KK
