Karnataka High Court
Govind S/O. Bhawarlal Patel vs The State Of Karnataka on 7 February, 2025
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CRL.P No. 103795 of 2024
C/W CRL.P No. 103663 of 2024
CRL.P No. 103667 of 2024
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL PETITION NO.103795/2024
(439(Cr.PC)/483(BNSS))
C/W
CRIMINAL PETITION NO.103663/2024
CRIMINAL PETITION NO.103667/2024
IN CRL.P NO.103795/2024:
BETWEEN:
OM PRAKASH S/O VEERAMARAM,
AGE: 24 YEARS, OCC: BUSINESSMAN,
R/AT. SHALANI PARK, GADAG ROAD,
TQ. HUBBALLI,
DIST. DHARWAD-580 020.
Digitally
signed by ...PETITIONER
LUCYGRACE
LUCYGRACE Date:
2025.02.11
14:13:49 - (BY SRI GOURI SHANKAR MOT, ADVOCATE)
0800
AND:
THE STATE OF KARNATAKA,
TOWN POLICE STATION,
HUBBALLI,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
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CRL.P No. 103667 of 2024
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI JAIRAM SIDDI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. (483 OF BNSS), PRAYING TO ENLARGE THE
PETITIONER/ACCUSED NO.1 ON BAIL IN CRIME NO.78/2024
OF HUBBALLI TOWN POLICE STATION, PENDING ON THE FILE
OF 1ST JMFC COURT, HUBBALLI, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 20(b)(ii)(A) OF THE NDPS ACT,
1985, AND SECTIONS 318(4), 336(3), 340(2), 111(3) AND
316(4) OF BNS, 2023.
IN CRL.P NO.103663/2024:
BETWEEN:
GOVIND S/O BHAWARLAL PATEL,
AGE: 21 YEARS, OCC: BUSINESS,
R/AT. OPPOSITE CHURCH, NATRAJ COLONY,
SINDHNUR,
DIST. RAICHUR-584 128.
...PETITIONER
(BY SRI KIRAN JAWALI, SENIOR COUNSEL, FOR
SRI ZANZA SHAILESH JOSHI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
TOWN POLICE STATION,
HUBBALLI,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI JAIRAM SIDDI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.P.C. (U/SEC. 482 OF BNSS, 2023) PRAYING TO GRANT
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ANTICIPATORY BAIL DIRECTING THE RESPONDENT POLICE TO
RELEASE THE PETITIONER/ACCUSED NO.4 ON BAIL IN THE
EVENT OF HIS ARREST AND ENLARGE HIM ON BAIL IN CRIME
NO.78/2024 OF HUBBALLI TOWN POLICE STATION, PENDING
ON THE FILE OF 1ST JMFC COURT, HUBBALLI, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 20(b)(ii)(A) OF THE
NDPS ACT, 1985 AND SECTIONS 318(4), 336(3), 340(2),
111(3) AND 316(4) OF BNS, 2023.
IN CRL.P NO.103667/2024:
BETWEEN:
RAMESH S/O CHUTRA RAM GUDAMALINI,
AGE: MAJOR, OCC: BUSINESS,
R/AT. BOND VILLAGE, TQ. GUDAMALINI,
BARMER,
RAJASTHAN.
...PETITIONER
(BY SRI GOURI SHANKAR MOT, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
TOWN POLICE STATION,
HUBBALLI,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI JAIRAM SIDDI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. (U/SEC. 483 OF BNSS, 2023), PRAYING TO
ENLARGE THE PETITIONER/ACCUSED NO.3 ON BAIL IN CRIME
NO.78/2024 OF HUBBALLI TOWN POLICE STATION, PENDING
ON THE FILE OF 1ST JMFC COURT, HUBBALLI, FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 20(b)(ii)(A) OF THE
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NDPS ACT, 1985, AND SECTIONS 318(4), 336(3), 340(2),
111(3) AND 316(4) OF BNS, 2023.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.01.2025 AND COMING ON FOR
'PRONOUNCEMENT' THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE C M JOSHI
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. JOSHI)
1. These petitions are filed under Sections 482 and
483 of Bharatiya Nagarik Suraksha Sanhita, 2023, (for short
'BNSS') by accused No.1, 3 and 4 in Crime No.78/2024 of Hubli
Town Police Station registered for the offences punishable
under Section 20(b)(ii)A of Narcotic Drugs & Psychotropic
Substances Act, 1985 (for short 'N.D.P.S. Act') and Sections
318(4), 336(3), 340(2), 111(3), 316(4) of the Bharatiya Nyaya
Sanhita, 2023, (for short 'BNS'), seeking regular bail as well as
anticipatory bail.
2. The factual matrix of the case is as below:
(a) The P.S.I. of Hubli Town Police Station - Maruti R.,
lodged complaint stating that on 30.07.2024 while he was on
duty, he received a credible information that at about 7.00
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p.m., a person would come in a White KIA Sonnet Car No.RJ-
39/CA-6198 near Bogi-Bogi Hotel, adjacent to Railway Station,
either to sell or purchase narcotic drug i.e., Ganja. The said
complaint was registered in Crime No.78/2024. Thereafter, the
Police Inspector of Hubli Town Police Station (I.O.) took up the
investigation, secured two panchas and after informing them
about the raid to be conducted and following the required
procedure, proceeded to the spot. At about 8.25 p.m., while
the raiding party was watching the place, the said Car came
and on intercepting it, the Driver of the Car was questioned and
he disclosed his name to be Omprakash (A1) and he was
informed of the credible information received by the I.O., after
informing him that the raiding party had made a self-search.
He admitted that he was possessing Ganja and informed that it
is kept in the Car. Accordingly, the accused was arrested and
the Ganja in the Car was examined and it was found that the
Ganja was weighing 643 grams. Thereafter, at the option of
the accused No.1, a Gazetted Officer (Assistant Commissioner
of Police, South) was secured and body search was conducted.
On interrogating him, the accused No.1 led the police to his
house at Railway Colony and disclosed about 245 grams of
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Ganja, which was kept in the cupboard. At the time of search,
cash of Rs.96,50,000/- was secured and the same was seized
under a Mahazar. Apart from the cash, several Rubber Seals of
various business establishments, Bank Swipe Machines, Aadhar
Cards, Cheque-Books, Pass-Books, about 30 ATM Cards of
several Banks, Bond-Papers, PAN-Cards were also seized from
his house. Allegedly, the accused No.1 had also disclosed that
apart from drug peddling, he was also involved in Hawala
transactions and 9 other accused were involved in the Crime.
(b) On the basis of such information, accused No.6 -
Ratna Ram was arrested on 04.08.2024 and his statement was
also recorded. Thereafter, it came to light that accused No.4 -
Govind (petitioner in Crl.P. No.103663/2024) was a Clerk in the
Commission Agency business of one Vijaykumar (CW 15) and
he had represented accused Nos.1 and 3 that the Bank Account
of Vijaykumar was a 'tax free' account and any deposit made to
it and withdrawal would not be known to Vijaykumar and
accordingly, a sum of Rs.1,05,00,000/- was transferred to the
said account; and by misrepresenting the said Vijaykumar that
some purchaser of paddy had transferred the money, but since
they had no stock of paddy the said amount has to be
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refunded, got issued the Cheques and the money was
withdrawn and paid to accused No.1. The said amount to the
tune of Rs.96,50,000/- was the money recovered from the
house of accused No.1.
(c) The Investigating Officer filed charge-sheet against
the accused Nos.1 and 6 and showed remaining accused as
absconding. As such, a non-bailable warrant was sought by
him against the absconding accused. On 01.10.2024, accused
No.3 - Ramesh Kumar was traced in Rajasthan and he was
arrested and brought to Hubli. It was alleged that in his
voluntary statement he admitted that he is involved in Hawala
transactions by conniving with accused Nos.1, 6 and several
others and his mobile phone was seized under a Mahazar.
(d) The charge-sheet filed by the Investigating Officer
alleges that the accused No.1 got information from accused
No.3 and after having acquaintance with accused NO.5,
obtained the details of the Aadhar Cards of the persons, who
used to come for getting the new PAN-Cards and by changing
the mobile numbers attached to the Aadhar Cards, and linking
his own mobile number, got the updated Aadhar Cards, and
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then created bogus PAN-Cards and downloaded them and
opened fictitious Bank Accounts. It is alleged that all these
accounts were handled by accused Nos.1 and 3. Accused No.1
got acquaintance with accused Nos.7 and 8 through accused
No.4 and they together, through accused No.6 were involved in
Hawala transactions. They wanted a 'tax free' account and
accused No.1 contacted accused No.4, through him, the
account of CW15 - Vijaykumar was used by accused No.4. The
money recovered from accused No.1 at his house is part of the
Hawala transactions, which was credited to the account of
CW15 - Vijayakumar and encashed by accused No.4 under the
guise that it was the money for purchase of the paddy.
Therefore, it is alleged that accused Nos.1 to 9 have committed
the offences punishable under Section 20(b)(ii)A of N.D.P.S.
Act, and Sections 318(4), 336(3), 340(2), 111(3), 316(4) of
the BNS.
3. Heard the arguments by learned Senior Counsel Sri
Kiran Jawali appearing for the petitioners and the learned High
Court Government Pleader appearing for respondent - State.
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CRL.P No. 103667 of 2024
a) The learned Senior Counsel for the petitioners
contended that the petitioners are falsely implicated in the
case; the provisions of the NDPS Act are not attracted; even if
attracted it is for small quantity; the petitioners are ready and
willing to abide by any conditions. He argued that the
provisions of Sec 111 of the BNS are not at all attracted to the
case on hand.
b) Per contra, the learned HGCP argued that the
investigation is still in progress and a provisional charge sheet
is filed by the Investigating Officer. It is submitted that if the
accused are granted bail, they may tamper the prosecution
witnesses, indulge in similar offences and destroy the evidence.
Analysis and Conclusions:
4. In Crl.P. No.103795/2024 (filed under Section 483
of BNS) the accused No.1 contend that the quantity of the
Narcotic substance seized allegedly from the custody of the
petitioner is of small quantity and therefore, the rigor of
Section 37 of the N.D.P.S. Act is not applicable. It is submitted
that the Ganja was not seen on the person of accused No.1, but
it was found in the car. Thereafter, the accused led the I.O. to
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his house, where, certain documents, cash were seized with
another small quantity of Ganja. It is pointed out that the
requirements of Section 50 of the N.D.P.S. Act are not met with
by the I.O. and therefore, the allegations made against the
accused No.1 are not sustainable in law. It is contended that
the prosecution has not placed any material on record to bring
an offence into the four corners of organized crime defined
under Section 111 of the BNS. Accused No.1 is not facing any
other criminal case and therefore, invoking of the provisions of
Section 111 of BNS is not sustainable in law. Hence, the
petitioner being ready and willing to abide by any conditions
that may be imposed by the Court and to co-operate for
investigation, he may be enlarged on regular bail.
5. The accused No.4 - Govind, who is the petitioner in
Crl.P.No.103663/2024 (filed under Section 482 of BNSS)
contends that he is innocent of the alleged offences and he also
does not face any other charge-sheet which is pending
precedent the ten years of the FIR in the present case and as
such, the provisions of Section 111 of the BNS are not
applicable. He contends that only on the basis of the voluntary
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statement of the other accused, his name is included in the
charge-sheet. There is no material against this accused and a
non-bailable warrant has been issued by the special Court.
There being no allegations against the petitioner for any of the
provisions under the N.D.P.S. Act, there was no need for a non-
bailable warrant being issued against him. Therefore, it is
contended that there being non-compliance of the provisions of
the N.D.P.S. Act, he is apprehending an illegal arrest and as
such, he may be granted anticipatory bail with suitable
conditions.
6. The petitioner in Crl.P. No.103667/2024 (filed under
Section 483 of BNS), who is accused No.3 - Ramesh contends
that he has been arrested on the basis of a non-bailable
warrant issued by the Special Court and the allegations made
against him are only the basis of the voluntary statement of
accused Nos.1 and 6. It is contended that a confession
statement recorded under Section 67 of the N.D.P.S. Act is
inadmissible and therefore, he could not have been prosecuted
for the offence under N.D.P.S. Act. He also submits that he is
not facing any trial or charge-sheet in the preceding ten years
and therefore, the provisions of Section 111 of the BNS is not
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applicable. Hence, he being ready and willing to abide by any
conditions to be imposed by this Court, he may be enlarged on
bail.
7. As per the charge-sheet papers and the objection
statement filed by the learned High Court Government Pleader
it is the case of the prosecution that a P.S.I. of Hubli Town
Police Station, on receipt of credible information lodged a
complaint, based on which, a F.I.R. came to be registered and
investigation was launched. During investigation the accused
No.1 was intercepted in the presence of the raiding party near
Bogi-Bogi Hotel. Accused No.1. was found in the car and he
was taken into custody, then interrogated and he was given a
choice of being searched by a Gazetted Officer, which he opted
and accordingly a Senior Police Officer was summoned and in
his presence body search was conducted. Evidently, nothing
was found on the body of the accused No.1. However, 643
grams of Ganja was found in the car of accused No.1, which
was seized under a panchnama. Then, accused No.1 gave a
voluntary statement, and in pursuance to it, the raiding party
went to the house of the accused, where cash worth
Rs.96,50,000/- and several Swiping Machines, ATM Cards,
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Cheque-Books, Pass-Books, Aadhar Cards, PAN-Cards etc.,
were seized. Therefore, the I.O. came to the conclusion that
there is material to show that the accused is involved in Hawala
Operations and invoked the other provisions of law.
8. On the basis of voluntary statement of accused
No.1, the involvement of all other accused was disclosed and
accused No.6 was arrested. Certain seizures were also made at
the instance of accused No.6, on the basis of his voluntary
statement. Accused Nos.1 and 6, during their custodial
interrogation had disclosed the involvement of accused Nos.3,
4, and other accused. The statements of the witnesses
including that of CW15 were also recorded. The Bank-
Statements of the various accounts were seized and ultimately,
the I.O. filed charge-sheet.
9. The above facts and circumstances show that the
involvement of accused Nos.3 and 4 is solely based on the
voluntary statement of accused Nos.1 and 6. Evidently, the
judgment of the Apex Court in the case of Tofan Singh Vs.
State of Tamil Nadu1 holds that the confessional statement
1
2020(12) SCR 583
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recorded under Section 67 of N.D.P.S. Act is inadmissible in
trial of an offence under N.D.P.S. Act. It is also relevant to
note that no discernible recovery had been made from accused
No. 3 on the basis of the voluntary statement, except his
mobile phone.
10. The role of accused No.1 as alleged by the
prosecution is his involvement in the offences under the
provisions of N.D.P.S. Act and in Hawala Transactions, which is
an organized crime. Evidently, the offence under the provisions
of N.D.P.S. Act being for possessing narcotic substance of small
quantity, does not attract the provisions of Section 37 of the
N.D.P.S. Act.
11. The other allegations are that of criminal breach of
trust under Section 316(4), cheating under Section 318(4),
forgery for the purpose of cheating under Section 336(3),
forged document being used as genuine under Section 340(2)
of BNS. Evidently, none of the persons who have been cheated
have filed any complaint. Therefore, it is only on the basis of
the voluntary statement of accused Nos.1, 3 and 6 that these
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allegations are made. Moreover, these offences are not
punishable with death or imprisonment for life.
12. So far as the offence under Section 111 of the BNS
is concerned, the learned Senior Counsel for the petitioners
relied on a judgment of the Kerala High Court in the case of
Mohammed Rashid Vs. State of Kerala in Bail Application
No.5927/2024 dated 13.08.2024. The provisions of Sectin
111 of the BNS are borrowed from MaCOCA and similar
enactments, including KaCOC Act. It is trite law that to
conclude that there is an organized crime, and the accused are
members of the organized crime Syndicate, it is essential that
any one of the members of the Syndicate should be facing
atleast three charge-sheets initiated within a period of ten
years prior to the crime and which are pending. The perusal of
the charge-sheet no where indicate that any of the nine
accused are facing such charge-sheets within the period of ten
years preceding the crime. Therefore, the invoking of the
provision under Section 111 of BNS is also prima facie
impermissible.
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13. For above reasons, this Court comes to the
conclusion that the offences under the provisions of the
N.D.P.S. Act are attracted only against accused No.1 and
recovery of narcotic substance being for smaller quantity, there
is no necessity of his detention in custody. The other offences
are not punishable with death or imprisonment for life and
therefore there is no need for custodial detention. Similarly,
accused No.3 and 4 cannot be implicated for any of the
offences under the provisions of N.D.P.S. Act. His role
regarding supply or otherwise of narcotic substance is not
alleged. Therefore, his custodial detention is also not
necessary.
14. So far as the anticipatory bail of accused No.4 is
concerned, evidently his role is only in respect of informing
CW15 to issue a Cheque for the refund of Rs.1,05,00,000/- and
withdrawing the money from the account. The connections of
accused No.4 with the other accused is not independently
forthcoming from the charge-sheet except the voluntary
statements. The apprehensions of the learned High Court
Government Pleader may be met with by imposing suitable
conditions. Therefore, this Court finds that the petitions filed for
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regular bail and anticipatory bail deserves to be allowed. Any
further detention would only be a pre-trial punishment.
15. In view of the above, the following:
ORDER
i) All the petitions are allowed.
ii) The petitioners in Crl.P. No.103795/2024 and
in Crime No.78/2024 of Hubballi town Police
Station are ordered to be released on bail
subject to the following conditions:
a) They have to execute personal bond
for a sum of Rs.5,00,000/- each, along
with two sureties for like sum to the
satisfaction of the trial Court/Special
Court;
b) They shall not tamper the prosecution
witnesses or evidence either directly or
indirectly and shall not have any
contact with them in whatsoever
manner;
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c) They shall not leave the jurisdiction of
the trial Court without prior permission
of that Court;
d) They shall appear before the Trial
Court on all hearing dates, subject to
just exceptions that may be permitted
by the Trial Court; and
e) They shall not indulge in any similar
offences during the pendency of the
case.
iii) In the event of arrest, the petitioner in Crl.P.
No.103663/2024, who is accused No.4 in
Crime No.78/2024 of Hubballi town Police
Station is ordered to be released on bail,
subject to the following conditions:
a) He has to execute personal bond for a
sum of Rs.5,00,000/- along with two
sureties for like sum to the satisfaction
of the Arresting Officer;
b) He shall not tamper the prosecution
witnesses or evidence either directly or
indirectly and shall not have any
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contact with them in whatsoever
manner;
c) He shall not leave the jurisdiction of
the trial Court without prior permission
of that Court;
d) He shall appear before the Trial Court
on all hearing dates, subject to just
exceptions that may be permitted by
the Trial Court;
e) He shall not indulge in any similar
offences during the pendency of the
case.
Sd/-
(C.M. JOSHI)
JUDGE
SBS
AK
