Karnataka High Court
Sri Rayappa Sattappa Tole vs The State Of Karnataka on 28 January, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.P No. 103760 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL PETITION NO.103760 OF 2024
[439(CR.PC)/483(BNSS)]
BETWEEN:
SRI RAYAPPA SATTAPPA TOLE,
AGE: 36 YEARS, OCC. AGRICULTURE,
R/O. KANCHAKARAWADI VILLAGE,
TQ. RAIBAG, DIST. BELAGAVI-591222.
... PETITIONER
(BY SRI PRASAD PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH PSI
RAIBAG POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
Digitally
DHARWAD BENCH AT DHARWAD-580011.
MANJANNA
signed by
MANJANNA E
Date:
... RESPONDENT
E 2025.01.29
09:58:06
+0530
(BY SRI JAIRAM SIDDI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. (483
OF BNSS), SEEKING TO GRANT BAIL TO THE PETITIONER/ACCUSED
NO.1 IN RAIBAG POLICE STATION CRIME NO.308/2024, FOR THE
ALLEGED OFFENCES PUNISHABLE U/S. 20(A), 20(B) (I), 20(B)(II)
(C) OF NARCOTIC DRUGS PSYCHOTROPIC SUBSTANCES ACT, 1985,
IN THE INTEREST OF JUSTICE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.01.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE
FOLLOWING:
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CRL.P No. 103760 of 2024
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
This petition for regular bail is filed under Section 483
of Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for
short) in Crime no.308/2024 registered by Raibag Police
Station for offences punishable under Sections 20 (b) (i), 20
(a), 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, 'NDPS') by accused no.1
(petitioner).
2. Sri Prasad Patil, learned counsel for petitioner
submitted prosecution case was based on complaint dated
19.11.2024 by S.D. Hammanavar, ASI, Raibag Police Station
(complainant), stating on that day at 10:30 p.m., he
received credible information about Rayappa Tole (petitioner)
illegally cultivating Ganja in Sy.no.303/5 of Nandi Kurali
village, and had kept same for drying with intention to
illegally sell it to public. And 11:30 a.m., he reached spot
observed from distance that a person was drying wet leaves
and stalks on plastic sheet in yard of his house. And while
coming out of sugarcane field, cultivation of Ganja plants
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was also noticed, confirmed after smelling its leaves.
Immediately, Superior Officer was informed and after posting
constable to keep watch, he returned back to station,
registered Crime no.308/2024 (supra) at 12:00 p.m. for
offences as stated above.
3. It was submitted, complaint merely stated about
growth of Ganja on land, which did not belong to petitioner.
And claimed petitioner was permanent resident of
Kanchakarawadi. And without producing lease deed, it was
alleged that petitioner had leased land and cultivated Ganja.
It was contended, prosecution had neither arraigned owner
of land nor enquired with him. And though quantity seized
was shown as 89 Kgs. 560 grams, prosecution was yet to
ascertain whether any of it was Ganja and secondly said
quantity included entire plant i.e. mud strewn roots, wet
stem, stalk, leaves, flowers and seeds and not dry weight.
Therefore, Ganja in commercial quantity was seized was to
be ascertained/established. Thus, there was no sufficient or
direct incriminating material against petitioner.
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4. It was submitted, remand application clearly
indicated petitioner was arrested at 6:45 p.m. on
19.11.2024, i.e. after sunset, in apparent contravention of
Section 42 of NDPS. Therefore, prosecution case was vitiated
due to procedural violation. It was submitted, petitioner was
bonafide, innocent and law abiding citizen without any
criminal antecedents, who was falsely implicated. He was
also permanent resident having movable and immovable
properties and was sole bread earner of his family. He was
arrested on 19.11.2024 and was in custody as under trial. In
support of his submissions, learned counsel relied on
decisions of this Court in case of Sri Halappa v. State of
Karnataka (in Crl.P.no.100090 of 2023 disposed of on
19.01.2023) and Siddappa v. State of Karnataka (in
Crl.P.no.10982/2012 disposed of on 25.09.2012). On above
grounds sought for allowing petition.
5. On other hand, Sri Jairam Siddi, learned HCGP for
respondent - State opposed petition. It was submitted, on
receipt of credible information, complainant had conducted
search in land bearing Sy.no.303/5 and found petitioner had
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CRL.P No. 103760 of 2024
grown Ganja plants between Sugarcane crop and kept
certain quantity for drying in yard of his house. It was
submitted, after following due procedure total quantity
recovered was 89 Kgs. 560 grams of Ganja worth
Rs.7,85,360/- i.e. in 'Commercial Quantity', attracting
presumption under Section 37 of NDPS. It was submitted,
outer limit for filing charge sheet under NDPS was 180 days
and due to pendency of investigation, charge sheet was not
yet filed and petitioner would be required for custodial
interrogation.
6. Insofar as contention about petitioner's arrest at
6:45 p.m. on 19.11.2024 being in violation of Section 42 of
NDPS, it was submitted, search begun at 4:30 p.m. and after
conclusion he was arrested at 6:45 p.m. It was submitted
there was substantial compliance and minor discrepancy if
any, would not vitiate proceedings. It was further submitted,
if petitioner was enlarged on bail, he was likely to tamper
prosecution witnesses/material and hamper investigation. On
above grounds sought to reject bail.
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7. Heard learned counsel and perused available
material on record.
8. Hence, point that arises for consideration is:
"Whether petitioner is entitled for regular
bail with conditions?"
9. This petition, for regular bail is by accused no.1 in
Crime no.308/2024 registered by Raibag Police Station for
offences punishable under Sections 20 (b) (i), 20 (a), 20 (b)
(ii) (C) of NDPS.
10. As per prosecution material i.e. complaint and
spot panchanama drawn on date of search, there is recovery
of total of 89 Kgs. 560 grams of cannabis with particulars as
follows:
i. Half dried and half moisture leaf, flowers
and seeds having about 5 Kgs. 800 grams
weight.
ii. Half dried and half moisture leaf, flowers
and seeds having about 3 Kgs. 800 grams
weight.
iii. Raw moisture leaf, flowers and seeds having
about 7 Kgs. 470 grams weight.
iv. One blue plastic basket half dried and half
moisture 240 grams.
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v. Raw moisture Ganja plant, leaf, flowers and
seeds total 15 trees about 11 feet having
total 40 Kgs. 650 grams weight.
vi. Raw moisture Ganja plant, leaf, flowers and
seeds total 12 trees about 10.5 feet having
total 31 Kgs. 600 grams weight.
11. Above particulars reveal, though more than
commercial quantity of cannabis was recovered, about 9
Kgs. was dried cannabis found in possession, remaining was
raw moisture cannabis plants found growing in land
belonging to petitioner. Inventory prepared by Investigating
Officer as Annexure-I for purposes of Section 52A (2) of
NDPS would indicate that nearly 71 Kgs. of seized material
included whole plant i.e. including roots, stem, stalk and
leaves, flower and seeds. Therefore, samples sent for testing
would include ascertaining whether seized material was
cannabis and for determining net quantity of cannabis after
excluding stem, roots etc. it cannot be stated at this stage
that there is seizure or recovery of cannabis is in commercial
quantity. Therefore, recording of satisfaction as required in
Section 37 of NDPS would not be necessary at this stage.
Besides it is case of prosecution that land bearing
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Sy.no.303/5 of Nandi Kurali village belongs to petitioner, he
had taken land belonging to Prabhakar Shankar Metri on
lease. But seizure panchanama does not appear to indicate
extent of recovery from land belonging to petitioner and
from land allegedly taken on lease.
12. Prosecution has not disputed claim by petitioner
that there are no criminal antecedents. Admittedly he holds
immovable properties and claims to be permanent resident
along with family. Therefore, there is no basis to assume
that he would flee justice in case of his released on bail.
13. Hon'ble Supreme Court in case of Sanjay
Chandra v. CBI, reported in (2012) 1 SCC 40, has held
purpose of bail is to secure appearance of accused at trial
and it can be neither punitive nor preventative. It is further
held, deprivation of liberty must be considered a punishment
and that punishment begins after conviction and until then
every man is deemed to be innocent. Moreover, concerns
expressed by prosecution could be resolved by imposition of
appropriate conditions.
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14. Specific contention of petitioner about his arrest
after sunset being in violation of Section 42 of NDPS, would
not be fatal, in view of substantial compliance, as held by
Hon'ble Supreme Court in Sajan Abraham v. State of
Kerala reported in (2001) 6 SCC 692, especially in light of
explanation that process of seizure had commenced at 4:30
p.m. in presence of petitioner which would be between
sunrise and sunset, his arrest after its conclusion at 6:45
p.m. Thus, point for consideration is answered in affirmative.
Hence, following:
ORDER
Petition is allowed. It is ordered that
petitioner/accused no.1 is ordered to be released
on bail in Crime no.308/2024 registered by
Raibag Police Station for offences punishable
under Sections 20 (b) (i), 20 (a), 20 (b) (ii) (C)
of NDPS, subject to following conditions:
a) Petitioner shall execute personal bond for
sum of Rs.1,00,000/- with two sureties
for likesum to satisfaction of Court.
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b) He shall appear before Investigating
Officer for purpose of investigation as
and when required and co-operate with
investigation.
c) He shall not threaten, tamper with or
influence prosecution witnesses, either
directly or indirectly.
d) He shall mark his attendance before
Investigating Officer on every alternative
Sunday between 11.00 a.m. to 5.00
p.m.
e) He shall not leave jurisdiction of above
Court without prior permission, until
completion of trial.
f) He shall not indulge in any criminal
activities.
g) It is clarified that all observations herein
are prima facie for purposes of this order
and not bind trial Court while passing
final judgment.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD,CLK
CT:PA
