Karnataka High Court
Sri. Greeshmal G vs Union Of India on 2 July, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 4952 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 4952 OF 2025
BETWEEN:
SRI. GREESHMAL G.,
AGED ABOUT 24 YEARS,
S/O SRI. GIREESH,
R/AT TRIVENI HOUSE,
TRIPUNITHURA, MEYIKKARA,
KOCHI, ERNAKULAM,
KERALA - 682 301.
PERMANENT ADDRESS:
GREESHMALYAM HOUSE,
ADICHANALLORE (VILLAGE),
VELICHIKALA (POST OFFICE),
KOLLAM (TALUK AND DISTRICT).
KERALA - 691 573.
...PETITIONER
Digitally signed (BY SRI. BINU M., ADVOCATE)
by MAYAGAIAH
VINUTHA AND:
Location: High
Court of UNION OF INDIA,
Karnataka NCB, BZU,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI.S.RAJASHEKAR, ADVOCATE)
THIS CRL.P. IS FILED U/S 439 CR.PC (FILED U/S 483
BNNS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
SPL.C.C NO.2291/2023 ARISING OUT OF CRIME NO.NCB
F.NO.48/1/18/2023/BZU, PENDING BEFORE THE LEARNED
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CRL.P No. 4952 of 2025
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XXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPL.JUDGE(NDPS), BENGALURU CCH-33 AGAINST THE
PETITIONER FOR THE O/P/U/S 8C R/W 20(B)(II)(C), 27 AND
28 OF NDPS ACT.
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 in Spl.C.C.No.2291/2023 pending before the
Court of XXXIII Additional City Civil and Sessions Judge
(NDPS), Bengaluru, arising out of Crime No. NCB
F.NO.48/1/18/2023/BZU registered by Narcotics Control
Bureau, Bengaluru Zonal Unit, for the offence punishable
under Section 8(c) read with Sections 20(b) (ii) (C), 27
and 28 of the Narcotic Drugs and Psychotropic Substances,
Act, 1985 ("NDPS Act" for short), is before this Court
under Section 439 of Cr.P.C., seeking regular bail.
2. Heard the learned counsel for the parties.
3. It is the case of prosecution that based on the
credible information received on 26.04.2023, the team of
officers of NCB had intercepted the Petitioner at about
12.15 hours when he arrived at Bengaluru in Prashanti
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Express Train from Bhubaneshawar, Odisha. Upon enquiry,
the suspect revealed his name and also admitted that he
was carrying ganja illegally and from the three bags which
he was carrying contraband article allegedly, ganja totally
weighing about 45kg 700gms was recovered and seized
under a Panchanama. The seized contraband article as
well as Petitioner were brought to the Police Station and
after registering the FIR, Petitioner was produced before
the Court and remanded to judicial custody. His bail
application filed before the trial Court in
Spl.C.C.No.2291/2023 was rejected on 09.01.2024 and
therefore, Petitioner is before this Court seeking regular
bail.
4. Learned counsel for the Petitioner submits that
Petitioner is a youngster and he is in custody from
26.03.2023. Trial in the case is yet to commence.
Though in the three bags which allegedly was carried by
the Petitioner, 20 bundles of contraband articles were
seized, during the process of proceedings under section
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52A of the Act, only two samples of the contraband article
were taken and forwarded to the Forensic Science
Laboratory. The said procedure is not in accordance with
the law laid down by the Hon'ble Supreme Court in the
case of UNION OF INDIA v. BAL MUKUND, reported in
(2009) 12 SCC 161. Accordingly, he prays for allowing
the Petition.
5. Per contra, learned counsel for the Respondent
who has filed Statement of Objections has opposed the
petition. He submits that Petitioner is a person with
criminal antecedents and he is involved in another case
registered for offence punishable under Section 27(b) of
the NDPS Act. Contraband article seized in the present
case is of commercial quantity and in view of rigour under
Section 37(1)(b) of the Act his bail application needs to be
rejected. He submits that Petitioner hails from Kerala and
it would be difficult to secure his presence in the event he
is enlarged on bail. Accordingly, he prays to dismiss the
bail Petition.
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6. Petitioner was apprehended in the present case
based on the credible information received by the officers
of NCB on 26.04.2023 and from the three bags which the
petitioner was carrying, contraband article ganja totally
weighing 45kg 700gms was recovered and seized under a
panchanama. Perusal of the material goes to show that
contraband article was found in 20 separate bundles which
were wrapped in brown coloured tape and packed in the
bags which the Petitioner was carrying. Recovery
Mahazar would go to show that the 20 bundles were cut
open and the contraband article was thereafter
homogeneously mixed by the officers of the NCB.
7. A perusal of the proceedings conducted under
Section 52A of the NDPS Act would go to show that only
two samples of contraband articles were drawn and
forwarded to FSL for the purpose of chemical examination.
In the case of UOI vs. BALMUKUND supra referring to
Standing Instruction 1/88 in Paragraph Nos.7 and 36 it is
observed as follows:
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"7. The manner in which a sample of narcotic is
required to be taken has been laid down by the
Standing Instruction No. 1/88, the relevant portion
whereof reads as under:
"e) While drawing one sample in duplicate
from a particular lot, it must be ensured that
representative drug in equal quantity is taken
from each package/ container of that lot and
mixed together to make a composite whole
from which the samples are drawn for that
lot."
"36. There is another aspect of the matter which
cannot also be lost sight of. Standing Instruction
No.1/88, which had been issued under the Act, lays
down the procedure for taking samples. The High
Court has noticed that PW-7 had taken samples of
25 grams each from all the five bags and then
mixed them and sent to the laboratory. There is
nothing to show that adequate quantity from each
bag had been taken. It was a requirement in law."
8. From the aforesaid, it is apparent that the
procedure for taking sample has not been correctly
followed by the Investigation Officer in the present case.
Rule 10 of the Narcotic Drugs and Psychotropic Substances
Rules, 2022 provides for drawing the samples and the
same reads as follows:
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" Drawing the Samples.-(1) One sample, in
duplicate, shall be drawn from each package and
container seized.
(2) When the packages and containers seized
together are of identical size and weight bearing
identical marking on colour test by the drugs
identification kit, conclusively indicating that the
packages are identical in all respects, the packages
and containers may carefully be bunched in lots of
not more than ten packages or containers, and for
each such lot of packages and containers, one
sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy
straw and hashish (charas) it may be bunched in
lots of not more than fourty packages or containers.
(3) In case of drawing sample from a
particular lot, it shall be ensured that representative
sample in equal quantity is taken from each package
or container of that lot and mixed together to make
a composite whole from which the samples are
drawn for that lot."
9. In view of the above, it is very clear that one
sample in duplicate is required to be drawn from each
package/container. In the case on hand, the contraband
articles which were found in 20 bundles were
homogenously mixed and packed into two bundles and
thereafter two samples have been collected from the said
two bundles. Petitioner aged about 24 years, is in custody
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for more than two years. Trial in the case is yet to
commence.
10. In the case of JAVED GULAM NABI SHAIKH V.
STATE OF MAHARASHTRA AND ANOTHER reported in
2024 SCC OnLine SC 1693 at paragraph No.19, the
Hon'ble Supreme Court has observed as follows:
"19. If the State or any prosecuting agency
including the court concerned has no
wherewithal to provide or protect the
fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other
prosecuting agency should not oppose the plea
for bail on the ground that the crime committed
is serious. Article 21 of the Constitution applies
irrespective of the nature of the crime".
11. In the earlier criminal case registered against
him undisputedly Petitioner is on bail. So far as the
present case is concerned, since the proceedings under
Section 52A of the NDPS Act is defective, the seizure itself
becomes vitiated in view of the judgment of the Hon'ble
Supreme Court in the case of BALMUKUND supra. Since
the trial in the case is not yet commenced, the chances of
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the case being disposed off on merits in the near soon is
very remote. The apprehension expressed by the learned
counsel for the Respondent can be taken care of by
imposing appropriate conditions. Accordingly, the
following:
ORDER
The Petition is allowed. The Petitioner is directed to
be enlarged on bail in Spl.C.C.No.2291/2023 pending
before the Court of XXXIII Additional City Civil and
Sessions Judge (NDPS), Bengaluru, arising out of Crime
No. NCB F.NO.48/1/18/2023/BZU registered by Narcotics
Control Bureau, Bengaluru Zonal Unit, for the offence
punishable under Section 8(c) read with Sections 20(b) (ii)
(C), 27 and 28 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.1,00,000/- with two sureties
and out of the same one shall be local surety
for the likesum, to the satisfaction of the
jurisdictional Court;
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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;
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
BSV
