Karnataka High Court
Mr Abdul Fathah vs State By Union Of India on 12 March, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:10499
CRL.P No. 2164 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 2164 OF 2025
BETWEEN:
MR. ABDUL FATHAH
S/O SHAMSUDHEEN
AGED ABOUT 28 YEARS
RESIDENT OF BAITHUL
ISTHIRAHA, THAIVALAPPU
CHOORI, MADHUR, KASARAGOD
KERALA - 671 124, PRESENTLY IN
JUDICIAL CUSTODY AT CENTRAL PRISON
PARAPPANA AGRAHARA
BENGALURU - 560 100.
...PETITIONER
(BY SRI ANIL KUMAR A.S, ADV., FOR
SRI PARAMESWARAPPA C, ADV.)
AND:
Digitally STATE BY UNION OF INDIA
signed by INTELLIGENCE OFFICER
NANDINI
MS NARCOTIC CONTROL BUREAU (NCB)
Location:
High Court BENGALURU ZONAL UNIT
of Karnataka
H. NO.7/1-2, PRIYANKA VILLAS
RAMANNA GARDEN, KATTIGENAHALLI
BAGLUR MAIN ROAD, AIR FORCE STATION
YELAHANKA POST, BENGALURU - 560 063.
...RESPONDENT
(BY SRI S. RAJASHEKAR, CGC)
THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNNS)
PRAYING TO RELEASE HIM ON BAIL IN CONNECTION WITH NCB
F.NO.48/1/22/2023/BZU AGAINST THE PETITIONER FOR THE
OFFENCES P/U/S 8(c) R/W SEC. 20(b)(ii)(C), 27, 27A, 28 AND 29 OF
THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT,
1985 PENDING BEFORE THE LRD. XXXIII ADDL. CITY CIVIL AND
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CRL.P No. 2164 of 2025
SESSIONS JUDGE AND SPL.JUDGE FOR NDPS AT BENGALURU IN
SPL.C.C.NO.2834/2023 FOR THE AFORESAID OFFENCES.
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 No.1 in Spl.C.C.No.2834/2023 pending
before the Court of XXXIII Addl. City Civil & Sessions
Judge and Special Judge for NDPS, Bengaluru, arising out
of NCB.F.No.48/1/22/2023/BZU for the offences
punishable under Sections 8(c) r/w Section 20(b)(ii)(C),
27, 27A, 28 and 29 of the Narcotic Drugs & Psychotropic
Substances Act, 1985 (for short 'NDPS' Act) is before this
Court seeking regular bail.
2. Heard the learned counsel appearing for the
parties.
3. On the basis of credible information received,
the petitioner herein and another were intercepted by
officers of NCB in KSR(SBC) railway station, Bengaluru on
11.05.2023 and from their possession totally 33.620 kg of
contraband article ganja was seized and subjected to
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panchanama. Thereafter, accused Nos.1 and 2 were
arrested and remanded to judicial custody. The
Investigation Officer after completing the investigation has
filed a complaint before the Trial Court against accused
Nos.1 and 2 for the aforesaid offences.
4. The bail application filed by the petitioner
before the jurisdictional Sessions Court in
Crl.Misc.No.11751/2024 was dismissed on 24.01.2025.
Therefore, he is before this Court.
5. Learned counsel for the petitioner having
reiterated the grounds urged in the petition submits that
the petitioner has no other criminal antecedents and he is
in custody for the last nearly 20 months. Trial in the case
is yet to commence. The petitioner is ready and willing to
cooperate with the Investigation Officer for the purpose of
investigation. Accordingly, he prays to allow the petition.
6. Per contra, learned counsel for respondent who
has filed his statement of objection has seriously opposed
the petition. However he does not dispute the submission
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made by the learned counsel for the petitioner. He submits
that since commercial quantity of contraband article is
seized in the present case, the petitioner's prayer cannot
be considered in view of rigor under Section 37(1)(b) of
the NDPS Act. Accordingly, he prays to dismiss the
petition.
7. It is not in dispute that the petitioner has no
other criminal antecedents. He is in custody from
12.05.2023. The Investigation Officer has recovered
totally 33.620 kg of contraband article ganja from
possession of accused Nos.1 and 2. From possession of
accused No.1 20kg 960 grams of contraband article was
recovered and from possession of accused No.2 12 kg 660
grams of contraband article ganja was recovered.
8. The Hon'ble Supreme Court in the case of
Chitta Biswas Alias Subhas vs. State of West Bengal
reported in 2020 SCC OnLine SC 1536 taking into
consideration that the accused was in custody for a period
of one year seven months and there was no sufficient
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progress in trial, without expressing any opinion on merits
and demerits of the case, has granted regular bail to the
accused. In the case of Nitish Adhikary alias Bapan vs.
State of West Bengal reported in 2022 SCC OnLine SC
2068 in a case where charge sheet was filed for the
offences punishable under Sections 21(c) and 37 of the
NDPS Act and accused was in custody for a period of one
year seven months, the Hon'ble Supreme Court has
granted regular bail on the ground that trial is still in the
preliminary stage, as only one witness was examined.
9. The Hon'ble Supreme court in the case of
MOHD. MULSIM ALIAS HUSSAIN V. STATE (NCT OF
DELHI) - 2023 SCC ONLINE SC 352 paragraph number 20
and 21 has observed as follows:-
"20. A plain and literal interpretation of the
conditions under Section 37 (i.e., that Court should be
satisfied that the accused is not guilty and would not
commit any offence) would effectively exclude grant of
bail altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the
only manner in which such special conditions as enacted
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under Section 37 can be considered within constitutional
parameters is where the court is reasonably satisfied on a
prima facie look at the material on record (whenever the
bail application is made) that the accused is not guilty.
Any other interpretation, would result in complete denial
of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.
21. The standard to be considered therefore, is
one, where the court would look at the material in a
broad manner, and reasonably see whether the accused's
guilt may be proved. The judgments of this court have,
therefore, emphasized that the satisfaction which courts
are expected to record, i.e., that the accused may not be
guilty, is only prima facie, based on a reasonable
reading, which does not call for meticulous examination
of the materials collected during investigation as held in
Union of India v. Rattan Malik."
10. In the case of SHEIKH JAVED IQBAL @
ASHFAQ ANSARI @ JAVED ANSARI VS STATE OF
UTTAR PRADESH - 2024 SCC OnLine SC 1755, the
Hon'ble Supreme Court in paragraph 32, has observed as
under:
"32. This Court has, time and again, emphasized
that right to life and personal liberty enshrined under
Article 21 of the Constitution of India is overarching and
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sacrosanct. A constitutional court cannot be restrained
from granting bail to an accused on account of
restrictive statutory provisions in a penal statute if it
finds that the right of the accused-undertrial under
Article 21 of the Constitution of India has been
infringed. In that event, such statutory restrictions
would not come in the way. Even in the case of
interpretation of a penal statute, howsoever stringent it
may be, a constitutional court has to lean in favour of
constitutionalism and the rule of law of which liberty is
an intrinsic part. In the given facts of a particular case,
a constitutional court may decline to grant bail. But it
would be very wrong to say that under a particular
statute, bail cannot be granted. It would run counter to
the very grain of our constitutional jurisprudence. In
any view of the matter, K.A. Najeeb (supra) being
rendered by a three Judge Bench is binding on a Bench
of two Judges like us.
11. Considering the fact that the petitioner has no
other criminal antecedents and also he is in incarceration
for a period of more than 20 months in the present case, I
am of the opinion that the prayer made by the petitioner
for grant of regular bail is required to be answered
affirmatively without expressing any opinion on the
merits/demerits of the case.
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12. Accordingly, the following:
ORDER
The petitioner is directed to be enlarged on bail in
Spl.C.C.No.2834/2023 pending before the Court of XXXIII
Addl. City Civil & Sessions Judge and Special Judge for
NDPS, Bengaluru, arising out of
NCB.F.No.48/1/22/2023/BZU for the offences punishable
under Sections 8(c) r/w Section 20(b)(ii)(C), 27, 27A, 28
and 29 of the Narcotic Drugs & Psychotropic Substances
Act, 1985, subject to the following conditions:
a) Petitioner shall execute a personal
bond for a sum of Rs.1,00,000 (Rupees One
Lakh only) with two sureties for the likesum (out
of which one surety shall be local surety), 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;
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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
NMS
