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24 May

Karnataka High Court : Upholds Denial of Bail to Orissa-Origin Trial in Bengaluru Drug Seizure Case

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Karnataka High Court : Upholds Denial of Bail to Orissa-Origin Trial in Bengaluru Drug Seizure Case

Case title: KUNNA SUNNA AND ORS VS THE STATE OF KARNATAKA

Case no.: CRIMINAL PETITION NO. 4191 OF 2024

Dated on: 16^nd May 2024

Quorum: Hon’ble. MR JUSTICE H.P. SANDESH

FACTS OF THE CASE

The present petition is filed under Section 439 of Cr.P.C seeking regular bail by these the petitioners/accused Nos.1 to 3 in Crime No.359/2023 (Spl.C.C.No.637/2024) of Cotton pet Police Station, Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent-State. Cotton pet sub-division, Bengaluru City for the offence punishable under Section 2(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short). The factual matrix of case of prosecution is that on 14.09.2023 at about 8.00 p.m., the complainant has received credible information that within the limits of Cotton pet Police Station, Cotton pet main road, Cotton pet, Bengaluru City, the persons of Orissa origin are carrying contraband in their Swift Dezire Car bearing No. OD-24-J 5932. On receipt of information, he has informed the matter to ACP, obtained permission to conduct the raid, informed the matter to panchas and staff, proceeded to the spot. In the spot three persons were found and when the vehicle of accused was checked in that several ganja packets were found packed in a khaki colour cello tape, the total ganja found in the car is 161 K.Gs. The said ganja was kept in the cement bags. A detail mahazar was drawn by seizing the ganja. The report is submitted and case is registered and investigation is also completed and accused Nos.1 to 3 were found with conspicuous position of ganja worth of Rs.1,40,00,000/-, the same is transported from Orissa to Bangalore. The Police have investigated the matter and filed the Charge sheet.

ISSUES

Whether the petitioners are entitled to bail under Section 439 of the Criminal Procedure Code (Cr.P.C.)?
Whether the allegations against the petitioners regarding the transportation of contraband substances are substantiated?
Whether the quantity of ganja seized, the involvement of an Orissa-registered vehicle, and the duration of custody weigh against granting bail?

LEGAL PROVISIONS

Criminal procedure code 1973

Section 439 of Cr.P.C.: This section deals with the special powers of High Court or Court of Sessions regarding bail.

Section 2(b)(ii)(C) of the NDPS Act: Pertains to the possession, sale, purchase, transport, warehousing, use, consumption, import inter-State, export inter-State or import into India or export from India of narcotic drugs and psychotropic substances.

Section 42 of NDPS Act: Deals with the power of an authorized officer to seize drugs and substances, the procedure for making such seizure, and the safeguards to be followed.

Section 37 of NDPS Act: This section pertains to the presumption as to offences under certain sections of the Act, including the possession of illicit drugs in small quantities.

CONTENTIONS OF THE APPELLANT

The counsel appearing for the petitioner would vehemently contend that the petitioners are innocent and they have not committed the said offence. It is contended that the police arrested the accused Nos.1 to 3 from the native Orissa and fit the case against the present petitioners and implicated them in the present case. They have not transported the same as alleged by the prosecution. The entire CCB office is surrounded by the C.C.T.V footage but there is no description of parking of vehicle Infront of CCB office. No such transportation through the Cotton pet main road. The council also would vehemently contend that even an alleged mahazar is not in compliance with Section 42 of NDPS Act. It is also contended that the complainant police is not made any local witnesses as panchas and there is no bar to make them as local witnesses by seizing the same. The seizure of mahazar in police station is invalid. The counsel also would vehemently contend that these petitioners are in custody from last 10 months. The Counsel also submits that this Court has enlarged the accused persons in a similar set of facts wherein the seized ganja was to an extent of 122.60 Kgs of contraband narcotic substance having the market value of Rs.30,65,000/- was recovered from the vehicle since investigation has been completed and the petitioners are also entitled for bail.

CONTENTIONS OF THE RESPONDENTS

the counsel appearing for the State/respondent would contend that the seizure of ganja is 161 Kgs, the same is worth about Rs.1,40,00,000/- and also the counsel would vehemently contend that they are the residents of Orissa and they are not the local persons. Apart from that even the vehicle which is seized is registration of Orissa i.e., OD-24-J-5932. Hence, it is clear that the ganja is transported from Orissa to Bangalore. The counsel also would submit that along with 161 Kgs of ganja other articles were also seized by drawing the mahazar. The contention that not complied the mandatory provisions cannot be considered at this juncture and only Court has to take note of Section 37 of NDPS Act and accused persons have made out the case for granting the bail. Having heard the petitioners’ counsel and also the counsel appearing for the State/respondent and also the specific allegation made against the petitioners that they are the persons of Orissa origin and they are carrying contraband in their Swift Dezire car bearing No.OD-24-J 5932 considered the vehicle in which the ganja was seized is also having the registration of Orissa. It is also the case of the prosecution that they are the residents of Orissa and they transported the same. The fact that the ganja was seized in the conspicuous possession of these petitioners is not in dispute. It is also emerged during the investigation that the same was handed over by one Suresh to transport the same and admittedly the said Suresh was not arrested. No doubt this Court made an observation in the earlier order also that non arrest of the accused cannot be a ground to reject the same. But, in the case on hand, quantity of ganja seized is 161 Kgs and this Court granted bail in Crl.P.No.4619/2022 wherein the seized quantity is 122.60 Kgs. This Court earlier rejected the bail petition of the said petitioner. He is a resident of Karnataka and not from Outside. It is also important to note that the Court has to see the quantity of ganja seized and Orissa registration vehicle is involved in the incident for transportation of ganja and the quantity in this case is higher than the ganja seized in Crl.P.No.4619/2022, exercising the jurisdiction in respect of other case is concerned, the same cannot be a ground. The Court has to take note of the gravity of the offence as well as the offence is against the society at large, the ganja seized is more than 8 times of commercial quantity and they are in custody from last 8 months cannot be a ground to enlarge them on bail and it affects the society at large. Hence, the counsel for petitioners not made out any ground to enlarge them on bail.

COURT’S ANALYSIS AND JUDGEMENT

THIS CRL.P. IS FILED U/S.439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN SPL. C.C. No.637/2024 (CRIME No.359/2023) OF OFFENCE PUNISHABLE UNDER SECTION 20(b)(ii)(C) OF NDPS ACT, 1985, OF RESPONDENT COTTONPETE POLICE STATION, BANGALORE PENDING ON THE FILE BEFORE COURT OF THE CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, (NDPS), (CCH-33) AT BENGALURU, IN THE ENDS OF JUSTICE. Having heard the petitioners’ counsel and also the counsel appearing for the State/respondent and also the specific allegation made against the petitioners that they are the persons of Orissa origin and they are carrying contraband in their Swift Dezire car bearing No.OD-24-J 5932 considered the vehicle in which the ganja was seized is also having the registration of Orissa. It is also the case of the prosecution that they are the residents of Orissa and they transported the same. The fact that the ganja was seized in the conspicuous possession of these petitioners is not in dispute. It is also emerged during the investigation that the same was handed over by one Suresh to transport the same and admittedly the said Suresh was not arrested. No doubt this Court made an observation in the earlier order also that non arrest of the accused cannot be a ground to reject the same. But, in the case on hand, quantity of ganja seized is 161 Kgs and this Court granted bail in Crl.P.No.4619/2022 wherein the seized quantity is 122.60 Kgs. This Court earlier rejected the bail petition of the said petitioner. He is a resident of Karnataka and not from Outside. It is also important to note that the Court has to see the quantity of ganja seized and Orissa registration vehicle is involved in the incident for transportation of ganja and the quantity in this case is higher than the ganja seized in Crl.P.No.4619/2022, exercising the jurisdiction in respect of other case is concerned, the same cannot be a ground. The Court has to take note of the gravity of the offence as well as the offence is against the society at large, the ganja seized is more than 8 times of commercial quantity and they are in custody from last 8 months cannot be a ground to enlarge them on bail and it affects the society at large. Hence, the counsel for petitioners not made out any ground to enlarge them on bail. The Criminal Petition is Rejected.

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Judgement Reviewed by – HARIRAGHAVA JP

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8 Mar

The FSL report cannot be read as evidence when samples aren’t drawn in compliance with S.52A: Supreme Court

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Case Title : Mohammed Khalid and another versus The state of Telangana

Case No: Criminal Appeal No(s).1610 of 2023

Decided on: 10th November,2022.

Quorum: Judge Mehta

Facts of the case:

Mr.M.Srinavasa Rao, Inspector of Police received an information on 8th May,2009 regarding that the transportation of ganja by two persons from Sangareddy to Hyderabad in a Toyota Qualis Vehicle. It is alleged that three bundles of ganja weighing 80kgs found lying in the vehicle were seized. Both the persons were arrested and interrogated at the spot itself. Three samples weighing about 50 grams were drawn from each bundle and remaining muddamal ganja. Another sample was sent for investigation. After that charge sheet has filed on them. They sent for an appeal to high court. First time high court rejects and then after asking again for an appeal they will reconsider it. And they reinvestigate the case. Three samples were changed into 7 samples. That samples does not have any seals or identification marks .So they will not consider it as an evidence because it is not in a correct way.

Legal Provisions:

Section 20(b) of NDPS Act it deals with Narcotic drugs.

Section 313 of CrPC it deals that it questions the accused.

Section 374(2) of CrPC it deals that high court rejects judgement of trial court.

Contentions:

They go to appeal in high court and the evidences which are produced by police are not under safe custody. Both the accused were caught red handed in the vehicle with drugs. When they investigated and they said that they are supplying for two persons.

Court Analysis and Judgement:

It passed to high court of state of Telangana on 10th November,2022.Trial court sentenced that each of them to undergo rigorous imprisonment for the period 10 years and to pay fine of 1 lakh each. The evidences are reconsidered. But the evidences are not sealed by the trail court. They didn’t even took permission from the court regarding changing the evidences as 3 bags to 7 bags. The evidences are not in safe custody. So they cannot consider these evidences for the case. Affirming the judgment of the trial court convicting and sentencing the accused appellants for the charge under Section 8(c)read with 20(b)(ii)(c) of the NDPS Act is hereby quashed and set aside. The appellants are acquitted of all the charges. They are in custody and shall be released forthwith, if not wanted in any other case. The appeals are accordingly allowed.

Judgement Analysis Written by – K. Immey Grace

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5 Sep

The Bombay High Court at Goa grants bail to Nigerian national found in possession of drugs on the grounds that the criminal precedents cannot prevent his facility for bail.

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The Bombay High Court at Goa grants bail to Nigerian national found in possession of drugs on the grounds that the criminal precedents cannot prevent his facility for bail.

Title: Geoffrey Samuel Kelvin v. State

Decided on: July 10, 2023

Citation: 2023 SCC OnLine Bom 1368

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to a Nigerian national found in possession of drugs on the grounds that the criminal precedents cannot prevent him from using his facility for bail.

Facts of the Case

This is an application for bail for the offence registered against Nigerian National and holder of a Nigerian Passport. The applicant was apprehended and was found in possession of 20 gms of cocaine and 8 gms of MDMA. The quantity was however below the commercial quantity prescribed under the Narcotic Drugs and Psychotropic Substances Act, 1985. The offence was registered against the applicant under Section 21(b) and 22(b) of Narcotics Drugs Act, 1985.

Court Analysis and Judgement:

The Court took account of the fact that have been two criminal precedents against the applicant in the past. The first is an offence registered as far back in 2012 where the applicant was found with 10 gms of cocaine, again a variable quantity. In 2016, the applicant was arrested with 3.8 gms of Methamphetamine again a variable quantity. The trial in respect of these offences is still pending. However, the Court took into consideration the distance of time between the present offence and those registered earlier. According to the judge, the applicant should not be deprived the facility of bail only on the ground of criminal antecedents. The judge also found that the trial is likely to take a long time to conclude. Hence, bail was granted for Rs. 1,00,000.

Written by- Reema Nayak

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18 Jul

Accused acquitted under section 22(c) of the NDPS Act by Punjab high court

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TITLE: Gurjinder Singh v State of Punjab

Decided On-:01.6.2023

CRA-S-2808-2019 (O&M)

CORAM: Hon’ble Justice Mr. Sandeep Moudgil

INTRODUCTION- The trial judge in question, a learned trial judge who presided over the case under Section 22(c) of the NDPS Act, then proceeded to record a finding of guilt against the defendant. The accused convict has made the decision to file the current criminal appeal before this Court because he is dissatisfied with the above-drawn verdict of conviction as well as the subsequent sentences of imprisonment and fine that the learned convicting Court concerned imposed upon him.

FACTS OF THE CASE-

According to the case’s facts, Along with other law enforcement officers, ASI Nirmal Singh, who was assigned to PS Balachaur in the District of SBS Nagar, was out on patrol to check for dishonest characters travelling from Majaari to the direction of Mehndpur. When the police party arrived close to the Village Mehndpur cremation ground, they saw four people exiting a tube well in Jarnail Singh’s fields. They became terrified at the sight of the police party and tried to flee. They were also being pursued by the police, who caught one of them after he had collapsed in some fields. The person who was caught threw a polythene bag into the fields from his pocket. The bag in question was torn when it was picked up by the investigating officer. The aforementioned bag included four Dispovan-branded syringes, three injections, and intoxicating powder.

He identified himself and his address as Gurjinder Singh @ Ginda when questioned. He then weighed the potent polythene bag that Gurjinder Singh had thrown into the fields and that he had picked up; the weight of the bag was 372 gms. Three injections and four syringes were also placed in another parcel along with the aforementioned intoxicating powder. He sealed both packages with his seal, which had the impression “NS.” The suspect was taken into custody and thoroughly searched. The formal FIR was registered based on the rule that the investigating officer had prepared.

COURT ANALYSIS AND DECISION

As a result, he went on to file a charge against the defendant for a violation of Section 22(c) of the NDPS Act. The accused was presented with the previously stated charge; he pleaded not guilty and demanded a trial. The prosecution used five witnesses to support its case, and the learned public prosecutor in question then concluded the prosecution’s evidence. However, the prosecution has been able to present convincing evidence that the seizure was recovered, carried out at the crime scene, and then sealed with the appropriate seal impressions. However, reading the FSL report (supra) also reveals that the sealed cloth parcels were received there, keeping the seal impressions on them intact.It would seem that the material was placed in loose cloth parcels after being examined by the concerned chemical examiner, and that these loose cloth parcels were then sent to the person in charge of the malkhana in an unsealed condition.

“The result of the above discussion, is that, this Court finds merit in the appeal, and, is constrained to allow it. Consequently, the appeal is allowed. The impugned judgment convicting, and, sentencing the appellant, and, as become recorded by the learned trial Judge concerned, is quashed, and, set aside. The appellant is acquitted of the charge framed against him.”

Written by- Steffi Desousa

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