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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: 16nd 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

  1. Whether the petitioners are entitled to bail under Section 439 of the Criminal Procedure Code (Cr.P.C.)?
  2. Whether the allegations against the petitioners regarding the transportation of contraband substances are substantiated?
  3. 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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