Azaruddin vs State By CEN Crime P.S Mangalore City Represented By State Public Prosecutor High Court Buldings Bengaluru - 560001

S Vishwajith Shetty, J

Accused No.3 in Spl.C.No.87/2024 pending before the Court of Principal District and Sessions Judge, D.K, Mangaluru, arising out of Crime No.225/2023 registered by CEN Crime Police Station, Mangaluru City for the offences punishable under Sections 8(c), 21, 21(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS' Act) is before this Court seeking regular bail.

Heard the learned counsel appearing for the parties.

FIR in Crime No.59/2023 was registered by CEN Crime Police Station, Mangaluru City against one Nawas and two others initially for the offences punishable under Sections 8(c), 21, 21(c) of the NDPS Act, on the basis of first information dated 08.12.2023 received from Sri Sharanappa Bhandary, Police Sub Inspector, attached to CCB Unit, Mangaluru, D.K District. During the course of investigation, the petitioner who was arrayed as accused No.2 in the FIR was produced before the jurisdictional Court and remanded to judicial custody on 08.12.2023. Investigation in the case is complete and charge sheet has been filed. In the charge sheet, petitioner is arrayed as accused No.3.

The bail application filed by the petitioner before the jurisdictional Sessions Court in Spl.C.No.87/2024 was dismissed on 02.07.2024. Therefore, he is before this Court.

Learned counsel for the petitioner submits that the seized contraband article has now tested positive to a drug known as 'Methaamphetamine' and therefore contraband articles seized from the possession of the petitioner is of intermediate quantity. He submits that the petitioner who is a married man is in custody from 08.12.2023. Since contraband articles seized is not of commercial quantity rigor under Section 37(1)(B) of the NDPS Act cannot be made applicable to the petitioner. Accordingly, he prays to allow the petition.

Per contra, learned HCGP has seriously opposed the petition. He submits that though contraband articles seized from the petitioner is of intermediate quantity, the police have altogether seized 120 grams of contraband articles in the present case which totally amounts to commercial quantity. He submits that the petitioner is a person with criminal antecedents. Accordingly, he prays to dismiss the petition.

The material on record would go to show that on receipt of credible information the first informant had conducted a raid to the alleged spot where the accused persons were making attempt to sell the contraband articles to the public. From the alleged spot, accused Nos.1 and 2 named in the FIR were apprehended and from the possession of accused No.1 in the FIR namely Nawas 70 grams of contraband article allegedly MDMA was seized and from the possession of the petitioner herein who is arrayed as accused No.2 in the FIR 50 grams of contraband article allegedly MDMA was seized. On enquiry, Nawaz and the petitioner had informed the Police that Riyaz, who is arrayed as accused No.3 in the FIR had handed over the aforesaid contraband articles to Nawaz, who had gone to purchase the contraband articles from Riyaz.

From the material on record, it is very clear that Nawas had purchased 70 grams of contraband article allegedly MDMA from Riyaz where as the petitioner herein had purchased 50 grams of contraband articles allegedly MDMA from Riyaz. The contraband articles seized in the present case from the possession of the petitioner is now tested positive during chemical examination for a drug known as 'Methaamphetamine'. 50 grams of Methaamphetamine is considered as a intermediate quantity. Therefore, rigor under Section 37(1)(b) cannot be made applicable to the petitioner.

Though the learned HCGP has submits that the petitioner has criminal antecedents, the material on record would go to show that two criminal cases have been registered against him, one is for the offence punishable under Section 306 of IPC and another is for the offence punishable under Section 27(b) of the NDPS Act and the maximum punishment for the offence under Section 27(b) of the NDPS Act is imprisonment for a period of six months. The petitioner is in custody from 08.12.2023. Investigation in the case is complete and charge sheet has been filed. The prosecution has altogether cited 26 charge sheet witnesses in the present case. The case before the Trial Court is still at the state of hearing before charge.

Considering the aforesaid aspects of the matter, I am of the opinion that the prayer made by the petitioner for grant of regular bail is required to be answered affirmatively.

Accordingly, the following:

ORDER

The petitioner is directed to be enlarged on bail in Spl.C.No.87/2024 pending before the Court of Principal District and Sessions Judge, D.K, Mangaluru, arising out of Crime No.225/2023 registered by CEN Crime Police Station, Mangaluru City for the offences punishable under Sections 8(c), 21, 21(c) 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, 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;

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;

If the petitioner violates any one of the above conditions, the State is at liberty to seek cancellation of bail.