C. Nagaraja vs State of Karnataka

Since these three petitions are in respect of same crime number and since common questions of law and facts are involved in these three

petitions, they are taken up together to dispose of them by this common order in order to avoid repetition of discussion of factual and legal aspects.

The petition in Crl.P.No.684/2018 is filed by the petitioner/accused No.3, the petition in Crl.P.No.576/2018 is fled by the petitioner/accused

No.2 and the petition in Crl.P.No.735/2018 is filed by the petitioner/accused No.1. All these petitions are filed under Section 439 of Cr.P.C

seeking their release on bail for the offence punishable under Section 20(B) of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (for

brevity ''the NDPS Act'') registered in Respondent-police station in Crime No.247/2017.

The brief facts of the prosecution case as per the complaint averments that on 13.12.2017 at about 2.25 p.m., the complainant received the

credible information that about 3 persons near Royal Enfield Showroom Empty place, AECS Layout, Singasandra, Bengaluru were selling Ganja

and the complainant informed to the higher officers and complainant summoned the panchas and thereafter, the complainant along with panchas

and staff come to the said place and encircled them and apprehended three persons, whose names were mentioned in the complaint and the

complainant in the presence of Gazetted Officer conducted the search and found 11 plastic covers consisting of 23 kgs Ganja worth of

Rs.2,00,000/- and seized the said Ganja under seizure mahazar and brought the accused persons to the police station and registered the case for

the said offence.

Heard the arguments of learned counsel appearing for the petitioner/accused in all the petitions and also the learned High Court Government

Pleader appearing for the Respondent-State.

I have perused the grounds urged in these bail petitions, FIR, complaint, charge sheet and other materials placed on record.

Firstly, though it is stated that the credible information received by the complainant that about 3 persons were selling Ganja, he was supposed to

mention about the credible information in the Station House Diary without any loss of time, but he has not mentioned in the complaint that such

entry was not made in the Station House Diary about the credible information. Therefore, there is no compliance of section 42(1) of NDPS Act.

So far as personal search is concerned, in the complaint it is mentioned that though they called Gezetted officer and in the presence of the Gazetted

officer along with panchas and staff Ganja possessed by the three accused persons were seized. The requirement of section 50 of the NDPS Act

referring to personal search ought to have conducted by the Police officer, there is no mention, especially in the complaint itself that before

conducting the personal search before the Gazetted Officer, the accused persons were informed about their legal right and they can exercise the

option regarding the search of substance or article before the Gazetted officer or before Magistrate. In the absence of such mention, there is no

compliance of Section 50 of the NDPS Act.

Secondly, regarding the quantity of the Ganja said to have been seized, there is no mention that from out of three accused persons which

accused was possessed and what quantity of Ganja possessed by each of the accused persons. It is simply mentioned in the complaint that from

the possession of the accused person 23 kgs of Ganga worth of Rs.2,00,000/- have been seized. In view of the said lacuna in the complaint and

non-compliance of requirements of the NDPS Act, though alleged 23 kgs of Ganja seized from all the three accused persons, which is above the

commercial quantity, I am of the opinion that Section 37 of the NDPS Act, will not come in the way. The petitioners denied all the allegations

made against them contending that they are falsely implicated in this case and they undertaken that they are ready to abide by any reasonable

conditions to be imposed by this Court. Though the alleged offence is non-bailable in nature, but it is not exclusively punishable with death nor

imprisonment for life From the date of arrest, the accused persons are in judicial custody. For the present, nothing further is to be seized from their

possession. Looking to these materials, I am of the opinion that by imposing reasonable conditions, the petitioners can be admitted to the regular

bail.

Accordingly, these petitions are allowed. Petitioner/accused No.3 in Crl.P.No.684/2018, Petitioner/accused No.2 in Crl.P.No.576/2018 and

Petitioner/accused No.1 in Crl.P.No.735/2018 are ordered to be released on bail for the offence punishable under Section 20(B) of the NDPS

Act, registered in Respondent-police station in Crime No.247/2017, subject to the following conditions:

i. Petitioners shall execute a personal bond for Rs.50,000/- each and shall furnish one surety for the likesum to the satisfaction of the concerned

Court.

ii. Petitioners shall not tamper with any of the prosecution witnesses, directly or indirectly.

iii. Petitioners shall appear before the concerned Court regularly.