Inayath vs State By Tunganagara Police Station, Shivamogga - 577201, Represented By: State Public Prosecutor Karnataka High Court Building, Bangalore - 560001

Venkatesh Naik T, J

Heard Sri.K.V.Sateeshchandra, learned counsel for petitioner and Sri.Divakar Maddur M., learned High Court Government Pleader for the respondent-State.

The petitioner/accused No.2 has filed this petition under Section 439 of Cr.P.C., for grant of bail, for the offence punishable under Sections 8(C), 20(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 on the file of the learned Principal District and Special Judge, Shivamogga in Crime No.437/2023 of Tunga Nagar, Police Station, Shivamogga.

The brief facts of the prosecution case is as under:-

on 13.11.2023 at about 11.20 am, when the complainant was in Police Station, he received a credible information over phone that two persons are selling ganja in their car at Ramenakoppa, Tunga Upper Channal. Hence, the complainant secured two panchas and along with his Sub Staff proceeded to the spot and conducted a raid on accused Nos.1 and 2 and seized ganja of about 5 kg 230 grams and conducted seizure panchanama, seized the car and lodged the complaint. In turn, accused Nos.1 and 2 were remanded to judicial custody.

Learned counsel for the petitioner contended that petitioner is innocent, he has not committed any offence as alleged by the prosecution. The ganja seized from the possession of accused by the prosecution is not a commercial quantity. Therefore, the rigor of Section 37 of NDPS Act, will not attract. Hence, petitioner is entitled for bail.

Learned HCGP contended that petition is not maintainable either in law or on facts, there is sufficient material against accused No.2 and the Investigation Officer has seized 5 kg 230 grams of dry ganja from the possession of accused Nos.1 and 2. Hence learned HCGP prays to reject the petition.

The material on record discloses that on 13.11.2023 at about 11.20 am, the first informant and his Sub Staff conducted a raid on accused Nos.1 and 2 in the presence of panch witnesses and seized 5 kg 230 grams of ganja from them. Hence, complainant seized the same by drawing panchanama in the presence of witnesses.

At this juncture, it is relevant to refer Section 37 of NDPS Act, which reads as thus:-

"37. Offences to be cognizable and non-bailable____(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)____

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless_____

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]

In the case on hand, the contraband seized from the possession of petitioner and another is 5 kg 230 grams of dry ganja. As per the specification of 'small' and 'commercial quantity' of Narcotic Drugs or Psychotropic Substances issued by Ministry of Finance Department of Revenue Notification No.S.01055(e) dated 19.10.2021 at Sl.No.55 for the narcotic drugs ganja of 1000 grams is small quantity and 20 kgs is commercial quantity. In this case, the quantum of ganja seized being 5 kg 230 grams is not a commercial quantity and hence, rigors under Section 37 of NDPS Act would not apply.

The Hon'ble Apex Court in the case of Birbal Prasad @ Birbal Prasad Sah Vs State Of Bihar reported in 2018 11 SCC 488 held that "considering the fact that the quantity seized being only 14 kgs of ganja, which is non-commercial quantity and accused was not involved in other cases has granted bail to the accused. Whereas in the instant case, accused No.1 is involved in 8 similar cases. However, accused No.2/petitioner is not involved in any other cases. This aspect is not disputed by the learned HCGP. In the case on hand, the contraband alleged to have been seized from the possession of petitioner is a non-commercial quantity. The offences alleged is not punishable with death or imprisonment for life. The petitioner is stated to be the permanent resident of the address shown in the cause title and prosecution does not dispute the said aspect.

It is well established principle of law that while considering the bail, Court has to consider the nature of offence, circumstances in which the offence is committed and position and status of the petitioner with reference to the victim's witnesses, likelihood of fleeing away from justice or repeating the same offence by the petitioner, character and antecedents of the petitioner. Keeping all these factors in mind, on careful perusal of the entire material placed on record, this Court is of the opinion that petitioner is entitled for grant of bail.

Hence, the petition is allowed.

Petitioner is ordered to be enlarged on bail in Crime No.437/2023 of Tunganagar Police Station, on executing a personal bond of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for likesum to the satisfaction of the trial

Court, subject to the following conditions:

i) The petitioner shall mark his attendance before the Investigating Officer/Station House Officer on 1st and 16th of every month, between 10.00 am to 5.00 pm, for a period of six months or till filing of final report, whichever is earlier.

ii) The petitioner shall not tamper with the prosecution witnesses.

iii) The petitioner shall appear before the trial Court on all the dates of hearing without fail.

iv) The petitioner shall not indulge in similar activities.