Kumar vs The State of Karnataka

Budihal R.B, J.—This is the petition filed by the petitioner-accused No. 1 u/s 439 of the Cr.P.C. seeking his release on bail of the alleged offences punishable u/s 20(b) and 22 of the N.D.P.S. Act registered in respondent-Police Station Crime No. 2/2014.

Heard the arguments of the learned Counsel appearing for the petitioner/accused No. 1 and also the learned High Court Government Pleader for the respondent/State.

Learned Counsel for the petitioner during the course of his arguments made the submission that now the investigation of the case is completed and the charge sheet has been filed. The continuance of the petitioner in custody is not required. He also submitted that even on earlier occasion also he approached this Court seeking his release on bail. But this Court observing that the investigation is going on, giving liberty to the present petitioner, the petition was disposed of that he can apply for bail after completing the investigation. He also made the submission that there is no strict compliance of Section 50 of the N.D.P.S. Act in this case. Hence, he made the submission that the petitioner is ready to abide any conditions to be imposed by the Court and he may be released on bail. In support of his contention, the learned Counsel for the petitioner-accused No. 1 relied upon a decision reported in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, .

As against this, the learned High Court Government Pleader during the course of his arguments made the submission that looking to the quantity of the ganja seized in this case, it goes to show totally 44 kgs. and if it is taken individually 22 kgs. He also submitted that the ganja has been seized from the person of the present petitioner in the presence of panch witnesses. Hence, he submitted that the petitioner is not entitled to be granted with bail since the quantity of the ganja seized is above the commercial quantity. Hence, the learned High Court Government Pleader submitted to reject the petition.

I have perused the averments made in the bail petition, FIR, complaint and other materials produced in the case so also the decision and the principle enunciated in the said decision of the Hon''ble Supreme Court relied upon by the learned Counsel for the petitioner herein. Earlier, the present petitioner approached this Court in Crl. P. No. 1796/2014 and the same has been disposed of by this Court on 15th April 2014. The copy of the said order is produced.

I have perused the same. In view of the submission made by the learned High Court Government Pleader that as the matter is still under investigation the petition was disposed of without expressing any opinion as to the entitlement or otherwise of the petitioner-accused No. 1 and it was observed by this Court that after completing the investigation and filing of the charge sheet he is at liberty to approach the Court and accordingly, the present petition has been filed by the petitioner.

It is the case of the prosecution that from the possession of the petitioner the ganja which is more than the commercial quantity has been seized in the presence of panch witnesses. I have also perused the seizure mahazar produced in the case.

Looking to the decision of the Hon''ble Supreme Court that whenever such seizure is made from the person of the accused Section 50(1) and the procedure enunciated therein is a mandate and the strict compliance is necessary. It is also observed by Their Lordships of the Hon''ble Supreme Court that to have more transparency in the case it is necessary to take the said persons before the nearest Magistrate. In this case, though it is contended by the prosecution that before conducting the personal search the Police Officer asked the present petitioner whether seizure is to be done in the presence of the Magistrate or before the Police Officer. The present petitioner chosen the option that it can be before the Police Officer. But only on the basis of this, it cannot be said that there is a strict compliance of the mandatory requirement of law. Not only that, the Police Officer ought to have explained to the petitioner that he is having a legal right that he can choose any one. Having such legal right under the law by the petitioner. It is not at all explained to the petitioner by the concerned Police.

Apart from that, now the investigation is completed and charge sheet has been filed. The present petitioner has undertaken in the petition that he is ready to abide any conditions to be imposed by the Court.

Therefore, looking to these materials so also the legal position laid down by the Hon''ble Supreme Court, I am of the opinion that, by imposing reasonable conditions the petitioner can be enlarged on bail.

Hence, petition is allowed. The petitioner is ordered to be released on bail of the alleged offences subject to the following conditions:

i) Petitioner to execute personal bond for Rs. 50,000/- and to furnish one solvent surety for the like sum to the satisfaction of the concerned Court.

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

iii) He has to appear before the concerned Court regularly.