Mohammed Bashir Shiyab vs Vs State Of Karnataka

S Vishwajith Shetty, J

Accused No.1 in S.C.No.148/2022 pending before the Court of Prl. District & Sessions Judge, D.K., Mangaluru, arising out of Crime No.48/2022 registered by the Mangalore North Police Station, Mangaluru, for the offences punishable under Sections 8(c), 22(c), 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 4, 25(1B), (b) and 20 of Arms Act, is before this Court under Section 439 Cr.P.C.

Heard learned counsel for the parties.

On the basis of the report submitted by Sub-Inspector of Police, Mangalore North Police Station, Mangaluru, dated 11.06.2022, FIR in Crime No.48/2022 was registered by the SHO of Mangaluru North Police Station, D.K., Mangaluru, against the petitioner herein for the aforesaid offences.

In the report it has been stated that, on 11.06.2022 at about 04.00 P.M. the informant had received credible information that a person was selling MDMA drug to the public near Rao and Rao circle at Mangalore. Thereafter, based on the said information, complainant raided the spot with his staff and independent panchas and apprehended the person who tried to run away from the spot after throwing the bag, which he was holding. The bag which was thrown by the said person was made to be picked up by him and on enquiry he informed his name as Mohammed Bashir Shiyab. From the bag totally 105.48 grams of MDMA was seized. Thereafter, the apprehended person and seized contraband article were produced before the police station and FIR was registered against the petitioner in Crime No.48/2022 for the aforesaid offences. Investigation in the case is completed and charge sheet has been filed.

Petitioner’s bail application filed in Spl.C.No.148/2022 before the Court of the Prl. District & Sessions Judge, D.K., Mangaluru, was rejected on 01.12.2022. Therefore, he is before this Court.

Learned counsel for the petitioner submits that there is no compliance of Section 50 of the NDPS Act in the present case. Investigation in the case is completed and charge sheet has been filed. The FSL report would go to show that the contraband article seized is Methamphetamine and not MDMA. Accused No.2 has been already enlarged on bail. Accordingly, prays to allow the petition.

Per contra, learned HCGP has opposed the bail application. She submits that even though the contraband article seized is found to be Methamphetamine, the same is still a commercial quantity. Accordingly, prays to reject the petition.

The material on record would go to show that on credible information, the complainant along with staff and Panchas raided the spot on 11.06.2022 and the petitioner after spotting the raiding squad had allegedly thrown the bag which he was holding and tried to run away. The petitioner was apprehended when he tried to escape and thereafter, he was made to pick up the bag, which he had thrown and from the said bag 105.48 gram of contraband article MDMA was seized. The material on record would also go to show that from the person of the petitioner two mobile phones were seized and the contraband article MDMA as well as the mobile phones which were seized from the person of the petitioner were subjected to panchanama. Learned counsel for the petitioner has strongly submitted that Section 50 of the NDPS Act has not been complied with. It is his specific contention that since there was a personal search of the petitioner and recovery of mobile phones were made from the person of the petitioner, compliance of Section 50 of the NDPS Act is mandatory.

The Hon’ble Supreme Court in almost identical circumstances in the case of SK Raju alias Abdul Haque alias Jagga Vs. State of West Bengal - (2018) 9 SCC 708 has observed that : In a case where search and seizure is made in a public place and recovery is made from the person of the accused, compliance of Section 50 is mandatory. In the said case, from the person of accused, cash was recovered and the contraband article was recovered from the bag. The Hon’ble Supreme Court has held that even then compliance of Section 50 of the NDPS Act is mandatory.

In the background of said judgment, if the present case is tested there is no compliance of Section 50 of the NDPS Act in the present case. In addition to the same, the contraband article seized is now reported to be Methamphetamine and not MDMA. Accused No.2 has been already enlarged on bail. It is trite law that since Section 37(1)(b) of the NDPS Act provides for certain restrictions for granting of bail to an accused, who is involved in offences punishable under the provisions of NDPS Act wherein commercial quantity of drug is involved, strict compliance of the provisions of the Act is expected from the Investigating Officer. The absence of any such compliance would go in favour of the accused persons. In the present case there is a total non-compliance of Section 50 of the NDPS Act. Petitioner undisputedly has no criminal antecedents. He is in custody since 11.06.2022. Investigation in the case is completed and charge sheet has been filed. Under these circumstances, I am of the view that the petitioner’s prayer for grant of regular bail is required to be answered in the affirmative. Accordingly, the following order:

The petition is allowed. The petitioner is directed to be enlarged on bail in S.C.No.148/2022 pending before the Prl. District & Sessions Judge, D.K., Mangaluru, arising out of Crime No.48/2022 registered by the Mangalore North Police Station, Mangaluru, for the offences punishable under Sections 8(c), 22(c), 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 4, 25(1B), (b) and 20 of Arms Act, subject to the following conditions:

a) Petitioner shall execute personal bond for a sum of Rs.1,00,000/- (one lakh) with two sureties for the likesum, to the satisfaction of the jurisdictional Court;

b) 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) Petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

d) Petitioner shall not involve in similar offences in future;

e) Petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.