Mohammed Mahsook vs State Of Karnataka

S Vishwajith Shetty, J

Accused in Spl.Case No.70/2023 pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases, at Bengaluru (CCH-33) arising out of Crime No.109/2022 registered by Kalasipalya Police Station for the offence punishable under Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS' for short) is before this Court seeking regular bail.

Heard the learned counsel for the parties.

On the basis of credible information received, the complainant, who is a Sub-Inspector of Police, Kalasipalya Police Station, on 14.07.2022 at about 12.35 p.m. raided the spot along with his staff and independent panchas and apprehended the suspected person holding a green and black coloured bag. On enquiry, the said person revealed his name as Mohammed Mahsook and he also revealed that the bag, which he was holding contained ganja. The bag, containing contraband article - ganja was seized and on weighing the same, it was found that the bag contained 22 Kgs and 810 grams of ganja. The same was subjected to mahazar and thereafter, the apprehended person and the contraband article were brought to the police station and a complaint was lodged on 14.07.2022, which had resulted in registering FIR in Crime No.109/2022 by the Kalasipalaya Police against the petitioner herein for the aforesaid offences.

Investigation in the case is completed and charge sheet has been filed. Petitioner's bail application filed before the Court of XXXIII Additional City Civil and Sessions Judge & Spl. Judge (NDPS), Bengaluru in Crl. Misc. No.1099/2023 was rejected on 02.03.2023. Under these circumstances, the petitioner is before this Court.

Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the contraband article seized cannot be considered as ganja within the meaning of Section 2(iii)(b) of the NDPS Act. He further submits that Section 42 of the NDPS Act has not been complied. He also submits that there is an inordinate delay in drawing the sample and also getting the inventory certified by the jurisdictional Magistrate and there is no strict compliance of Section 52A of the NDPS Act. He further submits that petitioner is in custody since 14.07.2022. He has no criminal antecedents. Investigation in the case is completed and charge sheet has been filed. Accordingly, prays to allow the petition.

Learned HCGP has opposed the bail application and submits that in view of Section 37(1)(b) of the NDPS Act, since the seized contraband article is of commercial quantity, petitioner cannot be granted bail. Accordingly, prays to dismiss the petition.

On 14.07.2022, the complainant on receipt of credible information had raided the spot and apprehended the petitioner, who allegedly carried a bag, which contained 22 Kgs and 810 grams of ganja. The material on record would go to show that there is no compliance of Section 42 of the NDPS Act before the raid was conducted and the complainant had not reduced the credible information received by him in writing before proceeding to the spot, but the complainant had only sought permission from his higher officers and that itself cannot be said to be compliance of Section 42 of the NDPS Act.

In addition to the same, in the complaint as well as in the charge sheet, the seized contraband article is referred to as the leaves of ganja plants. Even in the seizure mahazar it has been referred that the bag containing ganja leaves, totally weighed 22 Kgs and 810 grams. The word ganja is defined under Section 2(iii)(b) of the NDPS Act, which reads as under:

" (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;"

Considering the aforesaid definition of the word ganja, it becomes highly doubtful whether the seized contraband article can be considered as a ganja.

The material on record would go to show that the petitioner was apprehended on 14.07.2022 and the contraband article - ganja was seized from his possession on 14.07.2022 itself and the same was subjected to mahazar. However, the seized contraband article - ganja was produced before the jurisdictional Magistrate only on 02.09.2022 for the purpose of drawing the sample and also for certification of the inventory. The material on record would further go to show that the sample, which was drawn on 02.09.2022 was subsequently forwarded to FSL for chemical examination on 09.09.2022.

A reading of Section 52A of the NDPS Act would make it clear that the Investigation Officer has to produce the seized contraband article before the jurisdictional Magistrate for the purpose of drawing the sample and certification of the inventory at the earliest. The Central Government has issued Standing Order in this regard. The Delhi High Court in the case of KASHIF Vs. NARCOTICS CONTROL BUREAU in Bail Appln. 253/2023 after interpreting Standing Order 1/88 has observed that the Investigation Officer should produce the contraband article seized before the Magistrate at the earliest and in normal circumstance, it has to be done within 72 hours from the date and time of seizure. However, in the present case, after a period of one and half month, the contraband article - ganja has been produced by the Investigation Officer before the jurisdictional Magistrate for the purpose of drawing the sample and certifying the inventory.

Section 37(1)(b) of the Act provides for certain restriction to grant bail to an accused, who is involved in a case for the offence punishable under the NDPS Act involving contraband article of commercial quantity. While such restrictions are provided by the statue, the Investigation Officer is expected to comply the mandatory requirements of law strictly. Any non-compliance of the mandatory requirements of the statutory provisions, is required to be considered seriously and adverse inference is required to be drawn infavour of the accused person. Petitioner, who is aged about 21 years, is in custody since 14.07.2022. Undisputedly, he has no criminal antecedents. Under these circumstances, I am of the view that the petitioner's prayer for grant of regular bail is required to be answered affirmatively. Accordingly, the following:

ORDER

The petition is allowed.

The petitioner is directed to be enlarged on bail in Spl.Case No.70/2023 pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases, at Bengaluru (CCH-33) arising out of Crime No.109/2022 registered by Kalasipalya Police Station for the offence punishable under Section 20(b)(ii)C of NDPS 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) 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.