Nihas vs State By Excise Pi Karnataka Excise Department, Subramanyanagar Range Bengaluru Urban District Bengaluru-560055 Through State Public Prosecutor High Court Of Karnataka, Bengaluru-560001

H.P. Sandesh, J

These petitions are filed under Section 439 of Cr.P.C., seeking regular bail of the petitioners/accused No.1 and accused Nos.2 and 3, respectively in Crime No.15/2021- 22/3603DySE/360309, registered by the Excise Police Station, Subramanya Nagar Range for the offences punishable under Sections 8(c), 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short).

Heard the learned counsel appearing for the petitioners in both the petitions and the learned High Court Government Pleader appearing for the respondent/State.

The factual matrix of the case of the prosecution is that from accused No.1 seized MDMA weighing 40 grams. Based on his co-accused statement he led the team to the room, wherein, they found accused Nos.2 to 5 and also seized 20 grams of MDMA in the said room and those persons have also been arraigned as accused Nos.2 to 5. The matter is under investigation.

The learned counsel appearing for the petitioners would vehemently contend that an FIR was registered after 24 hours even though MDMA - 40 grams was seized from accused No.1 custody and a false implication is made invoking the NDPS Act and the matter is under investigation and these petitioners are in custody from the date of arrest i.e., 06.01.2022 and others are also arrested on the same day. The learned counsel also would submit that it is mentioned in the FIR that accused No.1 as well as four other persons are arraigned. But only three persons were arrested. Totally four accused persons. Hence, it is clear that a false case has been registered against the petitioners. Hence, they may be enlarged on bail.

Per contra, the learned High Court Government Pleader appearing for the respondent/State would submit that at the first instance from accused No.1, manufactured drug i.e., 40 grams of MDMA is seized. Apart from that, another 40 grams of MDMA was seized based on the statement of co-accused, led a team and found the other accused persons and the matter is under investigation and not yet filed the charge sheet. Hence, they are not entitled for bail.

Having heard the respective counsel and on perusal of the material available on record, at the first instance accused No.1 was apprehended and seized 40 grams of MDMA and the same is a manufactured drug. The Court has to see the trafficking of the manufactured drug and the same is a commercial quantity. When the same was seized at the instance of accused No.1, it is not a fit case at this juncture to enlarge him on bail unless charge sheet is filed.

However, taking into note of the allegation against the other accused persons and the recovery is made at the instance of those persons when accused No.1 led the team and they found in the room along with MDMA. Based on the co-accused statement only, the recovery was made and also taking into note of only 20 grams of MDMA and the seizure is also on account of accused No.1, led the team and seized the same and also they are in custody from the date of arrest i.e., almost six months. When such being the case, it is appropriate to exercise the discretion against the petitioners in Crl.P.No.1478/2022 and there is no other incriminating material against them. Hence, it is a fit case to exercise the powers under Section 439 of Cr.P.C., subject to imposing certain conditions to protect and safeguard the interest of the prosecution. Hence, I pass the following:-

ORDER

The petition filed under Section 439 of Cr.P.C., seeking regular bail of the petitioner/accused No.1 in Crl.P.No.1496/2022 is hereby rejected.

The Crl.P.No.1478/2022 is allowed. Consequently, the petitioners/accused Nos.2 and 3 shall be released on bail in Crime No.15/2021-22/3603DySE/360309, registered by the Excise Police Station, Subramanya Nagar for the offences punishable under Sections 8(c), 22 and 25 of the NDPS Act, subject to the following conditions:

(i) The petitioners shall execute personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties each for the like-sum to the satisfaction of the jurisdictional Court.

(ii) The petitioners shall not indulge in tampering the prosecution witnesses.

(iii) The petitioners shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The petitioners shall not leave the jurisdiction of the Trial Court without prior permission of the Court, till the case registered against them is disposed of.