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Judgment
S Vishwajith Shetty, J
Accused No.1 in Spl.CC No.1780 of 2023 pending before the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru (CCH-33), arising out of Crime No.92 of 2023 registered by the Devarajeevanahalli Police Station, for the offences punishable under Sections 22(c) and 20(b)(ii)(B) of NDPS Act, is before this Court under Section 439 of Cr.P.C.
Heard learned counsel for the parties.
On the basis of report dated 30.04.2023 submitted by the Sub Inspector of Police, DJ Halli Police Station, Bengaluru, the Station House Officer of DJ Halli Police Station, Bengaluru had registered FIR in Crime No.92 of 2023 against the petitioner and another for the aforesaid offences. In the report, it is stated that on 30.04.2023 at about 15.30 hours, when the informant was in-charge of the station, he received credible information that within the jurisdiction of DJ Halli Police Station, at about 6.30 p.m. accused persons are likely to arrive at a spot for the purpose of selling contraband articles to the public. Thereafter, he allegedly made note about the information in the Station House Dairy and after obtaining permission from the higher officers, conducted raid to the alleged spot along with staff and panchas and arrested two persons who revealed their names as Riyaz Khan and Kaleem.
The said persons were apprehended and from the possession of Riyaz Khan, 163 grams of contraband article allegedly MDMA was seized and from the possession of Kaleem, 1 kg and 150 grams of contraband article ganja was seized. Thereafter, the apprehended accused and seized contraband articles which were subjected to panchanama were brought to the Police Station and FIR in Crime No.92 of 2023 was registered against the apprehended accused. Subsequently, they were produced before the jurisdictional Court and remanded to judicial custody. The investigation is completed and the charge sheet has been filed. The bail application filed by the petitioner in Crl.Misc.No.9040 of 2023 before the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru (CCH-33), was rejected on 27.09.2023. Therefore, he is before this Court.
Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the case. The requirement of Sections 42 and 50 of NDPS Act, which are mandatory in nature has not been complied in the present case. Accordingly, he prays to allow the petition.
Per Contra, learned High Court Government Pleader has opposed the bail application and submitted that huge quantity of contraband article has been seized from the custody of the petitioner. Therefore, he is not entitled for bail. Hence, he prays for dismissal of the petition.
On receipt of credible information, the informant who was in-charge of the police station, had conducted raid to the spot, where the accused persons were making attempt to sell contraband article. From the possession of the petitioner herein, 163 grams of contraband articles allegedly MDMA was seized.
Section 42 of NDPS Act provides that after the police officer receives credible information, he is required to make note of the said information in the concerned register and thereafter inform the same to his official superior before proceeding further. The said requirement of law which is mandatory in nature, has not been complied with in the present case.
The Hon'ble Supreme Court in TOFAN SINGH VS STATE OF TAMIL NADU reported in [(2021) 4 SCC 1], has held that compliance of Section 42 of NDPS Act, is mandatory.
From the reading of complaint as well as seizure mahazar, it is seen that the petitioner herein was carrying the contraband articles allegedly MDMA in a plastic cover which he was holding and the same was seized from him after he was apprehended. Since the contraband article is seized from the possession of petitioner, compliance of Section 50 of NDPS Act becomes necessary.
From a reading of notice issued to accused for the purpose of compliance of requirement of Section 50 of the Act, it is seen that the accused have not been informed about their right under Section 50 of NDPS Act to be searched in the presence of Gazetted Officer or Magistrate.
The Hon'ble Supreme Court in VIJAYSINH CHANDUBHA JADEJA VS STATE OF GUJARAT reported [(2011) 1 SCC 609] and also in the case of ARIF KHAN ALIAS AGHA KHAN VS STATE OF UTTARAKHAND reported in [(2018) 18 SCC 380], has held that non-compliance of Section 50 would be fatal to the case of prosecution.
Since Section 37(1)(b) of NDPS Act provides certain rigor for grant of bail to the accused who are involved in the cases registered under the provisions of NDPS Act, wherein the commercial quantity of contraband article is seized, the officers who investigate the case are expected to comply with the mandatory provision of law. Failure to comply the mandatory provision of law would result in drawing adverse inference against the case of prosecution.
In the case of VIJAYSINH CHANDUBHA JADEJA (supra), the Hon'ble Supreme Court has observed that failure to comply with the mandatory provision of law would not only cause prejudice to the accused, but also render recovery of contraband articles suspicious.
Undisputably, the petitioner has no criminal antecedents. He is in custody from 30.04.2023. Investigation in the case is completed and charge sheet has been filed. In the circumstances, I am of the opinion that the petitioner has made out a case for grant of regular bail. Hence, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The petitioner is directed to be enlarged on bail in Spl.CC No.1780 of 2023 pending before the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru (CCH-33), arising out of Crime No.92 of 2023 registered by the Devarajeevanahalli Police Station, for the offences punishable under Sections 22(c) and 20(b)(ii)(B) of NDPS Act, subject to the following conditions:-
a. The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the concerned Court;
b. The petitioner shall not tamper with the prosecution witnesses either directly or indirectly;
c. The petitioner shall appear before the Trial Court regularly on all dates of hearing unless her presence is dispensed with the Trial Court for valid reasons.
d. The petitioner shall not leave the jurisdiction of the Court without prior permission from the said Court till the disposal of the case.
e. The petitioner shall not involve in similar cases in future.