RUPAI KUMAR DAS vs STATE OF KARNATAKA

Since these two petitions are in respect of same crime and since common questions of law and facts are involved in these two petitions, they are

taken up together to dispose of them by this common order.

Crl.P.9138/2017 is filed by the petitioner/accused No.2 and Crl.P.9139/2017 is filed by petitioner/accused No.3, both the petitions are filed

under Section 439 of Cr.P.C. seeking their release on bail of the offences punishable under Sections 20(b) of Narcotic Drugs and Psychotropic

Substances Act, registered in respondent - police station Crime No.409/2017.

Heard the arguments of the learned counsel appearing for the petitioners/accused in respect of both the petitions and also the learned High

Court Government Pleader appearing for the respondent-State.

I have perused the grounds urged in both the bail petitions, FIR, complaint and other materials placed on record.

As per the complaint averments it is the case of the prosecution that complainant received credible information at 8.05a.m. on that particular day

that accused persons involved in selling ganja and others possessed ganja without any valid documents. Immediately the complainant secured two

panch witnesses and along with the staff, he proceeded to the spot and caught hold the petitioners and conducted personal search of the

petitioners. Petitioners were possessing ganja, same was seized in the presence of panch witnesses under the seizure mahazar. Thereafter, the

complainant came back to the police station along with the seized material and the petitioners and then lodged the complaint.

The prosecution material shows that there is a mention in the Station House Diary that credible information was received at 12.45p.m., so it is

contrary to the contents of the complaint that credible information was received at 8.05 in the morning. If really the information was received at

8.05a.m., nothing is prevented the complainant to immediately make an entry in the Station House Diary regarding the same in compliance of

Section 154(1) of Cr.P.C., because there was already an information regarding the commission of a cognizable offence by the accused persons.

Therefore, there is no consistency in the case of the prosecution regarding the time at which the credible information said to have been received by

the complainant. Therefore, there is non-compliance of mandatory requirement of Section 42(1) of NDPS Act.

In the complaint it is mentioned that personal search of the petitioners was also conducted, if that is so, Section 50 of NDPS Act comes into

play. The prosecution has to place the material to show that before conducting the personal search, the mandatory requirements of Section 50 of

NDPS Act are complied with.

Perusing the complaint averments and also the seizure mahazar, there is no specific averment in the materials that they have explained the

accused persons about their legal right to exercise their option whether personal search has to be conducted before the Gazetted Officer or before

the Magistrate, in the absence of such material, it cannot be said that there is compliance of Section 50 of NDPS Act.

Apart from that regarding the quantity of ganja alleged to have been seized from the possession of petitioners and looking to the definition clause

in Section 2(b) of NDPS Act, it is only flowering or fruiting tops to be taken into consideration, but looking to the prosecution material, ganja

plants including stem, roots, everything have been weighed. Therefore, regarding the quantity mentioned by the prosecution it cannot be said that it

is in compliance of Section 2(b) of NDPS Act.

The petitioners have contended in their respective petitions that they are innocent, not involved in committing the alleged offence and they have

been falsely implicated in the case. They have also undertaken to abide by any conditions to be imposed by this Court. The alleged offences are

also not exclusively punishable with death or imprisonment for life. Looking to these materials, I am of the opinion that by imposing reasonable

conditions, petitioners can be granted with bail. Accordingly, both the petitions are allowed. Petitioners/accused Nos.2 and 3 are ordered to be

released on bail for the offence punishable under Section 20(b) of NDPS Act, registered in respondent - police station Crime No.409/2017,

subject to the following conditions:

i. Each petitioner shall execute a personal bond for Rs.1,00,000/- and shall furnish one surety for the likesum to the satisfaction of the concerned

Court.

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

iii. Petitioners have to appear before the concerned Court regularly.