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Karnataka High Court
Shankar Krishnasa Habib - Appellant
Versus
State of Karnataka - Respondent
Decided On : 09-16-91
CRIMINAL PETITION : 1142 of 1991
Held: From a reading of Section 20 subsection (1) of the Act, it is clear that any contravention relating to ganja or the cultivation of cannabis plant, the punishment will be rigorous imprisonment for a term of five years and shall also be liable to fine which may extend to fifty thousand rupees. Other than ganja, the rigorous imprisonment shall be minimum ten years and maximum twenty years. Fine from one lakh to two lakh rupees. (para 8)
Section 37 sub-section (b) of the Act says that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bailor on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release before passing bail and where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused are not accused of such offence and that they are not likely to commit any offence while on bail. A reading of sub-section (b) (i) and (ii) of Section 20 of the Act makes it clear that punishment relating to possession of ganja comes within 5 years and not above 5 years. Even the fine also is less than what is the maximum prescribed under Section 37 of the Act. From this it is clear that possession of ganja when compared to charas etc., is not so serious or severe. Hence, it has to be said that under Section 37 of the Act if accusation is that a person is in possession on ganja, is entitled for bail provided prosecution is heard in the matter and court comes to a conclusion that no reasonable grounds are made out so as to connect the petitioner with the offence alleged and also on a condition that in the event of release he would not jump bail or repeat the same offence. (Para 8)
Further held: For an offence punishable under N.D.P.S Act it cannot be considered that there is a total bar for bail. But what the N.D.P.S. Act says is that a person accused of an offence punishable for imprisonment for a term of 5 years or more his request will be considered only when the Public Prosecutor has an opportunity to oppose such an application and secondly when the public Prosecutor opposes such an application the court is satisfied that on the material collected there are reasonable grounds to believe that the person against whom accusation is made is not guilty of such offence and thirdly in case of release he is not likely to commit any offence. For those offences punishable under Section 37 of N.D.P.S. Act discretionary power given to the Court to order release of a person more rigorous and to be used very cautiously, unlike order to release a person on bail by exercising the power under Section 439 Cr. P.C. Release under N.D.P.S. Act based on conditions mentioned in Section 37 of the Act apart from other factors, including the paramount consideration like in case of release whether the accused will flee from justice or does he make an attempt to tamper with the prosecution evidence. The discretionary power conferred under Section 439 Cr. P.C. is subject to the limitations imposed under Section 37 of N.D.P.S. Act. (para 10)
Result: Application Allowed.
( 1 ) THIS is a petition filed under Section 439 of the Code of Criminal Procedure. The offences alleged are punishable under Ss. 17, 18, 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the Act) read with Section 34 of Karnataka Excise Act. Similar petition was filed before the Principal Sessions Judge (Special Judge), Dharwad in Crime No. 75/91. The said petition was opposed by the State. Learned Sessions Judge by an order dated 12-8-91 rejected the said petition.
( 2 ) THE case of the prosecution is that on an information received by the P. S. I. Ganthikeri Police Station of Hubli at about 10 p. m. on 31-7-199l to the effect accused - petitioners herein, who are residents of Aralikatti Oni of Hubli coming within the limits of Ganthikeri Police Station are engaged in the Narcotic trade and have huge stock of Ganja in their residence, he along with panchas raided the house of the petitioners. On a tharough search of the premises, detected 2 gunny bags containing ganja weighing 50 Kgs each valued at Rs. 15,000/- each. When the petitioners were interrogated to produce a valid permit or licence for possession of the same, they were not able to give any satisfactory reason. Hence, the said material was seized from the accused under a panchanama. A mahazar was drawn. The petitioners were arrested. Then, a case came to be registered in Crime No. 75/91 for offences punishable under Ss. 17, 18, 21 and 22 of the Act read with S. 34 of the Karnataka Excise Act. The further case of the prosecution is that pursuant to registering a case, immediately F. I. R. was submitted to the Sessions Court, Dharwar. Accused were produced before the Sessions Judge on 1-8-1991 and they were remanded into judicial custody up to 12-8-91 and subsequently up to 4-9-1991.
( 3 ) FURTHER case of the prosecution is that during investigation they recorded the statements of five witnesses viz. , 1) S. I. Imadi, 2) A. P. Kallur, 3) S. S. Gayakwad, 4) S. F. Madivalar and 5) M. N. Iyati, who are all direct witnesses for the seizure of 2 bags of ganja. After seizure, the said two bags were sent to chemical examination. Its report is awaited.
( 4 ) NOW, the petitioners against whom accusation has been made, contend as follows:i) They are innocent of the guilt accused;ii) A reading of the complaint does not disclose as to who exacly was in possession of two bags of ganja;iii) The petitioners are not the owners of the ganja in question. In the premises where the petitioners are tenants, other tenants also occupying different portions. The family of the petitioners consist of themselves, their parents, their wives, brothers and sisters and their children.
( 5 ) THE complaint reads as follows (Vernacular Matter Omitted. . . . . . Ed.) a reading of the complaint to connect the petitioners with the offences of the Act viz. , Ss. 17, 18, 21 and 22 of the Act makes it clear that the same is the resultant of non-application of mind. The specific case of the complainant is about the seizure of ganja, whereas Ss. 17 and 18 of the Act say about some other prohibited articles under the Act. According to them, they being innocent, they be released on bail.
( 6 ) SRI Muddahanumegowda, learned Counsel for the petitioners further submits that both the petitioners have roots in the society, particularly petitioner No. 1 is a chronic mental patient and taking treatment in mental hospital, Hubli. If they are released on bail, they would abide by whatever terms the court impose. They will undertake that they would not tamper the prosecution evidence. They will also appear either before the police or before the court whenever they are so required. For these reasons learned Counsel for the petitioners submits that the petitioners be released on bail.
( 7 ) WHEREAS Sri Jadhav, learned High Court Government Pleader submits that petitioners are not entitled for bail because offences alleged are all very serious in nature.
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