2020 Supreme(Kar) 716

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
P.S. Dinesh Kumar, J.
Shivaraj Urs - Appellant
Versus
Union Of India Narcotic Control Bureau Bangalore Zonal Unit Bangalore - Respondent
Criminal Petition No. 2566 of 2020
Decided On : 09-07-2020

Headnote:

NDPS Act - Section 36A(1)(d) - Excise Act - Section 54 – Criminal Procedure Code - Section 167(2) – Anticipatory bail - No jurisdiction - Imprisonment and fine - Whether successive bail petitions are maintainable - Whether plea of illegality during search entitles petitioner for grant of bail - Whether petitioner is entitled for bail on ground of parity - Whether authorization given Superintendent NCB Bangalore on May is in accordance with law - Whether he was aware that drugs were being smuggled on Ship or not - Petitioner had moved his first bail application numbered as Criminal Petition prior to Narcotics Control Bureau filing its complaint before Special Judge - It was dismissed by this Court on October - Petitioner moved his second application in Criminal Petition - In said petition he restricted his ground only to Section 167(2) Criminal Procedure Code - Said petition was also dismissed on May - This is third petition - An order passed on a bail application is akin to an order passed on an inter-locater application - Therefore an unsuccessful petitioner can move Court in succession should there be change in circumstances - Petitioner had moved this Court for first time whilst investigation was in progress – Now investigation is complete and NCB has filed its complaint before designated Court - Filing of complaint after investigation is akin to filing a charge-sheet under Section 173 Criminal Procedure Code - Therefore petitioners custody is not required for purpose of investigation – Held, That he is not likely to commit any offence while on bail are satisfied - High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering release of respondent accused on bail - Instead of attempting to take a holistic view of harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs court should implement law in spirit with which Parliament after due deliberation has amended - Main ground on which this bail application is moved is that authorization given under Sub-Section (2) of Section 41 of NDPS Act by this Superintendent Intelligence Officer to conduct search and seizure is not issued in ordinary course of official business but appears to be a created document – Thus main ground that entire search and seizure operation is illegal and it vitiates trial and hence petitioner is entitled to be released on bail is accepted it amounts to pre-judging issue with regard to validity of authorization before trial - On contrary panchanama contains signature of Superintendent also – Therefore presumption in law that official acts have been regularly performed as held must weigh in favor of prosecution - Viewed from this angle presence of Superintendent at time of search and seizure would not vitiate trial as held - It was argued by learned Senior Advocate that accused No. 1 and 3 have been granted bail - Therefore petitioner is also entitled for bail on ground of parity - While considering a similar situation where bail was granted to other accused Honble Supreme Court of India - Submission made by learned counsel for respondents that in Crime bail has been granted to the other accused persons and no steps have been taken by prosecution to challenge grant of post-arrest bail to other accused persons is of no consequence for reason that consideration prevailed upon Court to grant bail to other accused persons will not absolve act of accused respondent from rigor of Section 37 of NDPS Act - It is relevant to record that it is alleged in complaint that petitioner herein handed over a bag containing contraband to accused No.1 - This Court while allowing bail petition of Accused No.1 has held - In other words petitioner was acting as a carrier for the seized material which was transporting in collusion with accused Nos. 2 and 3 - So far as accused No.3 is concerned this Court while considering his bail petition has recorded that material seized from his possession was not - Thus there is a classic difference between case of petitioner and accused No. 1 and 3 - Argued one another ground with regard to Section 67 of NDPS Act - He urged that said issue has been referred to a larger Bench - Court have gone through statement made by appellant under Section 67 of NDPS Act - Without going into question as this matter has been referred to a larger bench court are for purpose of this case taking the statement into consideration even though appellant has resoled from same - While rejecting petitioners first bail application this Court has recorded elaborate reasons from paragraphs of said order as to why satisfaction of Court cannot be recorded under Section 37 of NDPS Act - This is third bail petition - It can be considered only if there are any change in circumstances - What is mainly argued is legal infirmity with regard to authorization and search and seizure operation - As recorded hereinabove authorization was placed on record by prosecution in Criminal Petition and considered by this Court in paragraph of said order – Therefore firstly there is no change in circumstance as far as petitioner is concerned except that complaint has been filed by NCB before learned Trial Judge - Secondly grounds raised in this petition are all matters of fact and require to be proved during trial - If any finding is recorded with regard to legal infirmities pointed out by learned Senior Advocate for petitioner it would amount to pre-judging issue – Petition dismissed