ORDER :

These petitions have been filed by the petitioners/accused Nos. 1 & 2 under Section 439 of Code of Criminal Procedure praying to release them on bail in Crime No. 173/2018 for the offence punishable under Sections 8(c), 21(b), 22(b) of N.D.P.S. Act, Section 14 of Foreigners Act, 1946, Section 5 of Registration of Foreigners Act, 1939 Section 12 of Passport Act, 1967 registered by Kothanur Police Station.

2. I have heard the learned counsel for the petitioners and learned High Court Government Pleader for the respondent/State.

3. The genesis of the case of the prosecution is that on 05.09.2018 at about 7.00 p.m., Police Inspector has deputed constables Eresh and Shekhappa Nayak to trace culprits in old pending cases. When they were on rounds they met an informant and he told that near K. Narayanapura Christ Jayanthi College, a person along with another selling M.D.M.A. and Charas drugs and distributing in small packets. Immediately, the informant and the two police constables went near the college and noticed the accused giving Narcotic Drugs in packets and collecting money from the customers. Thereafter, they returned to the police station and lodged a report and went and collected two Panchas and reached the place at about 7.25 p.m. There they found accused Nos. 1 and 2 and were taken to custody. When the accused persons were asked that what they were doing, they said that they are selling M.D.M.A. and Charas. In the presence of Assistant Commissioner of Police the said accused persons were got searched and found one black color bag containing 25 gm. of Charas and 15 gm. of M.D.M.A. and out of accused1 pant pocket found one white color Samsung Mobile phone, one Micromax Basic mobile phone and cash of Rs.2,500/- which were seized by drawing Mahazar. Subsequently, accused No.2 has also got searched and found 11 gm. of M.D.M.A. and 8 L.S.D paper piece, one touch screen mobile phone and cash of Rs.3,000/- and they were seized under the same Mahazar. A case was registered in Crime No.173/2018.

4. It is the submission of the learned counsel for the petitioners-accused Nos.1&2 that there is clear violation of Section 42 of NDPS Act. As per Section 42 it indicates that the search has to be made immediately after receiving the information. When the said information has got immediately they did not take any action and the case has not been filed. Further, the search has been made not before the Gazetted Officer. They further submitted that Investigating Officer asked the accused1, whether he intend to be searched before the Gazetted Officer, he told that the search has to be made before the Gazetted Officer or the Magistrate. But, in spite of that the search has been made in the presence of Assistance Commissioner of Police. They further submitted that quantitative and qualitative reports have not been produced within 15 days and 30 days as contemplated in the law. They also submitted even there is a violation of provisions of Sections 52 and 56 of NDPS Act. The quantity which has been seized from each of the accused persons is less than the commercial quantity. They further submitted that the petitioneraccused1 is suffering from HIV decease and he requires continuous treatment and if he is continued in the jail, it may spread to other accused persons. They further submitted that the petitioneraccused1 in earlier two cases got acquitted and no other cases are pending. They submitted that by imposing stringent conditions, petitioners may be granted bail and they are ready to abide by any conditions and ready to offer sureties. On these grounds, the learned counsel for the petitioners prayed to allow the petition and to release the petitioners on bail.

5. Per contra, the learned High Court Government Pleader argued and submitted that petitioners-accused are habitual offenders and accused No.1 is involved in two more cases and he is also an accused in Crime No. 253/2012 at Ramamurthy Nagar Police Station, Crime No. 90/2014 at Hennur Po