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2023 Supreme(Kar) 12
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Mr. Sayyad Mohammad @ Nasim, S/o. Abdul Aziz - Petitioner
Versus
State of Karnataka, By Economic and Narcotic Crime, Police Station, Represented by SPP - Respondent
Criminal Petition No. 10123 of 2022
Decided On : 11-01-2023
For the Petitioner: Sri S. Balakrishnan.
For the Respondent: Sri H.S. Shankar, HCGP.
Possession of contraband must be determined based on facts and circumstances; compliance with statutory procedures is crucial in evaluating bail applications.
Headnote:BAIL - Successive Bail Petition - Indian Arms Act, 1959 (Section 25 and 3), Narcotic Drugs & Psychotropic Substances Act, 1985 (Sections 8(c) and 20(B)(II)(b)) - The court discussed the gravity of the offence and possession of commercial quantity of ganja. It referred to the judgment in UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW VS. MD. NAWAZ KHAN (2021) 10 SCC 100, emphasizing that possession of contraband must be gleaned from the facts and circumstances of a case. The court also highlighted that compliance with Section 42 of the NDPS Act is a question of fact and observed that the circumstances are crucial in assessing bail applications.
Fact of the Case:
The petitioner sought regular bail for offences under the Indian Arms Act, 1959 and the Narcotic Drugs & Psychotropic Substances Act, 1985.Finding of the Court:
The court rejected the bail petition based on the gravity of the offence, possession of commercial quantity of ganja, and criminal antecedents.Issues:
Whether there were grounds to grant bail in a successive bail petition.Ratio Decidendi:
The court emphasized that possession of contraband must be assessed based on facts and circumstances. Compliance with statutory procedures is crucial in evaluating bail applications.Final Decision:
The bail petition was rejected.ORDER :
This is a successive bail petition filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.30/2021 of E and N Crime Police Station, Mangaluru COP, Mangaluru City, for the offence punishable under Sections 25 and 3 of Indian Arms Act, 1959 and Sections 8(c) and 20(B)(II)(b) of Narcotic Drugs & Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short).
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. This Court earlier rejected the bail petition of this petitioner in Crl.P.No.3484/2022 on 07.06.2022 and while rejecting the bail petition, liberty was given to the petitioner to approach this Court after receipt of FSL report. Now, the FSL report is received and hence, the petitioner has approached this Court by filing this petition.
4. Learned counsel for the petitioner would vehemently contend that this petitioner is in custody from the last 1 year, 7 months and this petitioner has been arraigned as accused No.5. The accusation made against this petitioner is that he was also in the car in which 60 kilograms of ganja was transported and this petitioner is not connected with the seizure of 217.740 kilograms of ganja from the lorry. The case of the prosecution is also that accused No.1 procured the ganja and sold the same to accused Nos.2 and 4 and this petitioner was in the car and accused No.3 was driving the car and the same was not in the conscious possession of this petitioner and the same was in the dicky. This petitioner is not the owner of car and lorry. Hence, he may be enlarged on bail.
5. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that total ganja seized is 277.740 kilograms and about 60 kilograms of ganja was seized from this petitioner and accused No.3, who were transporting the ganja in the car and the said car was followed by a lorry which was provided to accused Nos.2 to 4 by accused No.6. He also submitted that, this Court also considered the merits of the case while rejecting the earlier bail petition and liberty was given to the petitioner to approach this Court after receipt of FSL report and FSL report is very clear that the seized articles are tested positive as ganja and hence, no grounds are made out in a successive bail petition to enlarge the petitioner on bail. He would further submit that this petitioner is also having criminal antecedents and Crime No.153/2020 is registered for the offence under Sections 8(a)(c) and 20(b) of NDPS Act and apart from that, Crime No.173/2021 is registered for the offence under Sections 395 and 364(a) of IPC. Hence, the petitioner is not entitled for bail.
6. Having heard the learned counsel for the petitioner and also learned High Court Government Pleader appearing for the respondent-State, admittedly, this is a successive bail petition and the facts also disclose that this petitioner was in the car bearing No.KA-03-MK-0649 along with accused No.3 in which they were transporting 60 kilograms of ganja and accused Nos.2 and 4 were in the Eicher Insulator lorry wherein, 217.740 kilograms of ganja was seized and both the car as well as the lorry were seized at the spot. When such being the case, the Court has to take note of the gravity of the offence and possession of commercial quantity of ganja.
7. Learned counsel appearing for the petitioner also relied upon the judgment of the Apex Court in UNION OF INDIA VS. BAL MUKUND & ORS. in CRIMINAL APPEAL NO.1397 OF 2007 dated 31.03.2009 and brought to notice of this Court Para No.10, the manner in which a sample of narcotic drug would have to be taken and contend that seizure itself is not proper.
8. This Court would like to rely upon the judgment of the Apex Court in UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW VS. MD. NAWAZ KHAN reported in (2021) 10 SCC 100, wherein the Apex Court discussed with regard to the finding that mere absence of p
