The court emphasized the importance of awaiting the FSL report to determine if the seized substance falls within the NDPS act definition and highlighted the societal menace of selling ganja in public places. The court also referred to the principle of parity in bail decisions and the need to consider the totality of circumstances before granting bail.

JUDGMENT

H.P. Sandesh, J. - This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioners in Special Case No.152/2021, Crime No.21/2021 of Chikkamagaluru CEN Crime Police Station, Chikkamagaluru, for the offences punishable under Sections 20(b)(ii)(c) and 29 of the Narcotic Drugs and Psychotropic Substances act, 1985 ('the NDPS act' for short).

2. Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent/ State.

3. The factual matrix of the case is that ganja, weighing 30 Kgs., were seized at the instance of these petitioners, who were keeping the ganja in the ape Goods auto and selling the same to the public and students. after seizure of the same, a case is registered, investigated the matter and filed the charge-sheet for the offences punishable under Sections 20(b)(ii)(c) and 29 of the NDPS act.

4. The learned counsel appearing for the petitioners would vehemently contend that accused No.1 had already been enlarged on bail and these petitioners are accused Nos.2 to 5 and they are similarly placed. Further, the learned counsel also vehemently contends that the ganja seized is not within the meaning of definition of the act and these petitioners are in the custody from the last 8 months. Hence, they may be enlarged on bail.

5. Per contra, the learned High Court Government Pleader appearing for the State would submit that the ganja seized quantity is a commercial quantity i.e., 30 kgs. apart from that, accused No.2 is a habitual offender and against him Crime No.37/2020 and Crime No.41/2020, are registered under the NDPS act. accused No.3 is also a habitual offender and he is also an accused in Crime No.24/2020 for the offences under the NDPS act. The learned High Court Government Pleader appearing for the State also contend that the ganja seized when they were keeping and selling the same to the general public and FSL report was awaited. With regard to the contention of the petitioners, unless the FSL report is received, whether it is ganja as defined under the NDPS act or not, it is not a fit case to exercise the powers under Section 439 of Cr.P.C. The learned High Court Government Pleader appearing for the State also would submit the order passed by this Court in Crl.P.No.4774/2021 cannot be a precedent to invoke the parity in a heinous offence i.e., ganja of 30 kgs., was seized.

6. Having heard the respective counsel, the ganja was seized from the petitioners along with accused No.1 when they were keeping the same in ape Goods auto and selling the ganja illegally in front of Mugthihalli Kere, Mugthihalli Village and the quantity of ganja seized is 30 Kgs, which is a commercial quantity. Now, the very contention of the learned counsel for the petitioners is that the said ganja seized is not under the definition of the NDPS act and these petitioners are in the custody from the last 8 months.

7. Having taken note of the quantity of ganja and the very contention of the same is not defined under the NDPS act, cannot be accepted since the report is awaited. apart from that, the bail granted in favour of accused No.1 in Crl.P.No.4774/2021 dated 02.08.2021, this Court in the very beginning of the order observed that the materials placed before the Court discloses the strong prima facie evidence against the present petitioners and while exercising the discretion came to the conclusion that accused No.6 is still absconding cannot be a ground to detain the petitioners in the custody but no reasons are assigned and cannot be treated as precedent and will not came to the aid of the petitioners.

8. When such being the factual aspects of the case, the ground of parity cannot be invoked against the petitioners herein. The apex Court in the case of Ramesh Bhavan Rathod V. Vishanbhai Hirabhai Makwana (Koli) and another reported in (2021) 6 SCC 230, dealing with the case of parity held that bail on ground of parity with co-accused manner in which to be dete