ORAL ORDER

This petition is filed under Section 439 of Criminal Procedure Code, 1973 (‘Cr.PC’ for short) for grant of regular bail in Crime no.129/2024 by Bhatkal Town Police Station for offences punishable under Sections 8 (c) and 20 (b) (ii) (A) of Narcotic Drugs Psychotropic Substances Act, 1985 (‘NDPS Act’

for short).

2. Sri Maqboolahmed M. Patil, learned counsel for petitioner (accused no.3) submitted as per prosecution case, at about 04.00 p.m. on 10.11.2024, complainant - Police Sub- Inspector of Bhatkal Town Police Station received credible information that accused no.1 to 4 were transporting narcotic substances for illegal sale. At Tenginagundi cross on National Highway-66, Hyundai Accent Car no.KA-51/AB-8802 was intercepted. On search, they found narcotic substances weighing 9 Kgs 170 grams of ganja without any permission, constituting offences punishable under Sections 8 (c) and 20 (b) (ii) (A) of NDPS Act. A complaint was registered. While accused no.1 to 3 were arrested, accused no.4 escaped.

3. It was submitted, petitioner was innocent and was falsely implicated. He was merely driving Car as per instructions of other accused. He had no knowledge about ganja being transported in Car and even as per prosecution records recovery was at instance of accused no.1. It was submitted, FIR does not mention about recovery of ganja from his possession. It was submitted though FIR mentioned total quantity recovered as 9 Kgs. and 170 grams, exact quantity of narcotic substance was not specified.

4. It was further submitted, provisions of NDPS Act require presence of Gazetted Officer at time of search and seizure. Though, failure to comply with requirement was apparent, prosecution claimed that accused had waived such requirement, which was required to be established by them during trial.

5. It was submitted, petitioner was arrested on

10.11.2022. Since then he was in judicial custody. It was submitted, petitioner was sole bread earner of family having aged parents. It was submitted, lack of any criminal antecedents also fortified his claim of innocence and prayed for grant of bail on any conditions, which he would abide.

6. Smt.Girija S Hiremath, learned HCGP for respondent opposed petition. It was submitted, on 10.11.2024 based on credible information that accused were travelling in car no.KA-51/AB-8802, Police had found said vehicle and based on search of same it was found that petitioner along with other three were travelling in said vehicle and possessed sum of 9 kg 170 grams of narcotic substance (ganja). It was submitted, accused had in writing, waived requirement of conducting search and seizure in presence of Gazetted Officer in writing. Therefore, contention about non-compliance with said requirement, was untenable.

7. It was submitted, since investigation was in progress and at inception stage, prayed for denying bail. It was submitted seized material was sent to FSL for test report and until receipt, contention based on no quantity of narcotic substance was without merit. It was submitted, material collected during investigation would prima facie substantiate commission of offences alleged and until completion of investigation, petitioner could not claim to be innocent. It was further submitted, fact that accused no.1 was involved in similar offences earlier substantiated possibility of accused committing same offence if released on bail. On above grounds sought rejection of bail.

8. Heard learned counsel and perused available material.

9. From above, point that arises for consideration is:

“Whether petitioner is entitled for regular bail with conditions?”

10. Point for consideration is answered in negative following reasons.

11. From above, it is seen petitioner - accused no.3 is seeking for grant of regular bail on ground that he is innocent and falsely implicated, merely on ground that he was driver of car in which narcotic substance was allegedly recovered. It is contended, alleged recovery of 9 Kgs 170 grams of Ganja was a