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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 2^ND DAY OF MARCH, 2023

BEFORE

THE HON’BLE MRS.JUSTICE M.G. UMA

CRIMINAL PETITION NO.12162/2022

BETWEEN:

SYED FAHAD @ FAHAD

S/O SYED IMTIYAZ

AGED ABOUT 24 YEARS

R/AT NO. 06

BORDI LAWN ROAD

FRAZER TOWN

BANGALORE - 560 005

(NOW IN JUDICIAL CUSTODY

CENTRAL PRISON, BANGALORE)

… PETITIONER

(BY SRI: HASHMATH PASHA, SENIOR COUNSEL FOR

SRI: KARIAPPA .N.A. BY H.P. UNIQUE & CO. )

AND:

STATE OF KARNATAKA

BY BANASAWADI POLICE STATION

BANGALORE - 560 043

(REPRESENTED BY LEARNED

STATE PUBLIC PROSECUTOR)

HIGH COURT OF KARNATAKA - 01.

… RESPONDENT

(BY SRI: H.S. SHANKAR, HCGP)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF

CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN

CR.NO.468/2022 OF BANASWADI P.S., BENGALURU CITY FOR THE

OFFENCE PUNISHABLE UNDER SECTIONS 8(C), 22(B) AND (C) OF

NDPS ACT, WHICH IS PENDING ON THE FILE OF THE HONBLE

XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND

SPECIAL JUDGE FOR NDPS CASES, BENGALURU CITY.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR JUDGMENT ON 30.01.2023 COMING ON FOR

PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE

FOLLOWING:

O R D E R

The petitioner-accused No.3 is before this Court seeking

grant of bail under Section 439 of Cr.P.C. in Crime No.468 of

2022 of Banaswadi Police Station, Bengaluru City, pending on

the file of the XXXIII Additional City Civil and Sessions Judge

and Special Judge for NDPS Cases, Bengaluru, registered for

the offences punishable under Sections 8(c), 22(b) and (c) of

Narcotic Drugs and Psychotropic Substances Act (for short

'NDPS Act'), on the basis of the first information lodged by the

informant R Deepak.

2.

Heard

Sri

Hashmath

Pasha,

learned

senior

advocate for Sri N A Kariappa, learned counsel for the

petitioner and Sri H S Shankar, learned High Court

Government Pleader for the respondent -State. Perused the

materials on record.

3.

Learned

senior

advocate

for

the

petitioner

submitted that the petitioner is arrayed as accused No.3. He

is innocent and law abiding citizen. He has not committed any

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offences as alleged. He has been falsely implicated in the

matter without any basis. He was apprehended on

19.10.2022 and since then he is in judicial custody.

4.

Learned senior advocate submitted that CCB said

to have held the raid and recovered contraband from accused

Nos.1 to 3. It is stated that 20 grams of MDMA along with

other drugs said to have been seized from their possession.

But the requirement under Section 50 of NDPS Act was never

complied with. This is the mandatory provision of law and

non-compliance of the same would vitiate the entire seizure.

The petitioner was never taken to the nearest Gazetted

Officer as required under Section 50 of the NDPS Act. But on

the other hand, the Assistant Commissioner of Police (for

short 'ACP'), who was one of the person in the raiding party

has acted as a Gazetted Officer and it is stated that in his

presence the contraband was seized. The petitioner was said

to have been given an option to be searched by CCB Inspector

or by the Magistrate or Gazetted Officer. The ACP again gave

similar option, but finally stated that he is also a Gazetted

Officer and proceeded to search the accused. The whole

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procedure adopted by the Investigating Officer has vitiated

the search and seizure said to have been carried on.

5.

Learned senior advocate placed reliance on the

decisions in State of Rajasthan Vs Parmanand and

another ¹ and Vijaysinh Chandubha Jadeja Vs State of

Gujarat ² to contend that Sections 42 and 50 of NDPS Act are

mandatory to be complied by the Investigating Officer. The

failure to comply would negate the entire seizure of the

narcotic drugs and to contend that the Police Officer who is a

party to the raid cannot act as a Gazetted Officer, who is

required to be an independent person. He also place