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2025 Supreme(Online)(Kar) 12973
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S VISHWAJITH SHETTY, J
MR. RIYAZ KHAN @RIYAZ PASHA – Appellant
Versus
STATE BY K R NAGARA POLICE – Respondent
CRL.P No. 7293 of 2025
For the Appellant: SRI. N KUMAR
For the Respondents: SRI.RANGASWAMY R.
Non-compliance with statutory search requirements invalidates seizure, allowing anticipatory bail.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)
(B), 41, 42, and 37(1)(b) - Anticipatory bail application - Petitioner accused of possessing contraband - Non-compliance with statutory requirements for search and seizure - Petitioner has no criminal antecedents and cooperates with police - Rigor of Section 37(1)(b) not applicable due to quantity of contraband. (Paras 6, 8, 9)
(B) Criminal Procedure Code, 1973 - Section 438 - Anticipatory bail - Conditions for grant of bail outlined - Petitioner directed to appear before the Investigation Officer and cooperate with investigation. (Paras 8, 9)
Facts of the case:
The petitioner apprehended arrest for alleged possession of 6 kg 775 grams of Ganja, with no prior criminal record and cooperation with the investigation.
Findings of Court:
The petitioner has made out a case for anticipatory bail due to non-compliance with statutory provisions during the seizure process.
Issues: The main issue was the compliance with the provisions of the NDPS Act during the search and seizure process and the applicability of Section 37(1)(b).
Ratio Decidendi: The court ruled that the non-compliance with statutory requirements during the search invalidates the seizure, allowing for anticipatory bail.
Result: The Criminal Petition is allowed.
| Table of Content |
|---|
| 1. possession of contraband without compliance leads to invalid seizure. (Para 3 , 5) |
| 2. statutory requirements for search must be followed to validate evidence. (Para 6 , 7) |
| 3. anticipatory bail granted due to non-compliance with search laws. (Para 8) |
| 4. conditions for bail outlined to ensure cooperation with investigation. (Para 9) |
ORAL ORDER
Accused in Crime No.153/2025 registered by K.R.Nagar Police Station, Mysore District, for the offences punishable under Section 20(b) (ii) (B), 8C of Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short Act, 1985), is before this Court under section 438 of Cr.P.C. and under Section 482 of BNS, 2023, seeking anticipatory bail.
2. Heard the learned counsel for the parties.
3. F.I.R. in Crime No.153/2025 was registered by K.R.Nagar Police Station, Mysore District, against the petitioner herein for the aforesaid offences on the basis of first information dated 01.04.2025 received from Raghu N, Police Officer attached to the K.R.Nagar Police Station, Mysore District.
4. Apprehending arrest petitioner had filed Crl.Misc.No.592/2025 before the jurisdictional Sessions Court which was rejected on 28.04.2025. Therefore, he is before this Court.
5. FIR in the present case was registered based on the credible information received by the first informant on 01.04.2025, that petitioner had kept about 6 to 7 kgs. of contraband article allegedly Ganja in his Goods Auto Rickshaw bearing registration No.KA-45-3909 for the purpose of sale to the public. On receipt of such information after registering FIR against the petitioner, a raid was allegedly conducted on 01.04.2025 and from the aforesaid auto rickshaw which was parked in front of the petitioner's house contraband article allegedly Ganja totally weighing 6 kg 775 grams was recovered and subjected to panchanama. Petitioner who was allegedly present near the aforesaid goods auto rickshaw when the police came near his house, had managed to escape.
6. Perusal of the recovery mahazar would go to show that the raid was conducted on the night of 01.04.2025 at about 11.30 p.m. and the recovery mahazar was prepared on the intervening night of 01.04.2025 and 02.04.2025 between 11.30 p.m. to 2.00 a.m. Since the raid was conducted after the sunset, compliance of Section 41 or Section 42 of the Act, 1985, becomes necessary in the present case. Seizure is from a conveyance and therefore compliance of Section 41 of the Act, 1985 becomes necessary. In the event the police Officer is not in a position to comply the requirement of Section 41 of the Act 1985 by obtaining necessary search warrant from the jurisdictional Magistrate, he is required to record the reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of the offender and thereafter search any conveyance or building.
7. In the case on hand, the police Officer has neither obtained any search warrant or authorization from the jurisdictional Magistrate in compliance of Section 41 nor has he recorded the reason to believe in compliance pf the proviso to Section 42 of the Act, 1985.
8. Undisputedly, the petitioner has no other criminal antecedents and he has undertaken to cooperate with the Police for the purpose of investigation of the case. The seized contraband article is of intermediate quantity. Therefore, the rigor under Section 37(1)(b) of the Act, 1985, cannot be made applicable as against the petitioner herein. Under the circumstances, I am of the opinion that petitioner has made out a case for grant of anticipatory bail.
9. Accordingly, the following.
ORDER
The Criminal Petition is allowed.
The Respondent - Police or any other police in the State of Karnataka are directed to release the petitioner in Crime No.153/2025 registered by K.R.Nagar Police Station, Mysore District, for the offences punishable under Section 20(b) (ii) (B), 8C of NDPS Act, 1985, subject to the following conditi
