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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 06^TH DAY OF SEPTEMBER, 2021

BEFORE

THE HON9BLE MRS.JUSTICE M.G.UMA

CRIMINAL PETITION NO.5929 OF 2021

C/W

CRIMINAL PETITION NO.769 OF 2021

IN CRL.P.NO.5929/2021

BETWEEN :

ASHLESH A.

S/O ASHOKAN,

AGED ABOUT 33 YEARS,

OCC: DRIVER

R/AT GANESHA NAGARA

JAPPINAMOGARU,

MANGALURU - 575 007

& PETITIONER

(BY SRI. K. SHASHIKIRAN SHETTY, SERNIOR COUNSEL

ALONG WITH SRI. DINESH KUMAR RAO K., ADVOCATE)

AND :

THE STATE BY

ECONOMIC AND NARCOTIC CRIME POLICE STATION,

MANGALURU CITY,

D.K. MANGALURU - 575 075

& RESPONDENT

(BY SRI. K.S.ABHIJITH, HCGP)

THIS CRIMINAL PETITION IS FILED UNDER SECTION

439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON

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BAIL IN SPL.C.NO.103/2021 IN CRIME NO.19/2020 OF

ECONOMIC

AND

NARCOTIC

CRIME

POLICE

STATION,

MANGALURU CITY, D.K.DISTRICT FOR THE OFFENCE P/U/S

21 AND 21(C) OF N.D.P.S. ACT.

IN CRL.P.NO.769/2021

BETWEEN :

SAHIL MOHAMMED

S/O LATE SAIPUDDIN,

AGED ABOUT 19 YEARS,

OCCUPATION - STUDENT

R/AT SAWRABA, NEAR 1ST RAILWAY,

BRIDGE, MARNAMIKATTE,

MANGALURU - 575 007.

& PETITIONER

(BY SRI. K. SHASHIKIRAN SHETTY, SERNIOR COUNSEL

ALONG WITH SRI. DINESH KUMAR RAO K., ADVOCATE)

AND :

THE STATE BY

ECONOMIC AND NARCOTIC CRIME POLICE STATION,

PANDESHWAR,

MANGALURU - 575 075

& RESPONDENT

(BY SRI. K.S.ABHIJITH, HCGP)

THIS CRIMINAL PETITION IS FILED UNDER SECTION

439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON

BAIL IN CRIME NO.19/2020 OF ECONOMIC AND NARCOTIC

CRIME POLICE STATION, MANGALURU CITY, D.K. FOR THE

OFFENCE P/U/S 21 AND 21(C) OF N.D.P.S. ACT.

THESE CRIMINAL PETITIONS ARE COMING ON FOR

ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

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COMMON ORDER

The petitioners - accused Nos.1 and 2 are before this

Court seeking grant of bail under Section 439 of Cr.P.C. in

Crime No.19/2020 of E and N Crime Police Station, registered

for the offences punishable under Sections 21 and 21(c) of

the Narcotic Drugs and Psychotropic Substances Act, 1985

(for short 'NDPS Act'), on the basis of the first information

lodged by the informant Mohan.

2.

Heard Sri.K.Shashikiran Shetty, learned Senior

counsel for the petitioners and Sri.K.S.Abhijith, learned

Counsel for the respondent - State. Perused the materials

placed on record.

3.

Learned

senior

counsel

for

the

petitioners

submitted that the petitioner in Crl.P.No.5929/2021 is arrayed

as accused No.1 and the petitioner in Crl.P.No.769/2021 is

arrayed as accused No.2. They are innocent and have not

committed any offence as alleged. They have been falsely

implicated in the matter without any basis. They were

apprehended on 09.08.2020 and since then they are in

judicial custody. The investigation has been completed and

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the charge sheet is also filed. It is alleged that the

commercial quantity of contraband was recovered from the

possession of these petitioners. The personal search of the

petitioners were not conducted in the presence of Gazetted

Officer as required under Section 50 of the NDPS Act. When

the mandatory procedure as contemplated under the Act is

not complied with, there is no possibility of conviction of the

petitioners. The investigation is completed and the charge

sheet came to be filed, without furnishing the FSL report.

However, subsequently, FSL report came to be filed before

the Court. The seizure mahazar relied on by the prosecution

discloses that the contraband said to have been secured from

the personal search of accused Nos.1 and 2 on 09.08.2020,

but the Gazetted Officer Sri. Jagadish signed the same on

10.08.2020. Therefore, it is clear that the Gazetted Officer

was not present when the contraband said to have been was

seized at the instance of accused Nos.1 and 2. Absolutely,

there is no material to connect the petitioners to the offence

in question. The petitioners are not having any criminal

antecedents. Accused No.2 is a student pursuing h