KRISHNACHAND SAHO v. PANCHANANDA SAHO

10.09.2024 DATE OF PRONOUNCEMENT OF THE ORDER : 25.09.2024 CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ CAV ORDER This petition under section 439 of Cr.P.C., is preferred by accused Nos.5 and 6 to enlarge them on bail in Crime No.211/2023 registered at Whitefield Police Station, Bangalore City, now pending on the file of the Court of VIII Additional District and Sessions Judge, Bangalore Rural District, Bengaluru.

Aforementioned case was registered initially against accused Nos.1 to 3 for the offence punishable under section 20(b) of NDPS Act, 1985. - 3 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024

Charge sheet is filed against accused Nos.1 to

Petitioners are arraigned as accused Nos.5 and 6 in the charge sheet.

Complaint is lodged by the PSI, Whitefield Police Station, stating that on 09.07.2023 at about 12.15 p.m., he received a credible information that within the jurisdiction of Whitefield Police Station, near Triveni Bakery, few persons are trying to sell Ganja in an auto rickshaw to the general public. He wrote down the said information in the Station house diary and tipped his higher officers and after taking permission, went to the spot along with his staff and panchas. They apprehended accused Nos.1 to 3 and from their possession 3 kg 200 grams of ganja was seized under a mahazar and an auto rickshaw bearing registration No.KA-03-AG-1641 was also seized.

It is the further case of prosecution that accused No.1 along with accused No.4 used to purchase ganja from Ganjam District in Odisha State and therefore, - 4 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 the police officials went to Ganjam in Odisha State on

21.07.2023 and apprehended the petitioners/accused Nos.5 and 6 who confessed to have stored ganja in plastic bags behind their pan shop. About 70 kgs of ganja concealed in 19 bundles covered in a plastic cover and kept in a water drum was seized under a mahazar.

The learned counsel for appellants contended that the appellants are innocent and they are falsely implicated in this case. He contended that according to prosecution accused No.1 has confessed having purchased ganja from accused No.4 and therefore, police have gone to apprehend the said accused. On the other hand, there is no material to show that the petitioners herein were selling ganja to accused No.1 or other accused persons. He contended that immediately after the arrest and alleged seizure of ganja from the petitioners they were not produced before the nearest Magistrate and jurisdictional Police were also not informed about their arrest. Before proceeding to arrest the petitioners, the - 5 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 local police were not informed and no panchas from the locality was secured. He further contended that though alleged ganja was seized on 21.07.2023, inventory was drawn on 05.09.2023 after an inordinate delay of 45 days and contended that the mandatory provision under Section 41, 42, 50 and 57 of the NDPS Act are not followed in this case. He contended that petitioners have no criminal antecedents, they are ready and willing to offer sufficient surety to ensure their presence before the trial Court. He has therefore, sought to allow the petition.

7. The learned High Court Government Pleader has filed statement of objections. He contended that a commercial quantity of ganja weighing 70 kgs has been seized from the possession of the petitioners in the presence of panch witnesses and the sample collected has been responded positive for cannabis (ganja). He contended that the required procedures are followed while

conducting the seizure mahazar and there is a prima facie case against the petitioners and in view of Section 37 of - 6 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 the NDPS Act, petitioners are not entitled for bail. He contended that the petitioners may abscond and commit similar offence, in the event they are released on bail, as they are the residents of Odisha State. He has therefore, sought to dismiss the petition.

As per prosecution, on a credible information received by the Police, they initially apprehended accused Nos.1 to 3 on 09.07.2023 and from their possession 3 kgs 200 grams of ganja was seized. Thereafter, on the information furnished by accused No.1 that they were purchasing ganja from accused No.4 by name Sandeep, police along with panchas went to Ganjam District in Odisha on 21.07.2023 and arrested the petitioners and seized 70 Kgs of ganja from them.

Accused Nos.1 to 3 have not confessed regarding purchase of ganja from the petitioners. As per the mahazar drawn on 09.07.2023, Accused No.1 confessed to have purchased ganja from accused No.4 by name Sandeep. It is alleged that petitioners namely - 7 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 accused Nos.5 and 6 were selling ganja and therefore, they were apprehended and 70 kgs of ganja kept in an empty water drum behind their pan shop was seized. In the charge sheet it is stated that the information was given by CW.8, head constable attached to Whitefield Police Station, who is said to have acted as a decoy. Admittedly the panchas from the locality were not secured and information regarding alleged seizure of ganja was not immediately reported. The local police were also not informed before proceeding to the spot to arrest the accused.

It is contended by the learned counsel for petitioners that the contraband seized was not identified as ganja by conducting a preliminary test with the help of a test kit in compliance with Section 54 of the NDPS Act and the provision of Section 42 of the NDPS Act was also not followed.

The learned High Court Government Pleader has relied on a decision reported in ‘2000 (9) SCC 549’ in - 8 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 the case of ‘Superintendent Narcotics Control Bureau, Chennai Vs. R.Paulsamy’. He contended that even if the mandatory provisions are not complied, that by itself is not a ground to grant bail.

In the above decision, when the accused was granted bail by the High Court, it was observed that the ground of arrest was not informed to the accused and such fact was not stated either in the mahazar or in the remand report etc., and there was no document to show such a report was sent to the immediate official superior within 48 hours. The Hon’ble Apex Court while setting aside the impugned order, observed that the factual presumption in law can be rebutted only during evidence and not merely saying that no document has been produced during bail stage. Further observed there is no finding recorded in terms of Section 37 of the NDPS Act, which is sine qua non for granting bail to the accused involved in the offence.

In the case on hand, no doubt commercial quantity of ganja is alleged to have been seized from the - 9 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 petitioners on 21.07.2023. There is no material to show that before proceeding to Ganjam District in Odisha State, the Police received any information about possession of ganja by the petitioners. Such information was also not recorded anywhere before proceeding to apprehend the accused. Even though the ganja was alleged to be seized on 21.07.2023, the contraband was produced before the Magistrate and certificate was issued under Section 52(A), (3) of NDPS Act, 1985 on 05.09.2023.

The learned counsel for petitioners has relied on a decision of the Hon’ble Apex Court in the case of ‘Union of India Vs. Mohanlal and another’ reported in ‘2016 (3) SCC 379’ to contend that, no sooner the seizure of any narcotic Drugs and Psychotropic substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest Police Station or the Officer empowered under Section 53 of the Act. The Officer concerned shall then approach the Magistrate with an application under Section 52(A)(ii) of the Act, which - 10 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 shall be allowed by the Magistrate as soon as may be required under Section 52(A)(3) of the Act. He contended that the said procedure has not been followed in the present case.

The learned counsel has also relied on a decision of the Hon’ble High Court of Delhi in ‘Kashif Vs. Narcotics Control Bureau’ (Bail application 253/2023 dd:18.05.2023), para 29 and 30 of the said judgment are extracted hereunder: ’29. In the present case, the application for drawing of sample and certification of seizure memo under Section 52A NDPS was filed on 22.04.2022 i.e., after 51 days the period of last seizure on

02.03.2022.

A period of 51 days, by no stretch of imagination, can be called a reasonable period for filing an application under Section 52A NDPS for drawing the sample. It cannot be that the contraband lying in the custody of the Narcotics Department for 51 days, in their power - 11 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 and possession, is immune from tampering and mischief. Furthermore, no reasons have been furnished by the Respondent for the delay of 51 days for moving an application under Section 52A NDPS.’

Having perused the material on record, this court is of the view that there are reasonable grounds to believe that the petitioners are not guilty of the offence alleged. Prosecution has to establish the charge against them in a full fledged trial. Further, petitioners have no criminal antecedents. No previous cases registered against them, have been brought to the notice of the Court. Hence, apprehension of the prosecution that they may commit similar offence while on bail, is not well founded.

Petitioners are in custody from 21.07.2023. They have undertaken to offer sufficient surety. By imposing necessary conditions, they can be admitted to bail. Hence, the following: - 12 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024 ORDER i. Petition is Allowed. ii. Petitioners/accused Nos.5 and 6 shall be released on bail in Crime No.211/2023 of Whitefield Police Station, pending on the file of the Court of VIII Additional District and Sessions Judge, Bangalore, Rural District, subject to following conditions:

They shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) each, with two sureties for like sum, out of which one shall be a local surety, to the satisfaction of the jurisdictional Court.

2. They shall furnish proof of residential address and shall inform the Investigating Officer/Court, if there is any change in address.

3. They shall not directly or indirectly tamper with the prosecution witnesses.

4. They shall not indulge themselves in committing any offence. - 13 - NC: 2024:KHC:39843 CRL.P No. 4296 of 2024

5. They shall appear before the Trial Court regularly. If the petitioners violate any of the above conditions or fail to appear before the trial Court, unless exempted from appearance on any day, bail granted to them shall be liable to be cancelled. Sd/- (MOHAMMAD NAWAZ) JUDGE HB/- List No.: 1 Sl No.: 1