SHISHIR DEVADIGA v. THE STATE BY ULLAL POLICE

(BY SRI K. NAGESHWARAPPA, HCGP) …RESPONDENT PETITIONER ON THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO ENLARGE IN IN THE CR.NO.200/2023 OF ULLAL POLICE D.K. DISTRICT FOR THE OFFENCE P/U/S 8(c),21,21(c) OF NDPS ACT AND SEC.4,25(1B) (b) OF ARMS ACT R/W SEC.34 OF IPC PENDING BEFORE THE PRL.DISTRICT AND SESSIONS JUDGE D.K. MANGALURU. SPL.C.C.NO.99/2024 BAIL THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY Digitally signed by NANDINI MS Location: High Court of Karnataka - 2 - NC: 2024:KHC:34834 CRL.P No. 7872 of 2024 ORAL ORDER

Accused No.1 in Spl.CC.No.99/2024 pending before the Court of Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.200/2023 registered by Ullal Police Station, Mangaluru City, for the offences punishable under Sections 8(c), 21, 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 and Sections 4 and 25-1(B) of the Arms Act, 1959 read with Section 34 of IPC, is before this Court under Section 439 of Cr.P.C.

Heard the learned counsel for the parties.

FIR in Crime No.200/2023 was registered by Ullal Police Station, Dakshina Kannada, Mangaluru, for the aforesaid offences against the petitioner herein and others on the basis of the first information dated 04.12.2023 received from Puneeth Gaonkar, Sub-Inspector of Police, attached to Anti Drug Team, ACP Office, South Subdivision, Kallapu, Mangaluru City. Petitioner, who was arrested in the said case on 04.12.2023 was subsequently produced before the jurisdictional Special Court and remanded to judicial custody. Investigation in the case is complete and charge sheet has been filed for the - 3 - NC: 2024:KHC:34834 CRL.P No. 7872 of 2024 aforesaid offences against three persons. Petitioner is arraigned as accused No.1 in the charge sheet. Bail application filed by the petitioner before the Trial Court in Crime No.200/2023 was rejected on 15.06.2024. Therefore, he is before this Court.

Learned counsel for the petitioner submits that the petitioner has no criminal antecedents. He is in custody from

01.12.2023. There is no compliance of requirement of Sections 42 and 50 of the NDPS Act in the present case. He also submits that there is a delay in compliance of the requirement of Section 52A of the NDPS Act.

Per contra, learned HCGP submits that commercial quantity of contraband article has been seized in the present case from the possession of the petitioner. Therefore, in view of Section 37(1)(b) of the NDPS Act, the petition is liable to be rejected.

The first informant allegedly had received credible information on 04.12.2023 when he was in the office of Assistant Commissioner of Police, South Sub-Division, Dakshina Kannada District and based on such information, after obtaining necessary permission from his higher officers, he had - 4 - NC: 2024:KHC:34834 CRL.P No. 7872 of 2024 conducted a raid to the alleged spot along with his staff and independent panchas and had apprehended two persons, who were sitting inside the car bearing registration No.KA19MM7082 and on enquiry, the said two persons had revealed their names as Shishira Devadiga and Shushan L. From the possession of the petitioner, 32.68 grams of contraband article allegedly methamphetamine and 250 grams of LSD stamps was recovered and subjected to panchanama. From the possession of accused No.2, 101.28 grams of methamphetamine was seized and subjected to panchanama. Thereafter, seized contraband article and the apprehended accused were brought to the police station and FIR in Crime No.200/2023 was registered. Investigation in the case is complete and charge sheet has been filed against three accused persons. Undisputedly, petitioner has no criminal antecedents.

A perusal of the material available on record would go to show that the first informant was in the office of Assistant Commissioner of Police, South Sub-Division, Dakshina Kannada District, when he had received credible information about certain persons attempting to sell the contraband article. The first informant who had received credible information had not - 5 - NC: 2024:KHC:34834 CRL.P No. 7872 of 2024 complied with the requirements of Section 42 of the NDPS Act before proceeding to conduct a raid and arrest the accused persons. Credible information received by him was not reduced into writing in the prescribed Register and the same was also not forwarded to his higher officers. In addition to the same, since contraband article has been seized from the person of the petitioner, compliance of requirement of Section 50 of the NDPS Act becomes mandatory. Even Section 50 of the NDPS Act appears to have not been complied in the present case before the contraband article was recovered from the person of accused. The contraband article methamphetamine seized from the petitioner is of intermediate quantity. In the seizure mahazar as well as in the first information, though it is stated that 250 grams of LSD stamps was seized from the possession of the petitioner, exact weight of the contraband article LSD stamps is not mentioned. The weight of the said contraband article is found only in the inventory which is belatedly prepared. Petitioner, who has no criminal antecedents is in custody from 04.12.2023. Considering the aforesaid aspects of the matter, the rigour under Section 37(1)(b) of the NDPS Act cannot be made strictly applicable to the petitioner. The - 6 - NC: 2024:KHC:34834 CRL.P No. 7872 of 2024 prosecution in all has cited 20 charge sheet witnesses in the case and trial in the case is yet to be commenced. Under the circumstances, I am of the opinion that the prayer made by the petitioner for grant of regular bail requires to be answered affirmatively. Accordingly, the following order:-