HYDER ALI @ GADI HYDER v. STATE OF KARNATAKA

(BY SRI CHANNAPPA ERAPPA, HCGP) Digitally signed by NANDINI MS Location: High Court of Karnataka …PETITIONERS …RESPONDENT - 2 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024 THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNNS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.CASE NO.132/2023 OF KONAJE P.S. FOR THE OFFENCE P/U/S 8(c),20(b)(ii)(c) OF NDPS ACT PENDING ON THE FILE OF THE PRL.SESSIONS AND SPL.JUDGE D.K., MANGALORE. IN CRL.P NO.7522/2024: BETWEEN: HYDER ALI @ GADI HYDER S/O LATE ALI KUTTI AGED ABOUT 40 YEARS R/AT KHALEEL MANZIL NEAR GLP SCHOOL MAA UDYAVARA VILLAGE MANJESHWAR TALUK KASARGOD DISTRICT KERALA STATE - 574 243. …PETITIOENR (BY SRI B. LETHIF, ADV.) AND: STATE OF KARNATAKA BY KONAJE POLICE STATION MANGALORE, D.K. DISTRICT REP. BY SPP, HIGH COURT BUILDING BANGALORE - 560 001. …RESPONDENT (BY SRI CHANNAPPA ERAPPA, HCGP) THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO ENLARGE THE PETITIONER ON REGULAR BAIL IN SPL.C.NO.132/2023 (CR.NO.11/2023) OF KONAJE P.S., MANGALORE D.K., DISTRICT FOR THE OFFENCE P/U/S 8(c),20(b)(ii)(C) OF NDPS ACT, PENDING BEFORE PRL.DISTRICT AND SESSION JUDGE, D.K. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024 CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY ORAL ORDER

Accused Nos.3, 4 and 5 in Spl.C.No.132/2023 pending before the Court of Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.11/2023 registered by Konaje Police Station, Mangaluru City, for the offences punishable under Sections 8(c), 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 read with Section 34 of IPC, are before this Court in these two petitions filed under Section 439 of Cr.P.C. seeking regular bail.

Heard the learned counsel for the parties.

FIR in Crime No.11/2022 was registered by Konaje Police Station, Mangaluru City, for the aforesaid offences against Aboobakkar Siddiq alias Harees and three others on the basis of the first information dated 31.01.2023 received from Sharanappa Bhandari, Police Officer attached to Konaje Police Station, Mangaluru City. Petitioners herein, who were arraigned as accused Nos.1 to 3 in the FIR were apprehended by the - 4 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024 police and produced before the jurisdictional Magistrate on

31.01.2023 and remanded to judicial custody. Investigation in the case is complete and charge sheet has been filed as against six accused persons and the petitioners herein are arraigned as accused Nos.3 to 5 in the charge sheet. Bail application filed by before jurisdictional Sessions Court Spl.C.No.132/2023 was rejected on 29.11.2023. Therefore, they are before this Court.

Learned counsel for the petitioners submit that petitioners do not have any criminal antecedents of similar nature. They are in custody for the last nearly 20 months. There is no compliance of requirement of Sections 42 and 50 of the NDPS Act in the present case. They submit that though the inventory of the seized contraband article was certified by the jurisdictional Magistrate on 04.02.2023 itself, the sample of the contraband article seized was forwarded belatedly to the Forensic Science Laboratory and the same was received by the Forensic Science Laboratory only on 20.02.2023. Accordingly, they pray to allow the petitions. - 5 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024

Per contra, learned HCGP has opposed the petitions. He submits that petitioners were found in the possession of 111 kgs 157 grams of contraband article ganja. FSL report supports the case of the prosecution. Accused No.4 is involved in another criminal case in Crime No.14/2024 registered for the offences punishable under Sections 424 and 511 of IPC. Accordingly, he prays to dismiss the petitions.

The material available on record would go to show that on receipt of credible information at about 02.00 p.m. on

31.01.2023, the first informant after obtaining necessary permission from his higher officers had conducted a raid along with staff and panchas and had intercepted the vehicle bearing registration No.KA21M4973 in which the petitioners were traveling. From the said vehicle, contraband article ganja totally weighing 111 kgs and 157 grams was seized and subjected to panchanama. Thereafter, the apprehended accused and the seized contraband article were brought to the police station and FIR was registered in Crime No.11/2023. Though in the first information, it is mentioned that credible information was received by the first informant at about 02.00 p.m. on

31.01.2023, in the notice issued to the panchas, it is stated - 6 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024 that credible information was received at 12.00 p.m. First informant, who had returned to the police station after receipt of credible information has not reduced the credible information into writing in the prescribed diary before proceeding to conduct the raid. The material on record would also disclose that credible information received was not forwarded to the higher officers as provided under Section 42 of the NDPS Act. Therefore, doubt arises with regard to compliance of Section 42 of the NDPS Act in the present case.

The material on record would go to show that in addition to the contraband article ganja that was seized from the vehicle in which petitioners were traveling, the police have also searched the person of accused No.3 and have recovered mobile phone and cash of Rs.4,000/- from him. Therefore, it also becomes doubtful whether there was compliance of requirement of Section 50 of the NDPS Act in the present case. The seized contraband article was produced by investigation officer before the jurisdiction Magistrate for the purpose of certifying the inventory and sample of the contraband article was also drawn before the jurisdictional magistrate on 04.02.2023 itself. However, the sample has - 7 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024 reached the FSL only on 20.02.2023, which is after the period of more than 15 days from the date inventory was certified and the sample was drawn before the Magistrate. Undisputedly, petitioners do not have any criminal antecedents of similar nature. Accused No.4 is said to have criminal antecedent and is said to be involved in Crime No.14/2024 registered for the offences punishable under Sections 424 and 511 of IPC. However, even accused No.4 is not involved in any criminal case registered under the provisions of the NDPS Act. Petitioners herein are in custody from 31.01.2023. Case before the Trial Court is still at the stage of hearing before charge. Prosecution has cited in all 42 witnesses in the present case. Though petitioners are in custody for the last nearly 20 months, there is absolutely no progress in the trial.

In the case of Chitta Biswas Alias Subhas vs. State of West Bengal reported in 2020 SCC OnLine SC 1536, the Hon'ble Supreme Court taking into consideration that the accused was in custody for a period of one year seven months and there was no sufficient progress in trial, without expressing any opinion on merits and demerits of the case, has granted regular bail to the accused. In the case of Nitish Adhikary - 8 - NC: 2024:KHC:34552 CRL.P No. 8570 of 2024 C/W CRL.P No. 7522 of 2024 alias Bapan vs. State of West Bengal reported in 2022 SCC OnLine SC 2068 in a case where charge sheet was filed for the offences punishable under Sections 21(c) and 37 of the NDPS Act and accused was in custody for a period of one year seven months, the Hon'ble Supreme Court has granted regular bail on the ground that trial is still in the preliminary stage, as only one witness was examined.

Considering all the aforesaid aspects of the matter, rigour under Section 37(1)(b) of the NDPS Act cannot be made strictly applicable to the petitioners, who do not have any criminal antecedents of similar nature. Under the circumstances, I am of the opinion that the prayer made by them for grant of regular bail is required to be answered affirmatively. Accordingly, the following order:-