VYBHAV KUMAR JAIN v. STATE OF KARNATAKA

BY COTTONPETE POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560001.

2. SRI K C GAUTHAM AGED ABOUT 36 YEARS ASSISTANT COMMISSIONER OF POLICE CENTRAL CRIME BRANCH NARCOTICS SQUAD, BANGALORE COTTONPETE, BANGALORE-560053 Location: High Court of Karnataka …PETITIONER - 2 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023

3. POOJA GANDHI W/O VAIBHAV KUMAR JAIN, AGED ABOUT 31 YEARS R/AT NO. 28, HN LAYOUT, 11TH CROSS, MALLESHWARAM, BANGALORE-560055 ALSO AT FLAT NO.21008 TOWER 2, NIKOO HOMES BHARTHIYA CITY THANISANDRA BANGALORE-560077 (BY SRI. VENKAT SATYANARAYAN A., HCGP FOR R1 & R2, SRI. RAVINDRANATH K., ADV. FOR R3.) …RESPONDENTS THE ORDER DATED THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO SET IN ASIDE SPL.C.C.NO.212/2021 (CR.NO.109/2020 OF COTTONPETE POLICE STATION) BY THE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES AT BANGALORE (CCH-33) IN RESPECT OF APPLICATION FILED BY THE WIFE OF THE PETITIONER / 3RD RESPONDENT U/S 446(3) OF CR.P.C.

25.09.2023 MADE THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This petition is filed by the petitioner under Section 482 of Cr.P.C. seeking to quash the order dated

25.09.2023 passed in C.C.No.212/2021 by the XXXII Addl. City Civil and Sessions Judge and Special Judge for NDPS cases, Bangalore (CCH-33) in respect of application filed - 3 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023 by respondent No.3 i.e. the wife of petitioner under Section 446(3) of Cr.P.C.

2. Heard the learned counsel for the petitioner and learned counsel for respondents.

3. The case of the petitioner is that the case was registered in Spl. C.C.No.212/2021 for the offence punishable under Section 21, 21(C), 27(A), 27(B), 29 of NDPS Act, 1985, Section 201 read with 120B of Indian Penal Code and Section 14, 14(C) of Foreigners Act. When the petitioner was in custody, this Court by order dated 01.02.2021 in Criminal Petition No.5922/2020 has enlarged him on bail by imposing certain conditions and one of the condition was - "petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) with two sureties for likesum to the satisfaction of jurisdictional Court." Accordingly, the petitioner has furnished one solvent surety before the Trial Court. Since he was unable to furnish another surety, he prayed to deposit entire bond - 4 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023 amount of Rs.2,00,000/- as cash surety instead of solvent surety. On the basis of his request, the Trial Court vide order dated 09.02.2021 permitted him to deposit the cash surety of Rs.2,00,000/-. On the very same day, the petitioner deposited the said amount by way of DD through bank account of his wife i.e. respondent No.3 and the petitioner was released on bail. Further, respondent No.3 filed application under Section 446(3) of Cr.P.C. for discharge of surety which was deposited on 09.02.2021 by her on behalf of petitioner instead of solvent surety while the petitioner was in custody. The said amount was arranged by her by pledging golden ornaments to the pawn broker. Therefore, respondent No.3 is entitled to the said amount. Accordingly, the Trial Court passed impugned order by releasing the said amount respondent No.3 which is under challenge.

4. Learned counsel for the petitioner contended that this amount has been transferred to the account of respondent No.3 and the said amount was utilized for - 5 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023 surety purpose. Therefore, release of amount to respondent No.3 does not arise and prays to allow this petition and set aside the order of the Trial Court.

5. Learned counsel for the respondent No.3 submits that when the petitioner was in custody, she borrowed a loan immediately. Therefore, the said amount should be released and further submits that there is matrimonial dispute between the petitioner and respondent No.3 and maintenance amount was not paid by the petitioner. Therefore, respondent No.3 is entitled for the said amount and prays to dismiss the petition.

6. Having heard the learned counsel for petitioner and learned counsel for respondent No.3, when the petitioner was in custody, some of the relative of the petitioner can deposit the amount for furnishing cash surety for release of petitioner on bail as per Section 445 of Cr.P.C. Now, the petitioner is on bail. Learned counsel the petitioner submits this amount of Rs.2,00,000/- transferred from own account of - 6 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023 petitioner in Kotak Mahindra Bank and the same was transferred to respondent No.3 and it was utilized by her. To substantiate his arguments, he relied on the account statement of petitioner of Kotak Mahindra Bank, Sadashivanagar Branch bearing account No.5211852424. It reveals that on 13.02.2021, the amount of Rs.2,00,000/- was transferred to Pooja who is respondent No.3 herein by way of bank transfer bearing No.104417368992. Similarly, the account statement of respondent No.3 in ICICI Bank, Sadashivanagar Branch bearing account No.007801542752 is also produced which reveals that on 15.02.2021, the amount of Rs.2,00,000/- was received by her from Vaibhav Kumar who is the petitioner herein vide ref No. 104417368992 and on the same day, the said amount was transferred to some other account by name Shyam Prasad. On perusal of these statements, it is found that the said amount was received by respondent No.3 from the petitioner and it has been discharged towards loan borrowed by her. When such being the case, it clearly reveals that the amount was - 7 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023 received by respondent No.3 and discharge the said amount towards the loan borrowed by her and it is deemed that she has received amount of Rs.2,00,000/-. This being the scenario, the question of releasing the said amount to respondent No.3 does not arise at all and in fact, the petitioner is in custody. There is a matrimonial dispute between petitioner and respondent No.3 and this could be resolved before appropriate forum by filing petition seeking maintenance. If this being the case, release of the said amount to respondent No.3 does not arise at all and the order under challenge is devoid of merits. As a result, I proceed to pass the following: ORDER i. The criminal petition is allowed. ii. The order dated 25.09.2023 passed in C.C.No.212/2021 by the XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDPS cases, Bangalore (CCH- 33) in respect of application filed by respondent No.3 i.e. the wife of petitioner herein under Section 446(3) of Cr.P.C. is set aside. - 8 - NC: 2024:KHC:7233 CRL.P No. 9550 of 2023 iii. The amount of Rs.2,00,000/- shall be released to the petitioner after making necessary enquiry. Sd/- JUDGE SSD List No.: 1 Sl No.: 9