Karnataka High Court
Nasir Pasha vs State Of Karnataka on 19 December, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 11486 of 2024
C/W CRL.P No. 10702 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 11486 OF 2024
C/W
CRIMINAL PETITION NO. 10702 OF 2024
IN CRL.P No. 11486/2024
BETWEEN:
NASIR PASHA
S/O BABU PASHA,
AGED ABOUT 27 YEARS,
MALLAPUR VILLAGE,
SINDHANAPUR POST AND TALUK,
RAICHUR DISTRICT,
RAICHUR,
PRESENTLY R/AT NO.9,
BEHIND SUZUKI SHOWROOM,
DOMLUR,
BENGALURU-560038
...PETITIONER
(BY SRI. MUHAMMAD SHAMIL, ADVOCATE)
Digitally signed by
REKHA R AND:
Location: High Court
of Karnataka
STATE OF KARNATAKA BY
CANTONMENT RAILWAY POLICE STATION,
BENGALURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE.
...RESPONDENT
(BY SRI. RAHUL RAI K., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. (FILED UNDER SECTION 483 BNSS) PRAYING TO ENLARGE
HIM ON BAIL IN SPL.C.C.NO.1883/2024 BEFORE THE COURT OF THE
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34TH ADDITIONAL CITY CIVIL AND SESSIONS COURT AND SPECIAL
JUDGE FOR NDPS ACT AT BENGALURU IN CR.NO.30/2024
REGISTERED WITH THE RESPONDENT BANGALORE CANTONMENT
RAILWAY P.S., FOR OFFENCES PUNISHABLE UNDER SECTIONS
20(b)(ii)(C) OF THE NDPS ACT.
IN CRL.P NO. 10702/2024
BETWEEN:
MOHAMMAD YUSUF ALIAS SAHIL
S/O TOKIR AHMED
AGED ABOUT 24 YEARS
R/AT NO.8-18-2 NETHAJI STREET
BEHIND MASJID, CHINNA WAL THER
VISHAKAPATTANAM DISTRICT
ANDHRA PRADESH - 530 003
...PETITIONER
(BY SRI. PRASANNA RAO R.,ADVOCATE)
AND:
STATE BY CANTONMENT RAILWAY P S
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
...RESPONDENT
(BY SRI. RAHUL RAI K., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. (FILED UNDER SECTION 483 BNSS) PRAYING TO
RELEASE THE PETITIONER (ARRAYED AS ACCUSED NO.2) ON
BAIL IN CRIME NO.30/2024 OF RESPONDENT CANTONMENT
RAILWAY, PENDING ON THE FILE OF THE HONBLE COURT OF
XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE (NDPS) BENGALURU CCH-35 IN
SPL.C.NO.1883/2024 FOR THE ALLEGED OFFENCE PUNISHABLE
UNDER SECTION 20(b)(ii)(C), OF NDPS ACT 1985.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
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CRL.P No. 11486 of 2024
C/W CRL.P No. 10702 of 2024
ORAL ORDER
Accused Nos.1 and 2 in Spl.C.C.No.1883/2024
pending before the Court of XXXIV Addl. City Civil and
Sessions Judge and Special Judge for NDPS cases at
Bengaluru arising out of Crime No.30/2024 registered by
Bengaluru Cantonment Railway Police Station, Bengaluru,
for the offence punishable under Section 20(b)(ii)(C) of
Narcotic Drugs & Psychotropic Substances Act, 1985 (for
short, ‘NDPS Act‘), are before this Court in these two
petitions filed under Section 439 of Cr.P.C. seeking regular
bail.
2. Heard the learned counsel appearing for the
parties.
3. FIR in Crime No.30/2024 was registered by
Bengaluru Cantonment Railway Police Station, Bengaluru,
for the aforesaid offence against the petitioners herein on
the basis of first information dated 20.06.2024 received
from Govindappa D, Police officer attached to Bengaluru
Cantonment Railway Police Station, Bengaluru. During the
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course of investigation of the case, the petitioners herein
who were apprehended along with contraband article
ganja totally weighing 25 Kgs were arrested on
20.06.2024 and subsequently produced before the Court
and remanded to judicial custody. Seized contraband
article from the accused Nos.1 and 2 was subjected to
panchanaama. Investigation in the case is completed and
charge sheet has been filed against the petitioners herein
for the aforesaid offences.
4. Bail application filed by the petitioners before
the trial Court in Crl.Misc. No.8885/2024 and
Crl.Misc.No.7704/2024 were dismissed. Therefore, they
are before this Court in these two petitions.
5. Learned counsel for the petitioners submit that
accused are in custody for the last nearly six months.
Investigation of the case is completed and charge sheet
has been filed. Their custody is no more required. They
submit that there is no compliance of Section 52(A) of the
NDPS Act in the present case. The sample of the
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contraband articles are not collected in compliance of
provisions of Narcotic Drugs and Psychotropic Substances
(seizure, storage, sampling and disposal) Rules, 2022
(herein after referred as ‘NDPS Rules, 2022). Accordingly,
they pray to allow the petitions.
6. Per contra, learned HCGP has opposed the bail
petition. He submits seized contraband article in the
present case is of commercial quantity. Therefore, rigor
under Section 37(1)(b) of NDPS Act becomes applicable as
against the petitioners. Accused No.1 has criminal
antecedents. Accordingly, he prays to dismiss the
petitions.
7. Perusal of the material available on record
would go to show that, on the 20.06.2024 at about 11.30
am when the first informant was on duty at Cantonment
Railway Police Station, Bengaluru, he found two persons
sitting on a bench holding two trolley bags and their
movements were suspicious. Therefore, he enquired with
the said persons who revealed their names as Nazir Pasha
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s/o Babu Pasha and Mohammed Yusuf @ Sahil s/o Tokir
Ahmed. They also confessed that they were carrying
contraband article allegedly ganja in the bags which were
with them. Therefore, said persons were apprehended and
from their possession contraband article ganja was seized
under a mahazar and thereafter FIR was registered
against them.
8. The material on record would go to show that
from the bag which was in the possession of the accused
No.1, 15 Kgs of ganja was allegedly seized and from the
bag which was in possession of accused No.2, 10 Kgs of
contraband article ganja was seized. 15 Kgs of ganja
which was found inside the trolley bag of accused No.1
was packed in two different bundles and 10 Kgs of ganja
which was found in the bag of accused No.2 was packed in
one bundle. Therefore, it is apparent that the seized
contraband article ganja was found packed in three
different bundles. From the application filed by the
prosecution before the learned Magistrate for the purpose
of compliance of Section 52A of the NDPS Act, it is found
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that only two samples of 100 grams of ganja has been
collected. From the material on record it appears that the
contraband article found in the bag of accused No.1 was
homogeneously mixed and thereafter sample has been
collected.
9. Rule 10 of the NDPS Rules, 2022 reads as
follows:
10. Drawing the samples. – (1) One
sample, in duplicate, shall be drawn from each
package and container
seized.
(2) When the packages and containers
seized together are of identical size and weight
bearing identical marking
and the contents of each package give
identical results on colour test by the drugs
identification kit, conclusively
indicating that the packages are identical in
all respects, the packages and containers may
carefully be bunched
in lots of not more than ten packages or
containers, and for each such lot of packages and
containers, one
sample, in duplicate, shall be drawn:
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straw and hashish (charas) it may be bunched in
lots of not more than
fourty packages or containers.
(3) In case of drawing sample from a
particular lot, it shall be ensured that
representative sample in equal
quantity is taken from each package or
container of that lot and mixed together to make
a composite whole from
which the samples are drawn for that lot.
10. The Hon’ble Supreme Court in the case of
UNION OF INDIA V. BAL MUKUND – (2009) 12 SCC
161, after referring to standing order 1/88, which
contained provisions similar to Rule 10 of NDPS Rules,
2022, in paragraph No.36 has observed as follows:
“36. There is another aspect of the matte
which cannot also be lost sight of . Standing
Instruction No.1/88, which had been issued under
the Act, lays down the procedure for taking
samples. The High Court has noticed that PW7
had taken samples of 25 grams each from all the
five bags and then mixed them and sent to the
laboratory. There is nothing to show that
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It was a requirement in law”.
11. Similar view has been taken by the High Court
of Rajasthan in the case of KISHAN LAL. The purpose of
drawing sample and testing the same is to establish the
composition of the substance of sample drawn. Therefore,
the sample drawn should be fraction of substance
recovered from the accused and it is for this reason
collection of sample from each of the bags / containers
become necessary.
12. In the present case, the prosecution has failed
to comply the requirements of Rule 10 of NDPS Rules,
2022 and the sample of the seized contraband articles is
not collected in the manner known to law. Appreciating the
standard order 1/88, in the case of BAL MUKUND
(supra), the Hon’ble Supreme Court has held that
collection of adequate quantity of contraband articles from
each bag is a requirement in law. The petitioners are in
custody from 26.06.2024 onwards. Since the sample are
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not collected in the manner known to law, the seizure
itself get vitiated. Under the circumstances, the rigor
under Section 37(1)(b) of the NDSP Act cannot be strictly
made applicable as against the petitioners herein. As
against accused No.1 it is stated that another criminal
case has been registered and it is brought to the notice of
this Court that contraband article ganja seized in the said
case totally weighed 4 Kg and there is no seizure of any
contraband article in the said case from possession the
accused No.1 herein. In the said case accused No.1 has
been enlarged on bail. Insofar as accused No.2 is
concerned undisputedly he has no other criminal
antecedents. Investigation in the present case is already
completed, the prosecution has in all cited 11 charge
sheet witnesses and trial in the case is yet to commence.
13. Considering the aforesaid aspects of the matter,
I am of the opinion that prayer made by the petitioners for
grant of regular bail needs to be answered affirmatively,
subject to appropriate conditions.
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14. Accordingly, the following:-
ORDER
The petitions are allowed.
The petitioners are directed to be enlarged on bail in
Spl.C.C.No.1883/2024 pending before the Court of XXXIV
Addl. City Civil and Sessions Judge and Special Judge for
NDPS cases at Bengaluru arising out of Crime No.30/2024
registered by Bengaluru Cantonment Railway Police
Station, Bengaluru, for the offence punishable under
Section 20(b)(ii)(C) of Narcotic Drugs & Psychotropic
Substances Act, 1985, subject to the following conditions:
a) The petitioners shall execute a
personal bond for a sum of Rs.2,00,000
(Rupees Two Lakh only) each with two sureties
(out of which one surety shall be local
surety) for the likesum, to the satisfaction of
the jurisdictional Court;
b) The petitioners shall appear regularly
on all the dates of hearing before the Trial
Court unless the Trial Court exempts their
appearance for valid reasons;
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c) The petitioners shall not directly or
indirectly threaten or tamper with the
prosecution witnesses;
d) The petitioners shall not involve in
similar offences in future.
SD/-
(S VISHWAJITH SHETTY)
JUDGE
ASN
List No.: 1 Sl No.: 24