1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE11H DAY OF JANUARY, 2023 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.10123/2022 BETWEEN: MR. SAYYAD MOHAMMAD @ NASIM S/O. ABDUL AZIZ, AGED ABOUT31YEARS R/AT ABDULLA MANZIL VENKATESH LAYOUT, NEAR HANAFI MASJID, KUSHAL NAGAR KODAGU DISTRICT-571 234. … PETITIONER (BY SRI S. BALAKRISHNAN, ADVOCATE) AND: STATE OF KARNATAKA BY ECONOMIC AND NARCOTIC CRIME, POLICE STATION, MANGALURU CITY-575 001 REPRESENTED BY SPP, HIGH COURT BUILDING, BENGALURU-560 001. … RESPONDENT (BY SRI H.S.SHANKAR, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION439OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.30/2021 OF ECONOMIC AND NARCOTIC CRIME P.S., MANGALURU CITY FOR THE OFFENCES P/U/S. 8c, 20(B)(ii)(c) OF2NDPS ACT AND SECTIONS4AND251B)(b) OF ARMS ACT AND SECTION201R/W.34 OF IPC. THIS CRIMINAL PETITION COMING ON FOR ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This is a successive bail petition filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.30/2021 of E and N Crime Police Station, Mangaluru COP, Mangaluru City, for the offence punishable under Sections 25 and 3 of Indian Arms Act, 1959 and Sections 8(c) and 20(B)(II)(b) of Narcotic Drugs & Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short).
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. This Court earlier rejected the bail petition of this petitioner in Crl.P.No.3484/2022 on 07.06.2022 and while rejecting the bail petition, liberty was given to the petitioner to approach this Court after receipt of FSL report. Now, the FSL3report is received and hence, the petitioner has approached this Court by filing this petition.
4. Learned counsel for the petitioner would vehemently contend that this petitioner is in custody from the last 1 year, 7 months and this petitioner has been arraigned as accused No.5. The accusation made against this petitioner is that he was also in the car in which 60 kilograms of ganja was transported and this petitioner is not connected with the seizure of 217.740 kilograms of ganja from the lorry. The case of the prosecution is also that accused No.1 procured the ganja and sold the same to accused Nos.2 and 4 and this petitioner was in the car and accused No.3 was driving the car and the same was not in the conscious possession of this petitioner and the same was in the dicky. This petitioner is not the owner of car and lorry. Hence, he may be enlarged on bail.
5. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that total ganja seized is 277.740 kilograms and about 60 kilograms of ganja was seized from this petitioner and accused No.3, who 4 were transporting the ganja in the car and the said car was followed by a lorry which was provided to accused Nos.2 to 4 by accused No.6. He also submitted that, this Court also considered the merits of the case while rejecting the earlier bail petition and liberty was given to the petitioner to approach this Court after receipt of FSL report and FSL report is very clear that the seized articles are tested positive as ganja and hence, no grounds are made out in a successive bail petition to enlarge the petitioner on bail. He would further submit that this petitioner is also having criminal antecedents and Crime No.153/2020 is registered for the offence under Sections 8(a)(c) and 20(b) of NDPS Act and apart from that, Crime No.173/2021 is registered for the offence under Sections 395 and 364(a) of IPC. Hence, the petitioner is not entitled for bail.
6. Having heard the learned counsel for the petitioner and also learned High Court Government Pleader appearing for the respondent-State, admittedly, this is a successive bail petition and the facts also disclose that this petitioner was in the car bearing No.KA-03-MK-0649 along with accused No.3 in which 5 they were transporting 60 kilograms of ganja and accused Nos.2 and 4 were in the Eicher Insulator lorry wherein, 217.740 kilograms of ganja was seized and both the car as well as the lorry were seized at the spot. When such being the case, the Court has to take note of the gravity of the offence and possession of commercial quantity of ganja.
7. Learned counsel appearing for the petitioner also relied upon the judgment of the Apex Court in UNION OF INDIA VS. BAL MUKUND & ORS. in CRIMINAL APPEAL NO.1397 OF2007dated 31.03.2009 and brought to notice of this Court Para No.10, the manner in which a sample of narcotic drug would have to be taken and contend that seizure itself is not proper.
8. This Court would like to rely upon the judgment of the Apex Court in UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW VS. MD. NAWAZ KHAN reported in (2021) 10 SCC100 wherein the Apex Court discussed with regard to the finding that mere absence of possession of the contraband on the person of the accused does 6 not mean that the accused was not in “conscious possession” of the contraband and rather, the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case and the standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. The latter being the situation in the present case, the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on such knowledge.
9. The Apex Court also in Para No.32 of the judgment held that, issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact and further in Para No.33, the Apex Court observed that, in the complaint that was filed on 16.10.2019 it is alleged that at about 14.00 hours on 26.03.2019, information was received that between 15.00 – 17.00 hours on the same 7 day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. Therefore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial. The circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37 of the NDPS Act. The respondent was traveling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co- accused. The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him. The Apex Court also taken note of the quantity of contraband found in the vehicle is a commercial quantity. The contraband was concealed in the vehicle in which the respondent was traveling with the co-accused. Having taken note of these materials on record, the Apex Court set aside the order of granting bail. 8
10. The judgment referred (supra) is aptly applicable to the case on hand since, this accused was traveling along with accused No.3 in the skoda car and the same was followed by a lorry, wherein 217.740 grams of ganja was seized and the Court has to take note of the quantity of the contraband found in the vehicle and the contraband was concealed in the vehicle in which they were traveling. In the case on hand, this Court, while rejecting the bail petition of this petitioner, in Para No.6 has given the reason and taken note of the quantity of ganja seized in the vehicle and also taken note of the fact that accused No.1 distributed the ganja to other accused persons. When such being the material on record, this Court reserved liberty to the petitioner to approach this Court after receipt of the FSL report. Now, the FSL report is also received and the same confirms that the seized article is a ganja and FSL report also not helps the petitioner. Further, learned High Court Government Pleader appearing for the respondent-State also brought to notice of this Court the criminal antecedents of this petitioner and registration of cases against this petitioner in Crime Nos.153/2020 and 173/2021 which shows that there are criminal antecedents 9 against this petitioner. When such being the case, I do not find any grounds to enlarge the petitioner on bail in a successive bail petition and there is no changed circumstance to enlarge the petitioner on bail in a successive bail petition.
11. In view of the discussions made above, I pass the following: ORDER
The bail petition is rejected. Sd/- JUDGE ST