Case Note & Summary
The petitioner, Roshan Kumar Mishra, filed a criminal petition under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking regular bail in Crime No.143/2022 registered by Begur Police Station, Bengaluru, for an offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The case arose from a suo motu complaint on 31.05.2022, when the police received credible information that two persons were selling ganja and bhang near a vacant space adjacent to Q Grill Bar and Restaurant in Chikkabeguru. The police conducted a raid and allegedly seized 29 kgs of Bhang and 1.5 kgs of Ganja from the petitioner's possession. The petitioner was arrested and remanded to judicial custody. The petitioner's counsel argued that the quantity of Ganja (1.5 kgs) was less than commercial quantity, and the seizure of Bhang (29 kgs) was not properly established. Additionally, the counsel contended that the mandatory provisions of Section 50 of the NDPS Act were not complied with, as the petitioner was not informed of his right to be searched before a Magistrate or Gazetted Officer. The State opposed the bail, arguing that the quantity of Bhang was commercial and that the petitioner was involved in drug trafficking. The court, after hearing both sides, observed that the seizure was made from a bag carried by the petitioner, which constitutes a personal search requiring compliance with Section 50. The police failed to inform the petitioner of his right to be searched before a Magistrate or Gazetted Officer, rendering the seizure illegal. The court also noted that the quantity of Ganja was less than commercial quantity, but the Bhang quantity was commercial. However, due to the procedural violation, the court held that the petitioner was entitled to bail. The court granted bail subject to conditions including furnishing a bond of Rs.1,00,000 with two sureties, reporting to the police station weekly, not tampering with evidence, and not leaving the jurisdiction without permission.
Headnote
A) Criminal Procedure Code - Bail - Section 439 CrPC - Regular Bail - Petitioner-accused sought bail for offence under Section 20(b) NDPS Act - Court considered the quantity of contraband (29 kgs Bhang, 1.5 kgs Ganja) and held that the quantity of Ganja was less than commercial quantity, but Bhang was commercial quantity - However, the court found non-compliance with Section 50 NDPS Act as the search was conducted without informing the accused of his right to be searched before a Magistrate or Gazetted Officer - Held that the accused is entitled to bail on stringent conditions (Paras 1-10). B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b) - Commercial Quantity - Determination - The court noted that 29 kgs of Bhang falls within commercial quantity as per NDPS Act, but 1.5 kgs of Ganja is less than commercial quantity - However, the court did not base its decision solely on quantity but on procedural violation (Paras 4-6). C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Compliance - Personal Search - The court observed that the seizure was made from a bag carried by the accused, which is akin to personal search - The police failed to inform the accused of his right to be searched before a Magistrate or Gazetted Officer - Held that non-compliance with Section 50 vitiates the seizure and entitles the accused to bail (Paras 7-9).
Issue of Consideration
Whether the petitioner-accused is entitled to regular bail under Section 439 CrPC for an offence under Section 20(b) of the NDPS Act, considering the quantity of contraband and compliance with mandatory provisions.
Final Decision
The petition is allowed. The petitioner-accused is ordered to be released on bail in Crime No.143/2022 of Begur Police Station, subject to executing a bond of Rs.1,00,000 with two sureties, and conditions including reporting to the police station once a week, not tampering with evidence, and not leaving the jurisdiction without permission.
Law Points
- Bail under Section 439 CrPC
- NDPS Act Section 20(b)
- Commercial quantity determination
- Section 50 NDPS Act compliance
- Personal search vs. bag search
- Right to be informed of search
