- 1 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRIMINAL PETITION NO. 1873 OF 2025 C/W CRIMINAL PETITION NO. 12748 OF 2024 IN CRL.P No. 1873/2025 BETWEEN: MOHAMMED HAFEEZ YANE APPI, S/O. ABDUL KHADER YANE KADRI BEARY, AGED ABOUT 36 YEARS, R/AT NO.1-63, NANDAVARA, BANTWAL TALUK, D.K DISTRICT - 574 222. …PETITIONER (BY SRI. LETHIF B., ADVOCATE) AND: STATE OF KARNATAKA, BY ULLALA CRIME POLICE STATION, MANGALORE, D.K DISTRICT. REP. BY SPP, HIGH COURT BUILDING, BANGALORE - 560 001. …RESPONDENT (BY SMT.PUSHPALATHA B., ADDITIONAL SPP) THIS CRL.P IS FILED U/S 439 CR.P.C (U/S 483 BNSS) PRAYING TO RELEASE HIM ON BAIL IN CR.NO.120/2023 (SPL.C.NO.40/2024) OF ULLALA P.S., MANGALORE, D.K. DISTRICT, FOR THE OFFENCE P/U/S 8(C), 21, 21(C) R/W 34 OF Digitally signed by KAVYA R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 NDPS ACT, PENDING BEFORE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE. IN CRL.P NO. 12748/2024 BETWEEN: JAKIR HUSSAIN, S/O MOYIDINABBA, AGED ABOUT 29 YEARS, R/AT 2-202, DASARGUDDE HOUSE, PANEMBANGALURU, SAJIPA MUNNUR VILLAGE, BANTWAL TALUK, D.K.DISTRICT - 574 231. ...PETITIONER (BY SRI. LETHIF B.,ADVOCATE) AND: STATE OF KARNATAKA, BY ULLALA CRIME POLICE STATION, MANGALORE, D.K.DISTRICT. REP. BY SPP, HIGH COURT BUILDING, BANGALORE - 560 001. ...RESPONDENT (BY SMT.PUSHPALATHA B., ADDITIONAL SPP) THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNSS) PRAYING TO RELEASE HIM ON BAIL IN CR.NO.120/2023 (SPL.C.NO.40/2024) OF ULLALA POLICE STATION, MANGALORE, D.K. DISTRICT FOR THE OFFENCE P/U/S 8(C), 21, 21(C) OF NDPS ACT, PENDING BEFORE PRL. DISTRICT AND SESSIONS AND SPECIAL JUDGE, D.K. MANGALORE. - 3 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY ORAL ORDER Accused Nos.1 and 3 in Spl.C.No.40/2024 pending before the Court of Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.120/2023 registered by Ullal Police Station, Mangaluru City, for the offences punishable under Sections 8(c), 21, 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and read with Section 34 of IPC are before this Court in these two petitions filed under Section 439 of Cr.PC seeking regular bail and therefore, they are heard together and disposed off by this common order. 2. Heard the learned Counsel for the parties. 3. FIR in Crime No.120/2023 was registered by Ullal Police Station, Mangaluru City, against Mohammed and two others for the aforesaid offences, based on the first information dated 02.08.2023 received from - 4 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 Sharanappa Bhandary, Police officer attached to CCB Unit, Mangaluru Division, D.K. District. 4. During the course of investigation of the case, petitioners herein were arrested on 02.08.2023. After completion of investigation, charge sheet has been filed against them for the aforesaid offences and in the charge sheet they are arraigned as accused Nos.1 and 3 respectively. Bail application filed by the petitioners before the Jurisdictional Sessions Court in Spl.C.No.40/2024 was rejected and therefore, they are before this Court. 5. Learned Counsel for the petitioners submits that there is no compliance of Section 50 of the NDPS Act in the present case. Petitioners are in custody for the last more than one year seven months. Trial in the case is not yet commenced. He also submits that there is no compliance of Section 42 of the NDPS act in the present case. He submits that accused No.2 has been granted regular bail by this Court in Crl.P.No.8277/2024. Accordingly, he prays to allow this petition. - 5 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 6. Per contra, learned Additional SPP who has opposed the petition submits that petitioners are persons with criminal antecedents. However, she does not dispute that Section 50 of NDPS Act was not complied in the present case. Accordingly, she prays to dismiss this petition. 7. Perusal of the material on record would go to show that based on the credible information received first informant along with his staff had apprehended accused Nos.1 to 3 who were sitting inside a car on 02.08.2023 and from their possession totally 200 grams of contraband article allegedly MDMA was seized. From the pant pocket of accused No.1 contraband article allegedly MDMA totally weighing 50.33 grams was seized and from the pant pocket of accused No.3 contraband article allegedly MDMA totally weighing 50.25 grams was seized. Thereafter from the dashboard of the car contraband article totally weighing 50.48 grams was seized. Since from the person of accused Nos.1 and 3 contraband article was seized - 6 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 compliance of Section 50 of the NDPS Act becomes necessary in the present case. 8. Perusal of the material on record would go to show that the Investigation Officer has issued a notice to the accused persons in compliance of Section 50 of the NDPS Act. Reading of the said notice would go to show that in the said notice the right of the accused persons to be searched in the presence of Magistrate has not been mentioned. Therefore, it cannot be said that there is a compliance of Section 50 of the NDPS Act in the present case. 9. The Hon’ble Supreme court in the case of MINA PUN VS. STATE OF UTTAR PRADESH, reported in 2023 SCC OnLine SC 1079 in paragraph No.8 as observed as follows: "8. In view of the law laid down by a Constitution bench of this Court in Vijaysinh Jadeja v. State of Gujarat1, it is crystal clear that there was a violation of the safeguard provided by Section 50 of the NDPS Act. In paragraphs 24 and 29 of its decision, the Constitution Bench held thus: - 7 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 “24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub- section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. 25……… 26……… 27……… 28……… - 8 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 10. In the said case, since Section 50 of the NDPS Act was not complied the Hon'ble Supreme Court has held that the conviction of the accused cannot be sustained. 11. Petitioners are in custody from 02.08.2023. Accused No.2 has been granted regular bail by this Court in Crl.P.No.8277/2024 disposed off on 19.09.2024. Case before the trial Court is still at the stage of hearing before charge. - 9 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 12. The Hon'ble Supreme Court in the case of JAVED GULAM NABI SHAIKH VS. STATE OF MAHARASHTRA AND ANOTHER - 2024 SCC ONLINE SC 1693 at paragraph No.19, the Hon'ble Apex Court has observed as follows: "19. If the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime." 13. 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 - 10 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 and demerits of the case, has granted regular bail to the accused. In the case of Nitish Adhikary 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. 14. Considering the aforesaid aspects of the matter, I am of the view that without expressing any opinion on the merits and demerits of the case, the prayer made by the petitioners for grant of regular bail needs to be answered affirmatively. Accordingly, the following:- ORDER Criminal petitions are allowed. The petitioners are directed to be enlarged on bail in Spl.C.No.40/2024 pending before the Court of Principal - 11 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.120/2023 registered by Ullal Police Station, Mangaluru City, for the offences punishable under Sections 8(c), 21, 21(c) of NDPS Act and read with Section 34 of IPC, subject to the following conditions: a) The petitioners shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) each with two sureties 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 his appearance for valid reasons; 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; - 12 - NC: 2025:KHC:14712 CRL.P No. 1873 of 2025 C/W CRL.P No. 12748 of 2024 e) The petitioners shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against his is disposed off. Sd/- (S VISHWAJITH SHETTY) JUDGE KVR List No.: 1 Sl No.: 52