- 1 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.100095 OF 2025 [439(CR.PC)/483(BNSS)] BETWEEN: 1. MAHESH FAKIR KOTI AGE: 23 YEARS, OCC. COOLIE, R/O. KANJARABAT GALLI, GANDHI NAGAR, DANDELI, TQ. DANDELI, DIST. UTTARA KANNADA-581325. (AS STATED IN FIR) MAHESH FAKEERAPPA KOTI (CORRECT NAME AS PER AADHAR CARD) 2. AMAN MAHAMMAD RAFIK TAHASILDAR AGE: 21 YEARS, OCC. COOLIE, R/O. MARUTI NAGAR, DANDELI, TQ. DANDELI, DIST. UTTARA KANNADA-581325, (AS STATED IN FIR) AMAN MOHAMMEDSAB TAHASHILDAR (CORRECT NAME AS PER AADHAR CARD) … PETITIONERS (BY SMT. CHITRA GOUNDALKAR, ADVOCATE) AND: STATE OF KARNATAKA BY DANDELI TOWN POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD-580001. … RESPONDENT (BY SMT. GIRIJA S.HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BNSS, SEEKING TO GRANT THE PETITIONERS/ACCUSED NO.1 AND 2 ON BAIL IN CC NO.3201/2024 PENDING ON THE FILE OF LEARNED PRL.DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR ARISING OUT OF DANDELI TOWN POLICE CRIME NO.84/2024, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 8(C), 20(B)(ii)(B) OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT-1985. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.14 17:26:21 +0530 - 2 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) for grant of regular bail in Crime no.84/2024 of Dandeli Town Police Station for offences punishable under Sections 8(c), 20 (b) (ii) (b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’ for short) by accused no.1 and 2 (petitioners). 2. Smt.Chitra Goundalkar, learned counsel for petitioners submitted case of prosecution was that on 06.09.2024 Yallappa S., Police Sub-Inspector, Dandeli Town Police (complainant), while in station received credible information about petitioners illegally possessing and selling Ganja. Immediately, after informing Superior Officer by e-mail and telephone, complainant reached spot along with panchas and found petitioners to be standing by side of public road near Ambewadi Railway Station. On observations, it was found that petitioners were standing nearby Scooty with a plastic carry bag. At 5:40 p.m. they were apprehended. On enquiry, they informed their name as Mahesh Fakir Koti and Aman - 3 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 Mahammad Rafik. As a search of person was necessary and Gazetted Officer was available, after taking consent, petitioners were searched. A plastic carry bag containing material that smelled like Ganja was seized. There were other packets rapped in brown colour tape. On having same to be opened and on weighing, a total content of 1 kg 216 grams of Ganja worth about Rs.50,000/- was found. Since said possession was without any authorization or permit, complainant sought initiation of action against said persons. In pursuance of same, petitioners were arrested on 06.09.2024. 3. It was submitted, while petitioners were in custody, investigation is completed and charge-sheet was filed on 25.10.2024. It was submitted, FSL Report relied upon by prosecution to substantiate charges against accused clearly revealed that sealed packet contained dried stems, stems with stalks bearing dried greenish brown coloured leaves, fruiting and flowering tops and seeds, etc. Referring to definition of ‘Ganja’ under Section 2 (3) (b) of NDPS it was submitted same would exclude stems, seeds, leaves, etc. It was submitted, total quantity seized from petitioners was 1 Kg 216 Grams and after deduction towards stems, stalks, etc., quantity seized - 4 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 would fall below intermediate quantity. It was submitted, though prosecution had relied upon antecedents of petitioners by stating that accused no.1 had two cases also under NDPS Act and accused no.2 had one similar offence. It was submitted, Hon’ble Supreme Court in case of Prabhakar Tewari vs. State of UP reported in (2020) 11 SCC 648, held mere antecedents would not be a good ground for rejection of bail. It was submitted, learned District Judge dismissed application solely on said reasons. It was submitted, since petitioners were permanent residents having movable and immovable properties and as charge-sheet was filed, they are not required for custodial interrogation and therefore, sought for grant of bail. 4. On other hand, Smt.Girija S. Hiremath, learned HCGP sought to oppose petition. It was submitted, offences alleged against petitioners were under Sections 8 (C) and Section 20 (b) (ii) (B) of NDPS. In view of fact that offences alleged itself are in nature of crime against society and as FSL Report had found traces of cannabis in seized material. Even though quantity seized was intermediate quantity, in view of - 5 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 petitioners in similar offences within short span of time, sought for rejection of bail petition. 5. Heard learned counsel and perused available material. 6. From above, point that arises for consideration is: “Whether petitioners are entitled for regular bail on conditions?” 7. This petition is for regular bail by accused no.1 and 2, in Crime no. 84/2024 of Dandeli Town Police Station for offences punishable under Sections 8(c), 20 (b) (ii) (b) of NDPS. It is seen that nature of offence alleged against petitioners are illegal possession and sale of Ganja. They would appear to be grave offences. However, in light of definition of Ganja under Section 2 (iii) (b) of NDPS Act, Ganja would exclude stalks and stems. Quantity seized even as per prosecution case was intermediate quantity and in case of exclusion of stalks and stems, net quantity was likely below intermediate quantity. However, same would be matter for trial. Since, investigation is already completed and charge- sheet is filed. Petitioners are alleged to have been in possession of 1 Kg 210 grams of Ganja. Regardless of prosecution - 6 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 concerns about petitioners involving in similar offences, in view of ratio laid down by Hon’ble Supreme Court in case of Prabhakar Tewari (supra) that rejection of bail application merely on ground of criminal antecedents, would not be justified. Infact in case of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40, Hon’ble Supreme Court held purpose of bail is only to secure presence of petitioner during trial and not as a measure of punishment of under trial and until convicted, there would be presumption of innocence. 8. Under above circumstances and as petitioners have been in custody from date of arrest i.e. 06.09.2024, petitioners could be granted bail by imposing stringent conditions. Hence point for consideration is answered in affirmative. Accordingly following: ORDER Petition is allowed. Petitioners/accused no.1 and 2 are released on bail in 84/2024 of Dandeli Town Police Station for offences punishable under Sections 8(c), 20 (b) (ii) (b) of NDPS Act, subject to following conditions: - 7 - NC: 2025:KHC-D:3074 CRL.P No. 100095 of 2025 a) Petitioners/accused no.1 and 2 shall execute a personal bond each in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of Prl. District & Sessions Judge, Uttara Kannada, Karwar. b) Until conclusion of trial, they shall mark their attendance once a month i.e. between 9:00 a.m. and 4:00 p.m., on 1st of every month before Investigating Officer. c) They shall also attend trial Court proceedings regularly. d) They shall not threaten or tamper with any prosecution witnesses either directly or indirectly. e) They shall not indulge in any criminal activities SD/- (RAVI V.HOSMANI) JUDGE GRD,RH CT:PA LIST NO.: 1 SL NO.: 6