- 1 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103760 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: SRI RAYAPPA SATTAPPA TOLE, AGE: 36 YEARS, OCC. AGRICULTURE, R/O. KANCHAKARAWADI VILLAGE, TQ. RAIBAG, DIST. BELAGAVI-591222. … PETITIONER (BY SRI PRASAD PATIL, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH PSI RAIBAG POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH AT DHARWAD-580011. … RESPONDENT (BY SRI JAIRAM SIDDI, HCGP) THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. (483 OF BNSS), SEEKING TO GRANT BAIL TO THE PETITIONER/ACCUSED NO.1 IN RAIBAG POLICE STATION CRIME NO.308/2024, FOR THE ALLEGED OFFENCES PUNISHABLE U/S. 20(A), 20(B) (I), 20(B)(II) (C) OF NARCOTIC DRUGS PSYCHOTROPIC SUBSTANCES ACT, 1985, IN THE INTEREST OF JUSTICE. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.01.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE FOLLOWING: MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.29 09:58:06 +0530 - 2 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 CAV ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition for regular bail is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short) in Crime no.308/2024 registered by Raibag Police Station for offences punishable under Sections 20 (b) (i), 20 (a), 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS’) by accused no.1 (petitioner). 2. Sri Prasad Patil, learned counsel for petitioner submitted prosecution case was based on complaint dated 19.11.2024 by S.D. Hammanavar, ASI, Raibag Police Station (complainant), stating on that day at 10:30 p.m., he received credible information about Rayappa Tole (petitioner) illegally cultivating Ganja in Sy.no.303/5 of Nandi Kurali village, and had kept same for drying with intention to illegally sell it to public. And 11:30 a.m., he reached spot observed from distance that a person was drying wet leaves and stalks on plastic sheet in yard of his house. And while coming out of sugarcane field, cultivation of Ganja plants - 3 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 was also noticed, confirmed after smelling its leaves. Immediately, Superior Officer was informed and after posting constable to keep watch, he returned back to station, registered Crime no.308/2024 (supra) at 12:00 p.m. for offences as stated above. 3. It was submitted, complaint merely stated about growth of Ganja on land, which did not belong to petitioner. And claimed petitioner was permanent resident of Kanchakarawadi. And without producing lease deed, it was alleged that petitioner had leased land and cultivated Ganja. It was contended, prosecution had neither arraigned owner of land nor enquired with him. And though quantity seized was shown as 89 Kgs. 560 grams, prosecution was yet to ascertain whether any of it was Ganja and secondly said quantity included entire plant i.e. mud strewn roots, wet stem, stalk, leaves, flowers and seeds and not dry weight. Therefore, Ganja in commercial quantity was seized was to be ascertained/established. Thus, there was no sufficient or direct incriminating material against petitioner. - 4 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 4. It was submitted, remand application clearly indicated petitioner was arrested at 6:45 p.m. on 19.11.2024, i.e. after sunset, in apparent contravention of Section 42 of NDPS. Therefore, prosecution case was vitiated due to procedural violation. It was submitted, petitioner was bonafide, innocent and law abiding citizen without any criminal antecedents, who was falsely implicated. He was also permanent resident having movable and immovable properties and was sole bread earner of his family. He was arrested on 19.11.2024 and was in custody as under trial. In support of his submissions, learned counsel relied on decisions of this Court in case of Sri Halappa v. State of Karnataka (in Crl.P.no.100090 of 2023 disposed of on 19.01.2023) and Siddappa v. State of Karnataka (in Crl.P.no.10982/2012 disposed of on 25.09.2012). On above grounds sought for allowing petition. 5. On other hand, Sri Jairam Siddi, learned HCGP for respondent - State opposed petition. It was submitted, on receipt of credible information, complainant had conducted search in land bearing Sy.no.303/5 and found petitioner had - 5 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 grown Ganja plants between Sugarcane crop and kept certain quantity for drying in yard of his house. It was submitted, after following due procedure total quantity recovered was 89 Kgs. 560 grams of Ganja worth Rs.7,85,360/- i.e. in ‘Commercial Quantity’, attracting presumption under Section 37 of NDPS. It was submitted, outer limit for filing charge sheet under NDPS was 180 days and due to pendency of investigation, charge sheet was not yet filed and petitioner would be required for custodial interrogation. 6. Insofar as contention about petitioner’s arrest at 6:45 p.m. on 19.11.2024 being in violation of Section 42 of NDPS, it was submitted, search begun at 4:30 p.m. and after conclusion he was arrested at 6:45 p.m. It was submitted there was substantial compliance and minor discrepancy if any, would not vitiate proceedings. It was further submitted, if petitioner was enlarged on bail, he was likely to tamper prosecution witnesses/material and hamper investigation. On above grounds sought to reject bail. - 6 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 7. Heard learned counsel and perused available material on record. 8. Hence, point that arises for consideration is: “Whether petitioner is entitled for regular bail with conditions?” 9. This petition, for regular bail is by accused no.1 in Crime no.308/2024 registered by Raibag Police Station for offences punishable under Sections 20 (b) (i), 20 (a), 20 (b) (ii) (C) of NDPS. 10. As per prosecution material i.e. complaint and spot panchanama drawn on date of search, there is recovery of total of 89 Kgs. 560 grams of cannabis with particulars as follows: i. Half dried and half moisture leaf, flowers and seeds having about 5 Kgs. 800 grams weight. ii. Half dried and half moisture leaf, flowers and seeds having about 3 Kgs. 800 grams weight. iii. Raw moisture leaf, flowers and seeds having about 7 Kgs. 470 grams weight. iv. One blue plastic basket half dried and half moisture 240 grams. - 7 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 v. Raw moisture Ganja plant, leaf, flowers and seeds total 15 trees about 11 feet having total 40 Kgs. 650 grams weight. vi. Raw moisture Ganja plant, leaf, flowers and seeds total 12 trees about 10.5 feet having total 31 Kgs. 600 grams weight. 11. Above particulars reveal, though more than commercial quantity of cannabis was recovered, about 9 Kgs. was dried cannabis found in possession, remaining was raw moisture cannabis plants found growing in land belonging to petitioner. Inventory prepared by Investigating Officer as Annexure-I for purposes of Section 52A (2) of NDPS would indicate that nearly 71 Kgs. of seized material included whole plant i.e. including roots, stem, stalk and leaves, flower and seeds. Therefore, samples sent for testing would include ascertaining whether seized material was cannabis and for determining net quantity of cannabis after excluding stem, roots etc. it cannot be stated at this stage that there is seizure or recovery of cannabis is in commercial quantity. Therefore, recording of satisfaction as required in Section 37 of NDPS would not be necessary at this stage. Besides it is case of prosecution that land bearing - 8 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 Sy.no.303/5 of Nandi Kurali village belongs to petitioner, he had taken land belonging to Prabhakar Shankar Metri on lease. But seizure panchanama does not appear to indicate extent of recovery from land belonging to petitioner and from land allegedly taken on lease. 12. Prosecution has not disputed claim by petitioner that there are no criminal antecedents. Admittedly he holds immovable properties and claims to be permanent resident along with family. Therefore, there is no basis to assume that he would flee justice in case of his released on bail. 13. Hon'ble Supreme Court in case of Sanjay Chandra v. CBI, reported in (2012) 1 SCC 40, has held purpose of bail is to secure appearance of accused at trial and it can be neither punitive nor preventative. It is further held, deprivation of liberty must be considered a punishment and that punishment begins after conviction and until then every man is deemed to be innocent. Moreover, concerns expressed by prosecution could be resolved by imposition of appropriate conditions. - 9 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 14. Specific contention of petitioner about his arrest after sunset being in violation of Section 42 of NDPS, would not be fatal, in view of substantial compliance, as held by Hon’ble Supreme Court in Sajan Abraham v. State of Kerala reported in (2001) 6 SCC 692, especially in light of explanation that process of seizure had commenced at 4:30 p.m. in presence of petitioner which would be between sunrise and sunset, his arrest after its conclusion at 6:45 p.m. Thus, point for consideration is answered in affirmative. Hence, following: ORDER Petition is allowed. It is ordered that petitioner/accused no.1 is ordered to be released on bail in Crime no.308/2024 registered by Raibag Police Station for offences punishable under Sections 20 (b) (i), 20 (a), 20 (b) (ii) (C) of NDPS, subject to following conditions: a) Petitioner shall execute personal bond for sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of Court. - 10 - NC: 2025:KHC-D:1648 CRL.P No. 103760 of 2024 b) He shall appear before Investigating Officer for purpose of investigation as and when required and co-operate with investigation. c) He shall not threaten, tamper with or influence prosecution witnesses, either directly or indirectly. d) He shall mark his attendance before Investigating Officer on every alternative Sunday between 11.00 a.m. to 5.00 p.m. e) He shall not leave jurisdiction of above Court without prior permission, until completion of trial. f) He shall not indulge in any criminal activities. g) It is clarified that all observations herein are prima facie for purposes of this order and not bind trial Court while passing final judgment. SD/- (RAVI V.HOSMANI) JUDGE GRD,CLK CT:PA LIST NO.: 1 SL NO.: 52