Shankar Krishnasa Habib v. State Of Karnataka

Hanumanthappa, J.:—

This is a Petition filed under Section 439 of the Code of Criminal Procedure. The offences alleged are punishable under Sections 17, 18, 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the Act) read with Section 34 of Karnataka Excise Act. Similar petition was filed before the Principal Sessions Judge (Special Judge), Dharwad in Crime No. 75/91. The said Petition was opposed by the State. Learned Sessions Judge by an order dated 12.8.91 rejected the said Petition.

2. The case of the prosecution is that on an information received by the P.S.I Ganthikeri Police Station of Hubli at about 10 p.m on 31.7.1991 to the effect accused - petitioners herein, who are residents of Aralikatti Oni of Hubli coming within the limits of Ganthikeri Police Station are engaged in the Narcotic trade and have huge stock of Ganja in their residence, he along with panchas raided the house of the petitioners. On a thorough search of the premises, detected 2 gunny bags containing ganja weighing 50 Kgs each valued at Rs. 15,000/- each. When the petitioners were interrogated to produce a valid permit or licence for possession of the same, they were not able to give any satisfactory reason. Hence, the said material was seized from the accused under a panchanama. A mahazar was drawn. The petitioners were arrested. Then, a case came to be registered in Crime No. 75/91 for offences punishable under Sections 17, 18, 21 and 22 of the Act read with Section 34 of the Karnataka Excise Act. The further case of the prosecution is that pursuant to registering a case, immediately F.I.R was submitted to the Session Court, Dharwar. Accused were produced before the Sessions Judge on 1.8.1991 and they were remanded into judicial custody upto 12.8.91 and subsequently upto 4.9.1991

3. Further case of the prosecution is that during investigation they recorded the statements of five witnesses viz., 1) S.I Imadi, 2) A.P Kallur, 3) S.S Gayakwad, 4) S.F Madivalar and 5) M.N Iyati, who are all direct witnesses for the seizure of 2 bags of ganja. After seizure, the said two bags were sent to chemical examination. Its report is awaited.

4. Now, the petitioners against who accusation has been made, contended as follows:

i) They are innocent of the guilt accused;

ii) A reading of the complaint does not disclose as to who exactly was in possession of two bags of ganja;

iii) The petitioners are not the owners of the ganja in question. In the premises where the petitioners are tenants, other tenants also occupying different portions. The family of the petitioners consist of themselves, their parents, their wives, brothers and sisters and their children.

5. The complaint reads as follows:

A reading of the complaint to connect the petitioners with the offences of the Act viz., Sections 17, 18, 21 and 22 of the Act makes it clear that the same is the resultant of non-application of mind. The specific case of the complainant is about the seizure of ganja, whereas Sections 17 and 18 of the Act say about some other prohibited articles under the Act. According to them, they being innocent, they be released on bail.

6. Sri Muddahanumegowds, learned Counsel for the petitioners further submits that both the petitioners have roots in the society, particularly petitioner No. 1 is a chronic mental patient and taking treatment in Mental Hospital, Hubli. If they are released on bail, they would abide by whatever terms the Court impose. They will undertake that they would not tamper the prosecution evidence. They will also appear either before the police or before the Court whenever they are so required. For these reasons learned Counsel for the petitioners submits that the petitioners be released on bail.

7. Whereas Sri Jadhav, learned High Court Government Pleader submits that petitioners are not entitled for bail because offences alleged are all very serious in nature. According to him, it should not be forgotten that in a murder case the accused commits the murder of one or two persons when those persons who are dealing with ganja are intoxicated persons are causing the death of number of people in the society and/or playing with the life. These types of offences affect the society at large. Law should not be made so much impotent if it does not help the society. Reliance is placed on Ruling of the Supreme Court viz. in Narcotics Control Bureau v. Kishan Lalx which reads thus:

“6. Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The N.D.P.S Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of N.D.P.S Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439, Cr. P.C are not subject to the limitation mentioned under Section 37 of N.D.P.S Act. The non-obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr. P.C and Section 37 if the N.D.P.S Act, Section 37 prevail. In this context Section 4, Cr. P.C may be noted which read thus:

“(4) Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr. P.C should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India, (1983) 1 SCR 393 : (AIR 1982 SC 1413), regarding the mode of interpretation the Supreme Court observed as follows (at page 1419 of AIR):

“The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity.”

As already noted, Section 37 of the N.D.P.S Act starts with a non-obstinate clause stating that, Notwithstanding anything contained in the Code of Criminal Procedure, 1973 no persons accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr. P.C should necessarily be subject to the conditions mentioned in Section 37 of the N.D.P.S Act.

7. We shall now refer to some of the decisions of this Court dealing with the analogous provision in other special enactments. Rule 184 of the Defence and Internal Security of India Rules, 1971 which is analogous to Section 37 of the N.D.P.S Act runs as follows:

“Rule 184. Notwithstanding anything contained in the Code of Criminal Procedure 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless-

(a) The prosecution has been given an opportunity to oppose the application for such release, and

(b) Where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.”

The Rule commences with a non-obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules. It imposes fetters on the exercise of the power of granting bail in certain kinds of cases. In Balchand Jain v. State of Madhya Pradesh, (1977) 2 SCR 52 : AIR 1977 SC 366, a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 or whether former provisions is overridden by the latter. This Court held that Rule 184 does not stand in the way of Court of Session or High Court granting anticipatory bail on the ground that the two provisions operate at two different stages. Of course, in the instant case, we are not concerned with Section 438 but the observations regarding the scope of Rule 184 are relevant which read thus:

“But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant ‘anticipatory bail’ under Section 433. The rule making authority obviously thought offences arising out of contravention of Rules and orders made thereunder were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted of contravention of any Rule or order made under the Rules, shall be released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or Order specified in this behalf in a notified order there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant anticipatory bail to a person apprehending arrest on such accusation, though they would not be strictly applicable.”

(Emphasis supplied).

Fazal Ali, J. in his concurring judgment also held thus (at page 379 of AIR):

“(4) That in cases covered by Rule 184 of the Rules the Court, exercising power under Section 436 or Section 438 of the Code has got to comply with the conditions mentioned in clauses (a) & (b) of Rule 184 and only after the Court has complied with those conditions that an order under any of these sections of the Code in respect of such offences could be passed.”

In Usmanbhai's case, AIR 1988 SC 922, a question whether the provisions of sub-section (8) and (9) of Section 20 of the TADA Act limit the scope of Sections 437 and 439, came up for consideration, the language of sub-sections (8) and (9) of Section 20 is analogous to Section 37 of N.D.P.S Act and they read thus:

“(8) Notwithstanding anything contained in the Code, no persons accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.”

It may be noted at this stage that the power of the High Court or the Sessions Court to grant anticipatory bail has been completely taken away under Section 20(7) of the TADA Act. The contention was that the source of power of designated court to grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail. It is also contended that to take away the power of the High Court would tantamount to strike at the very foundation of an independent judiciary free from executive control. After considering these submissions this Court held that:

“Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are ‘in addition to the limitations under the Code or any other law for the time being in force’. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is ‘a court other than the High Court or the Court of Session’ within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act.”

(Emphasis supplied).

Having held so, the learned Judges proceeded to consider the controversy as to the power of the High Court to grant bail under Section 439 Cr. P.C Having regard to the explicit bar under Section 19(2) of the TADA Act excluding the jurisdiction of the High Court to entertain an appeal or revision against the judgment of the designated court, it is held that the High Court had no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal Procedure. However, regarding the construction of non-obstante clause in Section 20(8) of the Act, this Court held as under:

“The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act. It commences with a non-obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It therefore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from Section 20(8) of the Act.”

It can thus be seen that even in Usmanbhai's case, AIR 1988 SC 922, also there is no observation supporting the view taken by the High Court in the impugned judgment. As a matter of fact in Usmanbhai's case, Sen, J. who spoke for the Bench, after referring to the ratio laid down in Balchand Jain's case, AIR 1977 SC 306, observed thus (at page 932 of AIR 1988):

“The view expressed in Balchand Jain case is not applicable at all for more than one reason. There was nothing in the Defence and internal Security of India or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether. On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court. The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant to bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied.”

(Emphasis supplied)

The High Court in the impugned judgment, however, referred to Usmanbhai's and held that the limitations placed under Section 37 of the N.D.P.S Act are exactly similar to the ones in sub-sections (8) and (9) of Section 20 of the TADA Act and they are applicable only to special courts. But we may point out that in paragraph 16 in Usmanbhai's case, AIR 1988 SC 922, it is observed (at page 929 of AIR):

“As a matter of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under Section 439 of the Code or by recourse to its inherent powers under Section 482.”

However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain's case, AIR 1977 SC 366, is not applicable to the facts in Usmanbhai's case, AIR 1988 SC 922, and the same is clear from the observations made in Usmanbhai's case, AIR 1988 SC 927, which read as under (at page 932 of AIR):

“Lastly both the decision in Balchand Jain and in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code.”

From the above discussion it emerges that in Usmanbhai's case, AIR 1988 SC 912, the Supreme Court did not express anything contrary to what has been observed in Balchand Jain's case, AIR 1977 SC 366, and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the nonobstante clause must be given its due importance. For all the aforesaid reasons we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the N.D.P.S Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly.”

8. After hearing both sides and going through the records, it is proper to know whether the prosecution has made out a case so as to deny bail for the petitioners at this stage. To appreciate this, it is proper to advert to some of the provisions of the Act, which deal about the offences. The word ‘ganja’ has been defined under Section 2 sub-section (iii) of the Act, which reads thus:—

“(iii) ‘cannabis (hemp)’ means-

(a) Charas, that is, the separated resin, in whatever form, whether crude or purified; from the cannabis plants and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) Any mixture, with or without any natural material, of any of the above forms of cannabis or any drinks prepared therefrom;

(iv) ‘cannabis plant’ means any plant of the genus cannabis;”

Sections 17, 18, 21 and 22 of the Act which the prosecution has invoked deal about punishment for contravention in relation to prepared opium, punishment for contravention in relation to opium poppy and opium, punishment for contravention in relation to manufactured drugs and preparations and punishment for contravention in relation to psychotropic substances. As said earlier, Section 17 deals about punishment for contravention in relation to prepared opium. Word ‘opium’ is defined under Section 2 sub-section (xvi) of the Act, reads as follows:—

“(xvi) ‘opium derivative’ means—

(a) medicinal opium, that is opium which has undergone the processes necessary to adapt it for medicinal use in accordance with requirements of the Indian Pharmacopoeia or any other phamacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;

(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c) phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts;

(d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and

(e) all preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine;

(xvii) ‘opium poppy’ means—

(a) the plant of the species popover somniferum L.; and

(b) the plant of any other species of papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the official Gazette, declare to be opium poppy for the purposes of this Act;”

If the averments made in the complaint are compared with the offences referred to therein which are extracted above, the only conclusion is that they do not relate to offence relating to ganja. As far as the offence relating to ganja is concerned it falls under Section 20 of the Act, which reads as follows:—

“20. Punishment for contravention in relation to cannabis plant and cannabis.— Whoever, in contravention of any provision of this Act or any Rule or Order made or condition of licence granted thereunder,—

(a) cultivates any cannabis plant, or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable—

(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;

(ii) Where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

From a reading of Section 20 sub-section (1) of the Act, it is clear that any contravention relating to ganja of the cultivation of cannabis plant, the punishment will be rigorous imprisonment for a term of five years and shall also be liable to fine which may extend to fifty thousand rupees. Other than ganja, the rigorous imprisonment shall be minimum ten years and maximum twenty years. Fine from one lakh to two lakh rupees. Section 37 of the Act, which both sides try to rely upon to establish about the offence congnizable and non-bailable reads as follows:—

“37. Offences to be congnizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in Cl. (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.”

Section 37 sub-section (b) of the Act says that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release before passing bail and where the Public Prosecutor opposes the application, Court is satisfied that there are reasonable grounds for believing that the accused are not accused of such offence and that they are not likely to commit any offence while on bail. A reading of sub-section (b)(i) and (ii) of Section 20 of the Act makes it clear that punishment relating to possession of ganja comes within 5 years and not above 5 years. Even the fine also is less than what is the maximum prescribed under Section 37 of the Act. From this it is clear that possession of ganja when compared to charas etc., is not so serious or severe. Hence, it has to be said that under Section 37 of the Act if accusation is that a person is in possession of ganja, is entitled for bail provided prosecution heard in the matter and Court comes to a conclusion that no reasonable grounds are made out so as to connect the petitioner with the offence alleged and also on a condition that in the event of release he would not jump bail or repeat the same offence.

9. Sri Jadhav contends that in view of the law laid down by the Supreme Court in the case of Kisan Lal's case* this Court is barred from entertaining applications of this nature particularly the applications relating to offences alleged to have been committed under the provisions of N.D.P.S Act. Sri Jadhav further submits that when offences fall under Sections referred to above the Court very sparingly and not in all the cases consider to allow applications filed under Section 439 as otherwise it will be encouraging anti social elements. Sri Jadhav, learned Government Pleader has taken me to the entire order. He submits that the Supreme Court has put a lid on the powers of this Court to exercise powers under Section 439 Cr. P.C

10. As far as the principles laid down in the said Decision there cannot be any quarrel because that was a case where Supreme Court had to examine powers of the High Court under Section 439 Cr. P.C and also under Section 37 of the N.D.P.S Act. That was a case where for an offence alleged under N.D.P.S Act inspite of making allegation of committing offence under N.D.P.S Act accused had been released on bail. Subsequently prosecution filed an application seeking for its cancellation. Then Supreme Court without interfering with the order granted earlier explained the scope of both Sections 439 Cr. P.C and Section 37 of the Act. Reading of Section 37 of N.D.P.S Act makes it clear that the powers conferred under Section 439 Cr. P.C regarding bail are subject to the powers conferred under Section 37 of N.D.P.S Act. For an offence punishable under Section N.D.P.S Act it cannot be considered that there is a total bar for bail. But what the N.D.P.S Act says is that a person accused of an offence punishable for imprisonment for a term of 5 years or more his request will be considered only when the Public Prosecutor has an opportunity to oppose such an application and secondly when the Public Prosecutor opposes such an application the Court is satisfied that on the material collected there are reasonable grounds to believe that the person against whom accusation is made is not guilty of such offence and thirdly in case of release he is not likely to commit any offence. For those offences punishable under Section 37 of N.D.P.S Act discretionary power given to the Court to order release of a person more rigorous and to be used very cautiously, unlike order to release a person on bail by exercising the power under Section 439 Cr. P.C Release under N.D.P.S Act based on conditions mentioned in Section 37 of the Act apart from other factors, including the paramount consideration like in case of release whether the accused will flee from justice or does he make an attempt to tamper with the prosecution evidence. The discretionary power conferred under Section 439 Cr. P.C is subject to the limitations imposed under Section 37 of N.D.P.S Act.

11. This Court from the material made available has come to a conclusion that there are reasonable grounds for believing that the petitioners are not guilty of the offences alleged. The averments made in the complaint are extracted above. The offences, according to the prosecution, are punishable under Sections 17, 18, 21 and 22 and not under Section 20 of the Act. There is no explanation in the complaint or from the statements of other witnesses whether the house which was raided by the police on the date in question consisted of only these two persons or also the other members of the family. When prosecution says that the ganja was seized from the house of the petitioners, it could also have explained that who were in possession of ganja, whether these two petitioners or other persons who were staying in the house. Since all these questions are of doubtful in nature and whose correctness or veracity can be ascertained only when regular evidence is led in, I think this Court can hold at this stage that prosecution has not made out a case so as to connect the petitioners that they were in exclusive possession of ganja seized on 31.7.91 Hence, the first ingredient of Section 30(b)(2) has been explained.

12. Now, the second ingredient viz., if the petitioners are released on bail, would they commit any offence during such bail period. The assurance given by the petitioners is that they would not tamper the prosecution evidence and would not commit any offences. This is the only offence alleged against them. Apart from this, if stringent conditions are imposed, the chances of petitioners making attempt to tamper with the evidence would be avoided. Further, in case, the prosecution feels that inspite of release the petitioners, they have once again involved in similar activities, that itself is a good ground for seeking cancellation or modification of bail. Hence, in my view this is a fit case where the petitioners are entitled for bail on their executing a bond for Rs. 10,000/- each and with two sureties for the like sum.

The petitioners shall appear before the Ganthikeri Police Station of Hubli City every day between 7 a.m and 9 p.m

In case any one of the conditions are violated by the petitioners, the prosecution will be at liberty to seek for the modification or cancellation of the bail.