IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU.
CCH.33.
PRESENT:
SMT. B.S. JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS),
BENGALURU.
DATED: THIS THE 11th DAY OF SEPTEMBER 2023
Crl.Misc.No.8219/2023
Petitioner :
(accused No.4)
Abdul Rehaman @ Ajju
S/o Showkatha Ali, Aged 32 Years,
R/at 64, 3rd Cross, Janakiram
layout, New Lingarajapuram,
Bengaluru,
(By Sri Chandranna N , Adv.)
V/S.

Respondent :
State by D J Halli PS
(By Public Prosecutor)
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
is filed by the petitioner to enlarge him on bail, in
Cr.No.38/2023 of D J Halli PS registered for the offence
punishable U/Sec.20(b)(ii)(B) of NDPS Act.

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2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is very innocent and law abiding
citizen. He has not committed any offence much less the
offence as alleged.

He has no knowledge of alleged crime
and falsely implanted at the instance of extraneous
elements.

The mandatory provisions U/s.50 of NDPS Act
has not been complied.

There are no eye witnesses who
speak about the sale of alleged contraband.

Though the
alleged offence is non bailable, but is neither punishable
with imprisonment for life or death sentence. The petitioner
is ready and willing to abide by any conditions imposed by
this court in the event of grant of bail. He is ready to offer
surety for his due appearance before this court. He has no
bad antecedents. He is the sole bread earner of his family.
Hence, sought to grant bail.

3. The objection raised by the prosecution is that the
investigating agency has in all seized 405 Kgs., of grams of
ganja from the possession of the accused persons.

The
accused is found to be in possession of narcotic substance.

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Crl.Misc.No.8219/2023
3
A detailed mahazar is drawn in the spot. Personal search is
conducted. The offence alleged against the petitioner is
punishable with rigorous imprisonment for a term which
shall extend upto 10 years. There is a primafacie case
available against the petitioner.

He is an habitual drug
dealer. In the event of grant of bail, he would abscond and
may hamper the investigation. Hence, sought to reject the
bail plea of petitioner.

4. Heard the arguments of both sides and perused the
records.
5. The points that arise for my consideration are as
here under:
1. Whether petitioner has made out
sufficient grounds to enlarge him on
bail?
2. What order?

6. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order for the following:
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REASONS
7. POINT NO.1:- PSI D J Halli is the complainant in
the case. On 15.02.2023 at about 7.00 am., when the
complainant Police was on duty in the station, he has
received a credible information through the informer that
one person is selling Ganja near Edga ground, Tannary
road, Bangalore. On receipt of information he has informed
the matter to higher officer obtained permission to conduct
raid. He along with staffs and panchas had been to the spot
and mounted surveillance, at that time they saw a person
holding plastic cover. The said person was surrounded and
apprehended. On enquiry he has revealed his name as
Nawaz Baigh. When the contents of cover were questioned
he has stated that he is possessing Ganja. The said Ganja
was weighed. The weight of the Ganja came around 2 Kgs.,
500 grams. Accused No.1 has stated that he has purchased
ganja from one Firoz khan and prasad of vysak and he is
selling to the public. Complainant has prepared a report. He
has drawn a detail mahazar in the spot and accused was
arrested, a report was submitted before the station house
officer which is the basis to register the case against the
accused No.1 to 3 in Cr.No.38/2023 for the offence
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CCH-33
Crl.Misc.No.8219/2023
punishable U/s.20(b)(ii)(B) of NDPS Act. He was arrested
and produced before the court and was remanded to JC. On
the voluntary statement of the accused on 16.2.2023 the
complainant further seized 1 Kg., 80 grams from the house
of accused No.1.
Basing on the voluntary statement of accused No.1 the
complainant has assigned his staff to apprehend other
accused who are involved in the crime on 27.2.2023. While
they were mounting surveillance near Vyalikaval society
three persons were found carrying huge bags at about 6.15
pm. On suspension they were surrounded and questioned,
one person has said his name is Abdu Reaman @ Aijju and
he has procured contraband from one Firoz Khan and
Prasad of Vysak.

He has also stated that the other two
persons who were with him ran away from the spot on
looking the police.

He has shown the ganja bags to the
police, they were nearly 12 bags of ganja when the said bags
were checked and weighed the weight of the ganja came
around 405 Kgs.

The said ganja was seized under a
mahazar, accused was arrested.

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8. It is argued by the learned counsel for petitioner
that he is planted in the case by the complainant police he
is unaware of seized drug. The seized article is not
commercial quantity. The mandatory provisions of search
and seizure are not complied. He is permanent resident of
the address given in the cause title. In the event of grant of
bail he is ready to abide by the conditions which are being
imposed by this court.
9. It is argued by the prosecution that the petitioner
has committed heinous offence 405 Kgs., of ganja is seized
from the petitioner and other accused.

The offence is
punishable with imprisonment upto 10 years and with fine.
There are prima-facie material available against him.

10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
15.2.2023
complainant
has
conducted
raid
and
apprehended the petitioner. On looking to the seizure
panchanama the drugs seized from the petitioner is
weighing 405 Kgs., of ganja. As per specification of small
and commercial quantity of narcotic drug or psychotropic
substance issued by Ministry of Finance Department of
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CCH-33
Crl.Misc.No.8219/2023
Revenue Notification S.O.1055(E) dated 19.10.2001 at
Sl.No.55 the narcotic drug-ganja 1000 grams is small
quantity and 20 Kgs., is commercial quantity. In this case
the quantum of ganja seized is 450 Kgs., of ganja is
commercial quantity.

The petitioner herein is shown as
accused No.4 in the case.
11. The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic
drugs and psychotropic substances.

At this stage, it is
necessary for me to refer to the judgment of Hon’ble Apex
Court in Crl. Appeal No.1043/2021 dated 22.9.2021 in
the case Union of India through NCB., Lucknow Vs.,
Mohammed Nawaz Khan wherein the NCB., Lucknow has
challenged the order of grant of bail to the accused by the
Hon’ble High Court of Allahabad, Lucknow Bench. In the
said case the Hon’ble Apex Court pleased to make a detail
discussion on the criteria to be considered for grant of bail
when the accused is prosecuted under the provisions of
NDPS Act.

At para-20 of the judgment the Hon’ble Apex
Court pleased to note that
Уthe High Court and this court are required to apply
while granting bail is whether there are reasonable
8
grounds to believe that the accused has not committed an
offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb the
menace of drug-trafficking in the country, stringent
parameters for the grant of bail under the NDPS Act have
been prescribed. In the present case, the High Court
while granting bail to the respondent adverted to two
circumstances, namely (i) absence of recovery of the
contraband from the possession of the respondent and (ii)
the wrong name in the endorsement of translation of the
statement under Section 67 of the NDPS Act. As regards
to the finding of Hon’ble High Court regarding absence of
recovery of the contraband from the possession of the
respondent, we note that in Union of India v. Rattan
Mallik, a two-judge Bench of this Court cancelled the bail
of an accused and reversed the finding of the High Court,
which had held that as the contraband (heroin) was
recovered from a specially made cavity above the cabin of
a truck, no contraband was found in the СpossessionТ of
the accused. The Court observed that merely making a
finding on the possession of the contraband did not fulfill
the parameters of Section 37(1)(b) and there was nonapplication of mind by the High Court. In line with the
decision of this Court in Rattan Mallik (supra), we are of
the view that a finding of the absence of possession of
the contraband on the person of the respondent by the
High Court in the impugned order does not absolve it of
the level of scrutiny required under Section 37(1)(b)(ii) of
the NDPS Act.Ф
Further in regard to non compliance of the procedure
laid U/s.42 of NDPS Act, it is held by the Hon’ble Apex
Court that it is a question of fact. Further, at Para-30 the
Hon’ble Apex Court pleased to make the following essential
elements ought to have been considered by the Hon’ble High
Court of Lucknow.

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CCH-33
Crl.Misc.No.8219/2023
(i) The respondent was traveling in the vehicle all the
way from Dimapur in Nagaland to Rampur in
Uttar Pradesh with the co-accused;
(ii) The complaint notes that the CDR analysis of the
mobile number used by the respondent indicates
that the respondent was in regular touch with the
other accused persons who were known to him;
(iii) The quantity of contraband found in the vehicle is
of a commercial quantity; and
(iv) The contraband was concealed in the vehicle in
which the respondent was traveling with the coaccused.

By making a detail observation in granting the bail to the
accused is incorrect and has set aside the impugned order.

The aforesaid recent judgment of Hon’ble Apex Court
clearly highlights on the aspect that what are all the
circumstances to be considered and has to be evaluated by
the court to consider the bail plea of the accused.
In the recent judgment of NCB V/s Mohit Agarwal in
Crl.A.1001-1002 of 2022, dated 19.07.2022 in the said case
the appellant NCB being aggrieved by the order of post
arrest grant of bail to the accused by the HonТble High Court
of Delhi has impugned order of bail before the HonТble Apex
Court. In the said case HonТble Apex court on appreciating
10
the various parameters of grant of bail at para 18 of the
order has observed has hereunder:
УIn our opinion the narrow parameters of bail available
under Section 37 of the Act, have not been satisfied in the
facts of the instant case. At this stage, it is not safe to
conclude
that
the
respondent
has
successfully
demonstrated that there are reasonable grounds to believe
that he is not guilty of the offence alleged against him, for
him to have been admitted to bail. The length of the period
of his custody or the fact that the charge-sheet has been
filed and the trial has commenced are by themselves not
considerations that can be treated as persuasive grounds
for granting relief to the respondent under Section 37 of the
NDPS Act.Ф
In the said case accused is prosecuted for the offences
punishable U/s.8, 22 and 29 of NDPS Act. Accused No.1
and 2 were apprehended and 20 Kgs of Tramadol tablets
were seized. During follow up action basing on the
disclosure statement, raiding team proceeded to the godown
of pramod jaipuria and conducted a search during which a
cache of drugs covered under the NDPS Act, were recovered.
The said drugs included 6,64,940 tablets of different
psychotropic substances including Tramadol, Zolpidem and
Alprazolam tablets/capsules weighing around 328.82 Kgs,
CCH-33
Crl.Misc.No.8219/2023
11
1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex
Syrup bottles weighing 8 ltrs. Another 9,900 tablets
weighing 990 gms. were recovered during the search
conducted by the NCB officials at the premises of the coaccused, Manoj Kumar at Ludhiana. In the said case the
accused has been granted bail by HonТble High Court which
has been held to be incorrect it is observed further that the
length of the period of custody of a accused or the fact that
the charge
sheet has
been
filed
and the
trial has
commenced are by themselves not considerations that can
be treated as persuasive grounds for granting relief to the
respondent under Section 37 of the NDPS Act.
In the recent judgment of Hon’ble Apex Court in the
case of State of Kerala Vs., Rajesh in (2020) 12 SCC 122
it is observed that:Уreasonable groundsФ means something more than
prima
facie
grounds.

It
contemplates
substantial
probable causes for believing that the accused is not
guilty of the alleged offence. The reasonable belief
contemplated in the provision requires existence of such
facts and circumstances as are sufficient in themselves
to justify satisfaction that the accused is not guilty of the
alleged offence. In the case on hand, the High Court
seems to have completely overlooked the underlying
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object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time
being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is
indeed uncalled for.

Further the Hon’ble Apex Court in the case of State of
MP Vs.,
Kajad
reported
in
2001(7)SCC
673
while
considering an appeal against an order of the High Court
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under sub-clause (ii) of clause (b) of Section
37(1). For granting the bail the court must, on the basis of
the record produced before it, be satisfied that there are
reasonable grounds for believing that the petitioner is not
guilty of the offences with which he is charged and further
that he is not likely to commit any offence while on bail. It
has further to be noticed that the conditions for granting
the bail, specified in clause (b) of sub-section (1) of Section
37 are in addition to the limitations provided under the
Code of Criminal Procedure or any other law for the time
being in force regulating the grant of bail. Liberal approach
in the matter of bail under the Act is uncalled for.Ф
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:-
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CCH-33
Crl.Misc.No.8219/2023
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioner is not
guilty of such offence and that he is not likely to commit
any offence while on bail alone will entitle him to a bail. In
the present case, the petitioner attempted to secure bail on
various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)
(b) of the Act. At this stage of the case all that could be
seen is whether the statements made on behalf of the
prosecution witnesses, if believable, would result in
conviction of the petitioner or not. At this juncture, we
cannot say that the petitioner is not guilty of the offence if
the allegations made in the charge are established. Nor
can we say that the evidence having not been completely
adduced before the Court that there are no grounds to hold
that he is not guilty of such offence. The other aspect to be
borne in mind is that the liberty of a citizen has got to be
balanced with the interest of the society. In cases where
narcotic drugs and psychotropic substances are involved,
the petitioner would indulge in activities which are lethal to
the society. Therefore, it would certainly be in the interest
of the society to keep such persons behind bars during the
pendency of the proceedings before the court, and the
validity of Section 37(1)(b) having been upheld, we cannot
take any other view.”
As per the enunciation of law in the aforesaid dictums’ it is
clear that no person shall be granted bail unless the two
conditions are satisfied, i.e., the satisfaction
of the court
that there are reasonable grounds for believing that the
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petitioner is not guilty and that he is not likely to commit
any offence while on bail. In this case, in all 405 Kgs., of
ganja seized from the petitioner herein and other Accused.
At this stage, there is prima-facie material available against
the petitioner in regard to the possession of narcotic drug.
This court has already rejected the bail plea of petitioner in
Cr.Misc.2835/2023 dt.1.04.2023. The learned counsel for
petitioner has failed to place any addl., material before this
court that he was not in possession of NDPS article at the
time of his apprehension and search. In the result, I proceed
to hold that the petitioner herein has not made out any
grounds to entertain his plea for bail. Accordingly, I answer
point No.1 in the negative.

13. Point No.2:- In the result, I proceed to pass following:
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CCH-33
Crl.Misc.No.8219/2023
ORDER
The petition filed by the petitioner U/Sec.439 of
Cr.P.C is hereby rejected.
[Dictated to the stenographer, directly on the computer, typed and
computerized by her, corrected, signed and then pronounced by me
in Open Court on this the 11th day of September 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*