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 JANUARY 2023
Crl. Misc.No.12524/2022
Petitioner :
(accused No.3)
Adesh Jaiswal, S/o.Rakesh Biswal,
21 years, No.17/1, Near Deepa
Nursing home, Marathahalli,
Bengaluru.
(By Sri BRJM, Adv.)
V/S.

Respondent :
State by Marathahalli Police
(By Public Prosecutor)
ORDER
The petitioner has filed this petition U/Sec.439 of
Cr.P.C., to enlarge him on bail, in Crime No.290/2022 of
Marathahalli
Police
Station
registered
for
the
punishable U/Section 20(ii)(b), 22(c), 8(c) of NDPS Act.

offences
2
2. The prevalent grounds urged seeking bail:н
That the petitioner is very innocent and law abiding
citizen.

He has not committed any offence much less the
offence as alleged.

He has been falsely implicated by the
respondent in this case.

Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. The procedure contemplated under N.D.P.S.
Act not followed while recovery. The quantum of ganja seized
from the present petitioner is 1 Kg., 100 grams which is
intermediary in nature.
there in the report.

The description of the place is not
The complainant has not noticed any
person who were buying ganja from petitioner by paying
money. He is the sole bread earner of the family. Petitioner is
permanent resident of the address shown in the cause title.
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.
Hence, sought to grant bail.

3
CCHн33
Crl.Misc.12524/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 2 Kgs., 300 grams of ganja,
11 Grams of MDMA seized is a commercial quantity. The said
offences are punishable with rigorous imprisonment for a term
which shall not be less than 10 years which may extend to 20
years and shall also be liable to fine.

The investigation is
pending. If the petitioner is granted bail he may tamper with
the prosecution witnesses. He may involve himself in similar
offences.

Investigating agency by complying the provisions
prevailed under the act has seized the contraband from the
petitioner. The petitioner herein would sell the drugs to the
younger generation which may ruin the career of younger
generation. With these specific pleas sought to reject the bail
plea of the petitioner.

4. Heard the arguments of both sides and perused the
records.

5. The points that arise for my consideration are as here
under:
4
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:
REASONS
7. POINT NO.1:н The PSI of Marathahalli PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:н
On 7.12.2022 at 10.30 am., when the complainant PSI
was discharging duties in the station he has received credible
information that at Manikanta Bakery, 1st cross, Marathahalli
some persons are selling prohibited ganja and MDMA crystal
to the public secretly. On receipt of information he has made a
note in the office register, obtained permission from the higher
officer. He along with staff and panchas had been to the place
where the said suspected persons were carrying the trade of
contraband.

When he has been to the spot, three persons
CCHн33
Crl.Misc.12524/2022
5
were found therein. On enquiry they have revealed their names
and address as Syed Mohammed Hilal, Wasim Akram and
Adesh Jaiswal. On further enquiry they have stated that they
are doing the trade of contraband. They have purchased
contraband from their friends Sonu, Kadil, Isamil, Tarbesh
who are residing at HAL, Vibuthipura and Rameshnagar for
lesser price. During personal search accused No.1 is found in
possession of 1 Kg., 200 grams, accused No.2 is found in
possession of 11 grams of MDMA and accused No.3 is found in
possession of 1 Kg., 100 grams of ganja.

The contraband
which was found in the possession of accused Nos.1 to 3 were
seized under a detail mahazar. Accused were arrested. The
complainant PI., has prepared a detail report and submitted
before SHO., Marathahalli PS., which is the basis to register
the case against the accused Nos.1 to 3 in Cr.No.290/2022 of
Marathahalli
PS
registered
for
the
offence
punishable
U/Sec.8(c), 22(c), 20(ii)(b) of NDPS Act. Thereafter the accused
were produced before jurisdictional Magistrate and was
remanded to JC. The present petitioner is accused No.3 in the
case.

6
8. It is vehemently argued by the learned counsel for the
petitioner that IO., has not followed the mandatory provisions
of search and seizure. The quantum of ganja seized from the
present petitioner is 1 Kg., 100 grams which is intermediary in
nature. The description of the place is not there in the report.
The complainant has not noticed any person who were buying
ganja from petitioner by paying money. He is the sole bread
earner of the family.
case.

The
major
He has been falsely implanted in the
portion
of
investigation
Custodial interrogation is not warranted.

is
concluded.

He is entitled for
bail.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and it is punishable with RI upto
20 years. The petitioner may involve in similar offence, if he is
released on bail. There are primaнfacie material available
against him.

10.

On
careful
analysis
of
rival
contentions,
the
investigating agency seized 2 Kgs., 300 grams of ganja and 11
grams of MDMA under the seizure panchanama. As per
7
CCHн33
Crl.Misc.12524/2022
specification of small and commercial quantity of narcotic drug
or psychotropic substance issued by Ministry of Finance
Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at at Sl.No.134 the narcotic drug Ц MDMA
weighing 10 grams is a commercial quantity. In the present
case 11 grams of MDMA seized is commercial quantity. The
contention of the petitioner that the petitioner is in JC, the
major portion of investigation is concluded and his further
detention is not warranted is unsustainable, as the material
available on record indicates involvement of present petitioner
in the crime as he is found in possession of contraband. The
seized contraband has been shown in the detail mahazar. As
per the investigation papers, the investigation is in progress.
The petitioner herein was found in the company of accused
Nos.1 and 2. At the instance of accused Nos.1 & 3 н 2 Kgs.,
300 grams of ganja is seized, at the instance of accused No.1 н
11 grams of MDMA was seized. The seizure was affected when
accused Nos.1 to 3 were together. The joint possession of
contraband has to be taken into consideration.

When the
seizure is affected accused Nos,.1 to 3 were together and the
8
total seizure of contraband from them includes seizure of
MDMA and ganja.
quantity.

MDMA seized in the case is commercial
Therefore, the contention of learned counsel for
petitioner to consider independent seizure would not be
entertained.

11.

The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. 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 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.

9
CCHн33
Crl.Misc.12524/2022
Further in the judgment of 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 subнclause (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 subнsection (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 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,
10
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 paraн20 of the judgment
the Hon’ble Apex Court pleased to note that:н
the High Court and this court are required to apply while
granting bail is whether there are reasonable 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 drugн
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 twoнjudge
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 nonнapplication 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
11
CCHн33
Crl.Misc.12524/2022
does not absolve it of the level of scrutiny required under
Section 37(1)(b)(ii) of the NDPS Act.

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 Paraн30 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.
(i) The respondent was traveling in the vehicle all the way
from Dimapur in Nagaland to Rampur in Uttar Pradesh
with the coнaccused;
(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 coнaccused.

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
12
be considered and has to be evaluated by the court to consider
the bail plea of the accused.
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:н
“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 afore said 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
13
CCHн33
Crl.Misc.12524/2022
there are reasonable grounds for believing that the petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, 11 grams of MDMA seized from the
conscious possession of the petitioner herein.

At this stage,
there is prima facie material available against the petitioner in
regard to possessing the contraband at the time of his
apprehension. He was found in the company of accused Nos.1
and 2. The total recovery of contraband ion the case is MDMA
11 grams and 2 Kgs., 300 grams of ganja. MDMA seized in the
case is commercial quantity. The learned counsel for petitioner
has failed to place any material before this court that he was
not doing the trade of contraband 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.
12. Point No.2:н In the result, I proceed to pass following:
14
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
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 11th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.