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 7th DAY OF JANUARY 2023
Crl. Misc.No.12613/2022
Petitioner :
(accused No.1)
Ajay Kumar, S/o.Bhupendar Singh,
21 years, C/o.Sriranga Residency,
site No.1, 3rd Floor, I Cross, Sai
Layout, Behind Srinivas Theatre,
Kadugodi, Bengaluru.
Native Address:
Khajedi village, Madhubani district,
Bihar State.
(By Sri NP., Adv.)
V/S.

Respondent :
State by White Field 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.377/2022 of
2
Siddapura Police Station registered for the offences punishable
U/Section 8(c), 22(c), 20(B) of N.D.P.S. Act.

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. 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. The prosecution while opposing the bail petition
contended that the I.O has seized 3 Kgs., of ganja and 0.14
grams of LSD strips seized. LSD strips is commercial quantity.

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CCHн33
Crl.Misc.12613/2022
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.
investigation is pending.

The
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:
1. Whether petitioner has made out
sufficient grounds to enlarge him on
bail?
2. What order?

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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 Whitefield PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:н
On 16.12.2022 at 10.30 am., within the limits of white
field police station in front of Med plus medical shop near 5 th
cross, Borewell Road, Dodsworth Layout, Whitefield one person
is selling prohibited contraband like LSD.

The complainant
CCB PI., who was in the office has received credible
information, made a note in the information book, informed
the matter to his higher officer and obtained permission to
conduct raid. He along with the team of officers had been to
the spot around 1.00 pm. The said person was apprehended
and on enquiry he has revealed his name as Ajay Kumar
resident of Bangalore. He is having acquaintance with one
Akelesh Yadav of Bihar who is doing drug trafficking. The said
CCHн33
Crl.Misc.12613/2022
5
Akelesh Yadav has offered him the work of doing drug peddling
and he is going to pay him Rs.40,000./н as salary. The accused
is doing the work as a Swiggy delivery boy and Zomoto delivery
boy. He is delivering food along with that he is also doing drug
trafficking. During the search of the bag which is in the hand
of accused 3 Kgs., of ganja and 12 LSD strips weighing 0.14
grams were recovered and empty plastic covers were seized. A
detail panchanama was prepared in the spot.
arrested and brought to the station.

Accused was
A detail report was
prepared and submitted before SHO which is the basis to
register the case against the accused in Cr.No.377/2022 of
Whitefield PS registered for the offences punishable U/Sec.8(c),
22(c) & 20(B) of NDPS Act.

Thereafter the accused was
produced before jurisdictional Magistrate and was remanded to
JC. The present petitioner is accused No.1 in the case.

8. It is vehemently argued by the learned counsel for the
petitioner that the quantum of contraband seized from the
present Petitioner is not commercial quantity, hence, he is
entitled for bail. Search and seizure are vitiated by inherent
6
procedural impropriety. The mandatory provisions of law have
not been followed thereby causing serious doubt on the
investigation, search and seizure procedure.

He is no way
connected to the drugs which were seized in the case. The
major
portion
of
investigation
is
concluded.

Custodial
interrogation is not warranted. 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 3 Kgs., of ganja and 0.14 grams of
LSD under the seizure panchanama. As per specification of
small
and
psychotropic
Department
commercial
substance
of
Revenue
quantity
issued
by
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 at at Sl.No.133 the narcotic drug Ц LSD weighing
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CCHн33
Crl.Misc.12613/2022
0.1 gram is a commercial quantity. In the present case 0.14
grams of LSD seized is commercial quantity. The ganja seized
in the case is intermediate 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 procuring
contraband and selling the same to public. As per the
investigation papers, the investigation is in progress.

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
8
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.

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
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CCHн33
Crl.Misc.12613/2022
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,
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
10
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
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.

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CCHн33
Crl.Misc.12613/2022
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 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
12
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 petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, 3 Kgs., of ganja and 0.14 grams of
LSD seized from the conscious possession of the petitioner
herein.

At this stage, there is primafacie material available
against the petitioner in regard to procuring contraband and
pivotal role in the sale of contraband. 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:
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CCHн33
Crl.Misc.12613/2022
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 7th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.