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 16th DAY OF SEPTEMBER 2022
Crl. Misc.No.8325/2022
Petitioners :
(accused Nos.3 to 5)
1. Ajmal, S/o Ashraf, Aged about 27
years, R/at Flat No.805, oнBlock,
Platinum
Apartments,
H.M,
Yashwanthpura, Bengaluru City
2. Ranish Lathif, S/o Abdul Latheef,
aged about 24 years, R/at Flat
No.805,
oнBlock,
Platinum
Apartments, H.M, Yashwanthpura,
Bengaluru City
3. Mohammed Shamil, S/o Ummar.M,
Aged about 24 years, R/at Flat
No.805,
oнBlock,
Platinum
Apartments, H.M, Yashwanthpura,
Bengaluru City
(By Sri Abhishek K., Adv.)
V/S.
Respondent :
State by RMC Yard Police Station.,
Bangalore.
(By Public Prosecutor)
2
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed by the petitioners to enlarge them on bail, in Crime
No.22/2022 of SHO RMC Yard Police Station registered for the
offences punishable U/Section 8(c) 22(c), 23(c), 27, 27A, 28,
29, 32 of N.D.P.S. Act,
2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are very innocent and law abiding
citizen. They have not committed any offence much less the
offences as alleged. They are 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 petitioners are permanent
residents of the address shown in the cause title. The
petitioners are ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. They are
3
CCHн33
Crl.Misc.No.8325/2022
ready to offer surety for their 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 823 grams of MDMA crystal,
2.01 grams of LSD strips from the possession of the accused
persons. The offence alleged against the petitioners are
punishable with rigorous imprisonment for a term which shall
not be less than 10 years which may extent to 20 years and
shall also be liable to fine. There is a primafacie case available
against the petitioners. they are habitual drug peddlers. If the
petitioners are released on bail, they will continue the
profession of narcotic drug selling, and they may abscond and
tamper evidence of the prosecution. Hence, sought to reject the
bail plea of petitioners.

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 petitioners have made out
sufficient grounds to enlarge them 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 gist of the allegation reads as here
under:н
The PI., of CCB., (W & N) received credible information
that within the limits of RMC Police station that at Platinum
apartment, 8th floor, flat No,.805, O block, HMT Main road,
Phase I, Yeshwanthpur some 4 persons were doing the sale of
contraband. They are selling MDMA crystals, LSD strips to the
public and IT/BT employees.

On 7.2.2022 at about 12.00
noon he has received the credible information. He has noted
the information in the register maintained in the office. He has
informed the matter to ACP and obtained permission to
conduct raid. He has also called the panchas, requested them
5
CCHн33
Crl.Misc.No.8325/2022
to be present at the time of raid. He along with staff, panchas
and investigation tools had been to the spot around 2.00 pm.
When the complainant along with the staff entered the
apartment of accused persons, accused Nos.1 to 5 were found
in the house.

On enquiry they have revealed that they got
acquitted with one Nikhil CM. He is staying at Dubai. The
said Nikhil is transacting the drug trafficking business through
Dark websites, Vikarme and he is doing transactions of Bitcoin
and other online transactions. He is doing drug trafficking in
Delhi, Goa, Gujarat by sending drugs to the customers at
Delhi Goa and Gujarat. The petitioners herein were conveying
the contraband through the customers informed by Nikhil CM.
The said Nikhil CM after the transaction is transferring the
amount to their accounts through Googlepay and through
online transactions. They were selling I grams MDMA crystal
for Rs.5,000/н and LSD strips at Rs.3,000/н. Petitioner No.1
has revealed that the amount accrued out of the selling the
drugs he has deposited in Federal Bank.

He has also
transferred the money to the account of one Serin Joseph
which is in Federal Bank. He has also given the bank account
6
details.

One parcel he has sent through India Post.

One
parcel of contraband received from Nikhil through India Post.
He has collected it. Petitioner No.2 has revealed that he used
to do the sale of drug through the courier to the customers.
The customers were paying the amount through online to their
accounts. After collecting the profits they were going to remit
the balance to Nikhil CM.

They have send the amount to
Nikhil through Googlepay.

The details of amount paid to
Nikhil is stated by them. Petitioner No.3 has also stated that
he is also doing drug trafficking by sending the contraband to
the customers through courier and post.

He is selling the
contraband to the public and IT/BT employees.

They were
apprehended and enquired. They were found in conscious
possession of 823 grams of MDMA crystals, 183 LSD strips
(2.01 grams) 6 mobile phones, electronic weighing machine,
packing materials.

The said contraband is valued at Rs.60
lakhs. After seizure of articles under the mahazar the accused
were arrested and a report is prepared by him. Basing on the
said report, he has registered a suoнmoto complaint in
Cr.No.22/2022 for the offences punishable U/s.8(c) 22(c),
CCHн33
Crl.Misc.No.8325/2022
7
23(c), 27, 27A, 28, 29, 32B (d) of N.D.P.S. Act. Accused were
produced before the court and were remanded to JC.

8.

It is the vehement contention of the accused that
accused were not arrested on 7.2.2022. In the seizure report
quantum of contraband from each one of the accused is not
specified. From Hotel Lalith the accused is arrested. A false
allegation is made against the present petitioners.
present
bail
petition
it
is
contended
further
In the
that
the
investigation in the case is concluded and charge sheet is filed.
Further detention of petitioners not warranted.

9.

The prosecution contends that under panchanama
commercial quantity of contraband is seized. The allegation of
petitioners that they were not arrested from the place of
incident as urged in the investigation papers is untenable.
Accused were in conscious possession of contraband.

The
offence alleged against them is punishable with imprisonment
upto 20 years and fine. They are not entitled for bail at this
stage when the investigation is in progress.

8
10.

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 paraн20 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 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 drugнtrafficking
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
9
CCHн33
Crl.Misc.No.8325/2022
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 nonн
application 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
11. 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;
10
(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 coн
accused.

By making a detail observation in granting the bail to the
accused are 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 persons.

12. On looking to the prosecution papers the quantum
of narcotic substance seized 823 grams of MDMA crystal, 2.01
grams of LSD strips.
commercial
quantity
As per specification of small and
of
narcotic
drug
or
psychotropic
substance issued by Ministry of Finance Department of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001
at
Sl.No.134 the narcotic drug Ц MDMA weighing 0.5 grams is
small quantity and 10 grams is a commercial quantity. In the
CCHн33
Crl.Misc.No.8325/2022
11
present case MDMA crystal seized is weighing 823 grams 2.01
grams of LSD strips is a commercial quantity. The petitioners
herein
were
contraband.

apprehended
with
commercial
quantum
of
The investigation papers available on record at
this stage primafacie indicate the monitory transaction which
took place in between the accused herein and one Nikhil C.M.,
who is not yet apprehended. The final report filed against the
accused indicating their contact with one Nikhil C.M., in drug
trafficking business.

That apart they were in possession of
contraband when raid was conducted in their house situated
at
flat
No.805,
Yeshwanthpur.

8th
floor,
Platinum
City
Apartment,
As per the dictum of Hon’ble Apex Court in
the case of Md., Nawaz Khan the court has to consider the
materials collected by the investigating agency at the time of
apprehension and immediately after the apprehension of the
accused persons.

The bank account transactions of the
present petitioners with one Nikhil C M who according to
prosecution is doing drug peddling and he is the main accused
in the case who is absconding indicates the nexus of present
petitioners with the said Nikhil. The quantum of contraband
12
seized in the case also has to be taken note of. Further, in the
case of Babua Vs., State of Orissa the Hon’ble Apex Court
made a categorical observation in cases where narcotic drugs
and psychotropic substance would involve the petitioners
would involve in activities which are lethal to the society
therefore, it would certainly be the interest of society to keep
such
persons
behind
bars
during
the
pending
of
the
proceedings before the court and the validity of Sec.37(1)(b)
had to be borne in mind.
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
primafacie 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
13
CCHн33
Crl.Misc.No.8325/2022
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 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 petitioners are not guilty of the
offences with which they are charged and further that they
are 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 dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:н
14
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioners are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners 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
petitioners or not. At this juncture, we cannot say that the
petitioners are 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 they are 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 petitioners 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
there are reasonable grounds for believing that the petitioners
are not guilty and that they are not likely to commit any
offence while on bail. Here in the present case the petitioners
were apprehended and 823 grams of MDMA crystal, 2.01
CCHн33
Crl.Misc.No.8325/2022
15
grams of LSD strips was seized from the house of present
petitioners. The quantity of the contraband is commercial
quantity.

The final report filed before the court against the
petitioners for illegal drug trafficking under the different
provisions of NDPS Act indicate their role primafacie in the
crime.

In the result, I proceed to hold that the petitioners
herein have not made out any grounds to entertain their plea
for bail. Accordingly, I answer point No.1 in the negative.

13. Point No.2:н In the result, I proceed to pass following:
ORDER
The
petition
filed
by
the
petitioners
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 16th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*