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.12569/2022
Petitioner :
(accused No.1)
Amar Mohammed, S/o.Abdel Mageed
Ibrahim, 22 years r/at.No.26, I floor,
2nd Cross, Vinayaka Nagar, near ICICI
ATM, 5th Stage, T Muniyappa layout,
Bengaluru 560 078.
(By Sri SKJ., Adv.)
V/S.

Respondent :
State by Banaswadi 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.569/2022 of
Banaswadi
Police
Station
punishable
U/Section
8(c)
registered
&
22(c)
for
the
of
N.D.P.S.

R/w.Sec.14 of Foreigners Act.
2. The prevalent grounds urged seeking bail:н
offences
Act
2
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.

The arrest notice is issued on
9.12.2022 whereas the accused is arrested on 8.12.2022.
IO has not taken the signature of the accused on any of the
documents to show that MDMA is seized from his custody,.
The petitioner is staying in India on valid VISA and
therefore, sec.14 of Foreigners Act does not apply.

The
search and seizure is not in accordance with law.

No
independent witnesses were present at the time of search
and seizure. 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 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 50 grams of MDMA which
CCHн33
Crl.Misc.12569/2022
3
is a commercial quantity from accused No.1.

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:
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:
4
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 Banaswadi PS., has put
the criminal law into motion.

The gist of the allegation
reads as here under:н
On
8.12.2022
at
about
12.30
pm.,
when
the
complainant PI., was in the CCB office he has received
credible information that near Sukhsagar Hotel, auto stand,
3rd cross, Ramya layout, Kammanahalli, Banaswadi, one
African citizen carrying a bag containing MDMA crystal and
he is selling it to the public. He has noted the information
in information book, obtained permission of higher officer to
conduct raid. He along with panchas and staff had been to
the spot.

There he has found the said suspect.

apprehended and questioned.

He was
On enquiry he has revealed
his name as Amar Mohammad s/o.Abdul Mazeed Ibrahim.
He has come to India on Student VISA and he is residing in
a rented house at T Muniyappa layout, JP Nagar, Bangalore.
He is owning a green colour Bullet vehicle. He has
purchased contraband from Nigerians who are residing in
India and he is selling it to the public. During search of the
CCHн33
Crl.Misc.12569/2022
5
accused 50 grams of prohibited MDMA is recovered. The
contraband is weighed and seized.
drawn
A detail mahazar is
in the spot. The accused was arrested. The
complainant PI., submitted a report before the Banaswadi
PS.

Basing on the report, case in Cr.No.569/2022 is
registered against the accused for the offences punishable
U/s.8(c), 22(c) of NDPS Act and Sec.14 of Foreigners Act.
The accused are produced before the Court and remanded
to JC.
8. It is vehemently argued by the learned counsel for
the petitioner that the petitioner herein has been falsely
implanted in the case. IO has not followed the arrest
procedures. The arrest notice is issued on 9.12.2022
whereas the accused is arrested on 8.12.2022. IO has not
taken the signature of the accused on any of the documents
to show that MDMA is seized from his custody.

The
petitioner is staying in India on valid VISA and therefore,
sec.14 of Foreigners Act does not apply.

The search and
seizure is not in accordance with law.

No independent
witnesses were present at the time of search and seizure.
The IO., has seized the article on 8.12.2022 at 12.30 noon
6
where as the case is registered on 8.12.2022 at 7.00 pm. It
is further argued that there are no reasonable grounds to
believe that petitioner is guilty of the offence and in the
event of grant of bail he is ready to offer solvent surety of his
due appearance before this court.
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 50 grams of MDMA under the
seizure panchanama. As per 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
Sl.No.134 the narcotic drug Ц MDMA weighing 10 grams is a
commercial quantity. In the present case narcotic substance
MDMA weighing in all 50 grams seized is a commercial
quantity. The contention of the petitioner that the petitioner
CCHн33
Crl.Misc.12569/2022
7
is in JC, the major portion of investigation is concluded and
his further detention is not warranted is unsustainable, the
petitioner herein is apprehended with commercial quantity
of contraband by the investigating agency.

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.

8
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
9
Allahabad, Lucknow Bench.
Apex Court
CCHн33
Crl.Misc.12569/2022
In the said case the Hon’ble
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 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 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
10
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
11
CCHн33
Crl.Misc.12569/2022
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 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
12
petitioner is not guilty and that he is not likely to commit
any offence while on bail. In this case, 50 grams of MDMA
seized from the petitioner. At this stage, there is primafacie
material available against the petitioner in regard to the
possession of narcotic drug. The learned counsel for
petitioner has failed to place any material before this court
that he was not in possession of NDPS article at the time of
his apprehension and search. The contention raised by the
learned
counsel
for
the
petitioner
that
there
is
no
compliance of arrest procedure is without any basis for the
reason that accused was apprehended at his house, brought
to the Police Station and thereafter he was arrested. That
apart during personal search of accused contraband is
recovered, a detail mahazar has been drawn in the spot
indicating
the
seizure
of
contraband.

Therefore,
the
contention of learned counsel for petitioner that there are no
reasonable belief that accused is involved in drug trafficking
is without any basis. 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
12. Point No.2:н
following:
CCHн33
Crl.Misc.12569/2022
In the result, I proceed to pass
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.