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 5th DAY OF DECEMBER, 2022
Crl. Misc.No.11095/2022
Petitioner :
(accused No.1& 2)
1.Anas @ Prince, S/o.Usenair, 20
years, No.5, 2nd floor, Muniswmy
gowda layout, sindhi college front
road, G Ramaiah layout,
Yogeshwarnagar, Hebbala,
Bangalore North.
Permanently at Kolakkapadam
House, Kunnamkad Village,
Moolamkode post, Kizhakkenchil,
alatha Block, Palakkad District,
Kerala 678 684.
2. Mohammed Shakir,
S/o.Mohammed, 26 years,
Residing at Swathi PG., Pipeline
road, in front of Karnataka Bank,
Yeshwanthpura, Bengaluru City.
Permanently at Savanoor village
and Post, Puthuru taluk,
Dakshina Kananda district.

2
(By Sri.MKV., Adv.)
V/S.
Respondent :
State by Yeshwanthpura Police
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.356/2022 of
Yeshwanthpur Police Station registered for the offences
punishable U/Section 20(b), 22(b), 27(b) of NDPS Act and Sec
25 of ARMS Act .
2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged.

They have been falsely implicated by the
respondent in this case. Though the alleged offences are 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
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Crl.Misc.11095/2022
petitioners are ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. They are
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 5 Grams of MDMA, 1 kg.,
100 Grams of Ganja. The offences alleged against the
petitioners are punishable with rigorous imprisonment for a
term upto 20 years and shall also be liable to fine. There is a
primafacie case available against the petitioners. They are
habitual drug dealers. There is primafacie case made out
against petitioners. If 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:
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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: Partly in the Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:н
The PSI., Yeshwanthpur PS., is the
complainant in the case.

On 2.11.2022 at about 2.30 pm.,
when the PSI was discharging his duties in the office he has
received credible information that some persons were selling
contraband at Christ the King Church road, 90 feet road on
the footpath. Basing on the said information he has made a
note in the diary and informed to the ACP the higher officer
and obtained permission to conduct raid. He went to the spot
along with panchas and staff and mounted surveillance. Two
persons
holding
plastic
surrounded and enquired.
and addresses.

covers
came
there.

They
were
They have revealed their names
The bag of the said persons was searched.

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Crl.Misc.11095/2022
From accused No.1 in his hand they found 1.5 grams of
MDMA, from his right pant pocket found 3.5 grams of MDMA.
From accused No.2 they found 80 grams ganja, from college
bag they seized 1 Kgs., 20 grams of ganja leaves. He seized the
same under mahazar. A detail report is prepared and
submitted before the Station House officer which is the basis
to register a case
in Cr.No.356/2022 for the offences
punishable U/s.20(b) & 20(c) of NDPS Act. Thereafter accused
were arrested and produced before jurisdictional Magistrate
and remanded to judicial custody.

8. It is argued by the learned counsel for petitioners that
they are planted in the case by the complainant police they are
unaware of seized drug. The seized article is not commercial
quantity. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied. They are permanent residents
of the address given in the cause title. In the event of grant of
bail the are ready to abide by the conditions which are being
imposed by this court.

6
9.

It is argued by the prosecution that the petitioners
have committed heinous offence 05 grams of MDMA and 1
Kgs., 100 grams of ganja is seized from the petitioners. The
offence punishable with imprisonment upto 10 years and with
fine. There is primaнfacie material available against them.
10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
2.11.2022 PSI of Yeshwanthpur PS., has conducted raid and
apprehended the petitioners. On looking to the seizure
panchanama the drugs seized is weighing 05 grams of MDMA
and 1 Kg., 100 grams of ganja. 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.55
the narcotic drugнganja 1000 grams is small quantity and 20
Kgs., is commercial quantity.

In this case the quantum of
ganja seized is 1 Kg., 100 grams is intermediate quantity.
Likewise at Sl.No.134 Ц narcotic drug MDMA 0.5 grams is
small quantity and 10 grams is commercial quantity. In the
CCHн33
Crl.Misc.11095/2022
7
present case quantum of MDMA seized is 05 grams which is
an intermediate quantity.
11. In this case the investigating agency has submitted a
report stating that the petitioner No.2 herein is prosecuted in
several Crl. Cases.

He is having criminal antecedents.

The
details of the case are as hereunder:н
Cr.No.15/2021 U/s.143, 142, 148, 353, 332, 324, 307
R/w.Sec.149
IPC,
Cr.No.16/2021,
Cr.No.18/2021,
Cr.No.19/2021
of
Cr.No.17/2021,
Mangalore
Barke
PS,
Cr.No.160//2015 of Kadaba PS., Cr.No.147/2016 U/s.20(B) of
NDPS Act of Puttur Town PS., Cr.175/2020 U/s.379 IPC., of
Dakshina Kannada district and Cr.No.160/2015 U/s.392 IPC.,
of Vittla PS.
The petitioner No.2 herein is prosecuted in several IPC cases
and also in NDPS case.

The cases are pending trial.

He is
having criminal antecedents. It is well settled principal of law
that while considering the bail plea of the accused this court
has to appreciate the nature and gravity of allegations made
against the accused, severity of punishment, danger of
8
absconding if released on bail, criminal antecedents and the
facts and circumstances in each case has to be appreciated
carefully while entertaining the bail plea of each one of the
accused. The Hon’ble Apex Court in the recent judgment in
the case of State of Kerala Vs., Mahesh in Crl. Appeal
No.343/2021, (SLP.Cr.No.1530/2021) dated 19.3.2021 has
cautioned the courts against mechanically granted bail in
heinous offenses, saying the seriousness of the charge is a
basic consideration before setting an accused free on trial.
The Hon’ble Apex Court while setting aside the order of Kerala
High court bailing out a man accused of stabbing to death a 30
year old dentist in front of her father in September 2020 and in
the said case accused had gone absconding for several days
before his arrest. Though the trial court denied him bail, the
Hon’ble High Court set him at liberty. The Hon’ble Apex Court
observed that the nature of offence is one of the basic
considerations for the grant of bail more heinous is the crime,
the greater is the chance of rejection of the bail, though,
however, depending on the factual matrix of the matter.
While granting the bail court has to keep in mind not only the
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CCHн33
Crl.Misc.11095/2022
nature of accusation, but the severity of the punishment.
Other criteria include reasonable apprehensions of influence
witnesses or tampering of evidence.

It is also observed that
grant of bail is a judges discretion however, calls for exercise of
such a discretion in a judicious manner and not as a matter of
course.

Order of bail bereft of any cogent reason cannot be
sustained.
Further in another judgment of Hon’ble High Court of
Karnataka in a case Crl.Petition No.5358/2015 State of
Karnataka Vs., D.B.Sandeepa dt.3.3.2016 has observed
that mere filing of charge sheet against persons accused of
heinous offences cannot be the reason to release them on bail.
The trial courts will have to keep in mind the guidelines issued
by the Hon’ble Apex Court from time to time for examining the
nature in gravity of the offences, severity of punishment in the
event of conviction, danger of absconding if released on bail,
and facts and circumstances in each case before granting bail
to the accused. The Hon’ble High Court passed the order while
canceling the bail granted by the learned Sessions Judge.

10
In the recent judgment of Hon’ble High Court of
Karnataka in the case of Vinay Rajashekarappa Kulkarni
Vs., CBI in Crl.Petition No.2601/2021 dated 24.5.2021
while rejecting the bail plea of the accused for the offence
U./s.302 R/w.Sec.120 (B) of IPC., the Hon’ble High Court
made an observation that even if there is no primafacie
material available on record against the accused, the gravity of
offence and severity of the punishment, character, behaviour
and standing of the accused, reasonable apprehension of the
witnesses being tampered with has to be considering by
making a detailed observations on the facts of the said case
has rejected the bail plea of petitioner.
12.

Before granting bail the court should evaluate if
there is reasonable apprehension of accused tampering the
evidence or threatening the complainant.

The Hon’ble Apex
Court reemphasized on the parameters for granting bail to the
accused, while quashing the bail granted to an accused
charged with carrying out supari killing of a person in the case
Ashiyana PS., of UP, Lucknow district.

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Crl.Misc.11095/2022
13. The accused involved in heinous offence should not
be granted bail arbitrarily. As various factors like the
propensity to tamper with evidence and the plausibility of
escape should be considered before the relief is given.

The
Hon’ble Apex Court chided the order of Hon’ble Apex Court of
Calcutta in granting the bail to accused who is an accused in a
murder case.

14.

The trial courts will have to keep in mind the
guidelines issued by the Hon’ble Apex Court from time to time
for examining the nature in gravity of the offences, severity of
punishment in the event of conviction, danger of absconding if
released on bail, and facts and circumstances in each case
before granting bail to the accused.

Here in this case
petitioner No.2 herein is prosecuted in several IPC cases. The
offences alleged against him in the said cases are heinous in
nature. There are several cases pending against him. He is
also prosecuted in another NDPS case. Therefore, on looking
to the criminal antecedents of petitioner No.2, I feel he is not
entitled for bail in this case.

12
15. On the other hand, the petitioner No.1 herein is not
having any criminal antecedents. Further, drugs seized by the
investigating agency is to the tune of 1 Kg., 100 grams of ganja
and 05 grams of MDMA which are intermediate quantity.
When the quantity is less than commercial quantity, rigors of
Sec.37 of the NDPS Act will not attract, and factors become
similar to bail petitions under regular statues normal, unless
the prosecution points towards exceptional circumstances.
The petitioner No.1 if enlarged on bail it would not in any way
hamper
the
investigation
and
trial
of
the
case.

The
apprehension of the prosecution that he may abscond and may
protract the trial could be compensated by imposing stringent
conditions. In the result, I answer the point for consideration
partly in the affirmative.
16. Point No.2:н In the result, I proceed to pass following:
ORDER
The
Petition
filed
by
the
petitioner
No.2
U/Sec.439 of Cr.P.C is hereby rejected.
The
Petition
filed
by
the
petitioner
U/Sec.439 of Cr.P.C is hereby allowed.

No.1
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Crl.Misc.11095/2022
The petitioner No.1 is enlarged on bail on
executing personal bond for a sum of Rs.1,00,000/н
each with two sureties for the like sum with following
conditions.
1.

The petitioner No.1 shall give attendance
before the concerned I.O., once in a month
i.e., preferably on first Monday of every
month in between 10.00 am., to 2.00 pm.,
till filing of charge sheet or further orders
whichever is earlier.

2.

He shall not leave the jurisdiction of this
court without prior permission.

3.

He shall not tamper the witness or abscond.

4.

He
shall
coнoperate
investigation.

5.

He shall not commit similar offence or
any offence while on bail.

6.

He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties
7.

He shall appear before the court on all
hearing dates.

8.

Breach of any of the conditions by the
petitioners, would entail cancellation of bail.

with
I.O
for
[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 5th day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*