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 3rd DAY OF DECEMBER 2022
Crl.Misc.No.11519/2022
Petitioner :
(accused No.1)
Ansar Basha @ B.D. Basha, S/o
Basha, aged about 26 years, R/at
Parvath nagar, Indlabele road,
Attibele Town, Anekal Taluk.
(By Sri Y.H., Adv.)
V/S.

Respondent :
State by Attibele PS
(By Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.383/2022
of
Attibele PS., registered for the offences punishable U/Sec.20(b)
of N.D.P.S. Act.

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2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is very innocent and law abiding
citizen.

He has not committed any offence much less the
offence as alleged. He has no knowledge of alleged crime and
falsely implanted at the instance of extraneous elements. The
mandatory provisions U/s.50 of NDPS Act has not been
complied.

There are no eye witnesses who speak about the
sale of alleged contraband. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. 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. He has no bad antecedents. He is the sole
bread earner of his family. Hence, sought to grant bail.

3. The objection raised by the prosecution is that the
investigating agency has seized 130 grams of ganja from the
possession of petitioner herein. The petitioner is found to be in
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possession of narcotic drug. A detailed mahazar is drawn in
the spot. Personal search is conducted. The offence alleged
against
the
petitioner
is
punishable
with
rigorous
imprisonment for a term which shall extend upto 1 year. There
is a primafacie case available against the petitioner. He is an
habitual drug dealer.

In the event of grant of bail, he would
abscond and may hamper the investigation. Hence, sought to
reject the bail plea of 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:
Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
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REASONS
7. POINT NO.1:н A report submitted by PSI of Attibele
PS., who is the complainant in this case. The contents of the
report is as here under:н
a) That on 15.10.2022 at about 4.00 p.m., when the
complainant was in the station he has received a credible
information that near Patalamma Kunte, Sharada School on
Indlabele Road, Attibele Town, the accused person was selling
the contraband ganja illegally. On receipt of the information he
has
informed to his higher officer, obtained permission and
thereafter, he along with his staff and panchas went to the
spot and apprehended the accused.

On personal search he
has seized 130 grams of ganja. A detail seizure panchanama
was drawn. Thereafter, he has prepared a detail report which
is the basis to register the case against the accused in
Cr.No.383/2022 for the offences punishable U/Sec.20(b) of
N.D.P.S. Act.

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8. It is argued by the learned counsel for petitioner that
he is planted in the case by the complainant police he is
unaware of seized drug. 130 grams of ganja is seized from the
possession of the petitioner is a small quantity.

The
mandatory provisions of Sec.41, 42, 50, 52 and 47 of the Act
are not complied.

He is permanent resident of the address
given in the cause title. In the event of grant of bail he is ready
to abide by the conditions which are being imposed by this
court.

9. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
upto 1 year.

Ganja seized from the possession of this
petitioner is small quantity. In the event of grant of bail he is
going to abscond and may hamper investigation.

10.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency
seized
130
grams
of
ganja
under
the
seizure
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panchanama.

The petitioner is in judicial custody since the
date of his arrest i.e., from 15.10.2022.

On looking to the
seizure panchanama the drugs seized is weighing 130 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 130 grams which is
a small quantity. As per the decision of Hon’ble Apex Court
reported in 2018 11 SCC 488 Birbal Prasad Vs., State of
Bihar wherein it is held that:
Ss.37 and 20 Ц Bail Ц grant of Ц non commercial quantity Ц
quantity involved being only 14 Kgs., of ganja, which is a
non commercial quantity appellant accused not involved in
any other case Ц in above circumstances, held, appellant
should be released on bail, pending trial Ц hence, directions
issued to release appellant on bail, on certain conditions.

The said case law aptly applies to the case on hand in holding
that the contraband seized in the case on hand is small
quantity and it is not commercial quantity.

In the said
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circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.

What is the
connecting link between the present petitioner and other
accused no material produced at this stage.

11.

Here in this case the drugs seized by the
investigating agency to the tune of 130 grams of ganja which is
a small 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 petition under regular statues
normal, unless the prosecution points towards exceptional
circumstances.

The major portion of investigation in the case
is concluded as the incriminatory article is already seized. The
offence alleged against the petitioner is not punishable with
death or imprisonment for life. Further custodial interrogation
is not warranted.

As per the information provided by the
petitioner he is permanently residing in the address shown in
the cause title. The apprehension of the prosecution that he
may abscond and may protract the trial could be compensated
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by imposing stringent conditions. In the result, I answer the
point for consideration in the affirmative.
12. Point No.2:н
In the result, I proceed to pass
following:
ORDER
The Petition filed by the petitioner U/Sec.439
of Cr.P.C is hereby allowed.
The petitioner is enlarged on bail on executing
personal bond for a sum of Rs.50,000/н with one
surety for the like sum with following conditions.
1. He shall not leave the jurisdiction of this
court without prior permission.
2. He shall not tamper the witness or
abscond.
3. He shall not commit similar offence or
any offence while on bail.
4. He shall furnish his photo ID proof and
photo ID proof of his sureties.

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5.

Breach of any of the conditions by the
petitioner would entail cancellation of
bail.

[Dictated to the Judgment Writer, directly on the computer, typed and
computerised by him, corrected, signed and then pronounced by me in
Open Court on this the 3rd day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
SK/*