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: THE 19TH DAY OF DECEMBER 2022
Crl.Misc.No.11853/2022
Petitioner :
(accused No.7)
Ashwini.H, D/o.Harishankar, a/a 28
years, R/at No.50/7(5)3, Samarpana
Residency-2, Opp Vivek Engineering
Works, Shantinagara, Mangaluru565015
(By Sri Abhimanyu Devaiah, Adv.)
V/S.

Respondent :
State by Byadarahalli PS
(By Public Prosecutor)
O R DE R
The present petition U/Sec.438 of Cr.P.C., is filed by
the petitioner to enlarge her on bail, in the event of her
arrest in Crime No.224/2021 (Spl.CC No.1876/2021), of
Byadrahalli PS., registered for the offences punishable
U/Sections. 8(c), 21(c), 22(c), 27(a), 2-(ii)(b), 23(c)
N.D.P.S.,Act.

of
2
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is very innocent and law abiding
citizen. She has not committed any offence much less the
offence as alleged. She has no knowledge of alleged crime
and falsely implanted at the instance of extraneous
elements.

accused No.8 has already been enlarged on
anticipatory bail in Crl.Petition No.6381/2021 vide order
dated 24.2.2022.

No contraband is recovered from the
present petitioner. The reason for arraying accused No.8 is
similar to the reasons as to how the petitioner is arrayed as
an accused in the case. The petitioner herein is the friend of
accused No.6.

There is an apprehension that during the
course of investigation she might be falsely taken into
custody. Therefore, she has sought anticipatory bail.
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.

She is ready to offer surety for her due appearance
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CCH-33
Crl.Misc.No.11853/2022
before this court. She has no bad antecedents. She is the
sole bread earner of her family. Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the petitioner is required for the purpose of
investigation. She is involved in the crime. 207 grams of
MDMA
and 1.67 grams of LSD
is seized from the other
accused in the case. There is prima-facie case against the
petitioner. In the event of grant of bail, she will continue the
profession of narcotic drug selling, and she may abscond
and tamper evidence of the prosecution. 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 her on
anticipatory 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:-
The
complainant
police
have
prosecuted the petitioner in Cr.No.224/2021 of Byadarahalli
PS., registered for the offences punishable U/Sec.8(c), 21(c),
22(c), 27(a), 2-(ii)(b), 23(c) of N.D.P.S.
on 22.06.2021, at about 1.00 pm, complainant received
credible information
that, near East West college in a
famous PG, of the said PG in 1 st Floor No.11 Room, 5 people
are having contra Banned drugs trying to sell the contra
banned drugs to the known persons. Therefore, complainant
forwarded the information to his superior officer, secured
panchas
and
staff
members
went
to
the
spot
and
apprehended the accused persons. On search they seized
207 grams of MDMA
and 1.67 grams of LSD
from the
accused person. They drew panchanama, arrested the
accused and produced before Magistrate and remanded to
judicial custody.

Investigation is completed and charge
sheet has been submitted and case is stood for trial.

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CCH-33
Crl.Misc.No.11853/2022
8. It is vehemently argued by the learned counsel for
the petitioner that accused No.8 has already been enlarged
on anticipatory bail in Crl.Petition No.6381/2021 vide order
dated 24.2.2022.

No contraband is recovered from the
present petitioner. The reason for arraying accused No.8 is
similar to the reasons as to how the petitioner is arrayed as
an accused in the case. The petitioner herein is the friend of
accused No.6.

there is a apprehension that during the
course of investigation she might be falsely taken into
custody. Hence, she has filed the present bail petition. She
is not a broker or dealer of contraband. She is no way
connected to the drugs which were seized in the case. The
investigation in the case is concluded and charge sheet is
filed. Custodial interrogation is not warranted.

She 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 she is released on bail.
available against her.

There are primaнfacie material
6
10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 170 grams of MDMA under the seizure
panchanama from accused Nos.1 to 3. 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 at Sl.No.134 the narcotic drug Ц MDMA
weighing 10 grams is a commercial quantity. In the present
case 170 grams of MDMA narcotic substance is seized
which is a commercial quantity from A1 to A3. They have
purchased it from A4 and accused No.5.

The petitioner
herein is shown as absconding in the charge sheet. As per
the allegation in the investigation papers accused No.6 who
is also an absconding accused along with the present
petitioner is doing the drug peddling from Himachal
Pradesh. The present petitioner along with Danush Kumar
Kochandi had sent drugs through courier by stating the
wrong addresses to the accused who are prosecuted in this
CCH-33
Crl.Misc.No.11853/2022
7
case.

Further, in the voluntary statement of the accused
No.1 to 5 herein they have revealed that they have sent
money to the present petitioner and Rainomilito D’ouza
through online transaction.

As per the instructions of
accused No.6 they were delivering the drugs to the
customers. They have also given the mobile phone No., of
accused No.6 and the present petitioner and accused No.7.
the petitioner herein is prosecuted in the case basing on the
voluntary statement of accused Nos.1 to 6, huge quantum of
contraband is recovered at the instance of accused Nos.1 to
6.

they have stated the role of present petitioner and
accused No.6. since the date of registration of the case the
present petitioner is absconding.

She has not appeared
before the IO./, for the purpose of investigation. If she is no
way connected to the case, she would not have absconded.
The investigating agency has shown the present petitioner
as absconding g in the charge sheet. The present petitioner
is known to the other accused.
purpose of investigation.

She is required for the
The source of procurement of
drugs as per the say of accused in the case is through
8
accused No.6 and the present petitioner. It is a matter to be
investigated.

The petitioner herein is seeking the extra
ordinary relief of anticipatory bail. The Hon’ble Apex Court
in the case of Satpal Singh was pleaded to hold that when a
person is facing serious charges of doing drug trafficking of
commercial quantity, the court would not have granted
anticipatory bail to them.

12. In the said dictum (Satpal Singh Vs., State of Punjab)
in 2018 SAR (Criminal) 623 the Hon’ble Apex Court was
pleased to hold that when a person is found to be in illegal
possession of contraband of commercial quantity, the Court
would not have granted anticipatory bail to the accused.
Further the Hon’ble High Court could not have passed order
U/s.438 or 439 of Cr.P.C., without reference to Sec.37 of
NDPS Act and without entering a finding on the required
level of satisfaction in case the court was otherwise inclined
to grant the bail.
13.

In the recent judgment of Hon’ble Apex Court
reported in Nathu Singh and Ompal Singh vs., state of UP
CCH-33
Crl.Misc.No.11853/2022
9
and
others
in
Crl.Appeal
No.522/2021
(SLP.Crimes
Crl.2096/2021) dated 28.5.2021 the Hon’ble Apex Court
while dismissing an anticipatory bail plea held that courts
have been enshrined with discretionary powers for deciding
anticipatory bail pleas. However, such discretionary power
cannot be exercised in an untrammeled manner. The court
must take into account the statutory scheme U/s.438 of
Cr.P.C., particularly, the proviso to sec.438(1) Cr.P.C., and
balance
the
complainant
concerns
and
the
of
the
society
investigating
at
large
agency,
with
the
concerns/interest of the applicant. Therefore, such an order
must necessarily be narrowly tailored to protect the interest
of applicant while taking into consideration the concerns of
the investigating authority.

Such an order must be a
reasoned one.
In the case of MP and another vs., Ramkishan
Bolithya and another reported in 1995 SCC 3 221 the
Hon’ble Apex Court held that getting anticipatory bail
cannot be considered as a fundamental right mentioned
under article 21 of the Indian constitution.

10
Further in the case of Susheel Agrawal and others Vs.,
State byNCB of Delhi and another Spl.L.P(Crl Nos.7281н
7282/2017 dated 29.1.2020. The Hon’ble Apex Court while
answering the reference was pleased to laid down several
guidelines to be kept in the mind of courts which dealing
with 438 Cr.P.C., applications. One of the guideline is court
ought to be generally guided by considerations such as the
nature and gravity of the offences, the role attributed to the
applicant and the facts of the case, while considering
whether to grant anticipatory bail or refuse it. Whether to
grant or not is a matter of discretion; equally whether and if
so, what kind of special conditions are to be imposed (or not
imposed) are dependent on facts of the case, and subject to
the discretion of the court.

14. 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.,
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CCH-33
Crl.Misc.No.11853/2022
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
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 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
12
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
15. 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;
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CCH-33
Crl.Misc.No.11853/2022
(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 coн
accused.

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.

16. On going through the material placed on record
by the investigating agency, at this stage, there are serious
allegations against the present petitioner that she is
involved in drug trafficking and she has close acquaintance
with accused Nos.6 and other accused. There is financial
transactions between them in regard to drug trafficking.

14
Further, contraband seized in this case at the instance of
accused Nos.1 to 5 is 207 grams of MDMA and 1.67 grams
of LSD which is commercial quantity.

Herein in his case,
the petitioner is claiming the extra ordinary relief of
anticipatory bail.

At this stage, the investigation papers
available on record indicate that there are prima facie
reasonable grounds to believe that the petitioner is
involved in drug trafficking along with absconding accused
No.6 and accused Nos.1 to 5.

therefore, I am of the
opinion that the petitioner herein is not entitled for
anticipatory bail. Accordingly, points for consideration are
answered in the negative.

13. Point No.2:-
In the result, I proceed to pass
following:
ORDER
The petition filed by the petitioner U/Sec.438
of Cr.P.C is hereby rejected.

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Crl.Misc.No.11853/2022
[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 19th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*