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 29th DAY OF AUGUST 2023
Crl. Misc.No.7761/2023
Petitioner :
(accused )
Bharath Avinash S/o Jayaraman,
Aged 25 Years, R/at No.97A, Big
Street, Keelottivakkam Village,
Walajabad taluk, Kanchipuram,
Tamilnadu-631605,
Presently R/at No.2297, 2nd Main
Nanjareddy Colony, J B Nagar,
Bengaluru-560017
(By Sri. Vishwanath K S , Adv.)
V/S.

Respondent :
State by N C B
(By Spl Public Prosecutor)
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed
by
the
petitioner
to
enlarge
him
on
bail,
in
Cr.No.48/1/25/2023 of NCB, BZU., registered for the
offences punishable U/Sec. 8(c) 22(c),27,28 of N.D.P.S. Act.

2
2. The prevalent grounds urged seeking bail:That the petitioner is very innocent and law abiding
citizen. He has not committed any offence much less the
offence as alleged. Petitioner is in no way connected to the
seized LSD. From the postal parcel the investigating agency
said to have seized 11 blots weighing 0.10 grams of LSD. As
per the case of the complainant, the seizure of above
substance is not a commercial quantity and therefore, the
restrictive provisions of bail U/s.37 of NDPS Act is not
applicable and there is no embargo to release the petitioner
on bail. As per the definition of Sec.2(viia) of the Act, the
word commercial quantity means, any quantity greater than
the quantity specified by the notification by Central Govt., is
commercial quantity. As per Sec.2(xxiiia) of the Act, small
quantity is defined as any quantity lesser than the quantity
specified by the notification by Central Govt. the Hon’ble
High Court in Crl.petition No.849/2013 in order dated
21.3.2013 had discussed that commercial quantity should
be greater than the specified quantity that is it should be
more than 0.1 grams and not mere or upto 0.1 gram is
commercial quantity. He is a young person working in an IT
CCH-33
Crl.Misc.7761/2023
3
company in Bangalore and he is not having any criminal
antecedents.

He has to take care of his parents. He is
permanent resident of Tamil Nadu presently working in
Bangalore having deep roots in the society. 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. There are no reasonable grounds to believe that
the petitioner has committed the alleged offences. 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 on 20.06.2023 at about 11.15 hours
has received information from some reliable source about
one shipment with article Nos.ET586713659IN which was
shipped from Consignor Global Wisdom Centre, No.32/6,
Manjeshwari
colony,
Girinagar,
Kovimedu,
Coimbatore
addressed to consignee Barath Avinash, 2297, 2nd Main
road, Nanja Reddy colony, Jeevanbimanagar, Bengaluru is
4
suspected to concealed with drug i.e., LSD is lying at
Vimanapura post office, Bangalore.
and 0.10 grams of
LSD
Raid was conducted
is seized from the parcel.

The
contraband seized is a commercial quantity. There are
sufficient materials available against the petitioner and the
said offences are punishable with rigorous imprisonment for
a term which shall extend to 20 years and shall also be
liable to fine. The investigation is pending. In the event of
his release 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. With these
specific pleas sought to reject the bail plea of the petitioner.
4. Heard learned counsel for the petitioner and the
prosecution.
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
CCH-33
Crl.Misc.7761/2023
5
Point No.2: As per the final order for the
following:
REASONS
7. POINT NO.1:- The IO., N C B., Bangalore has put
the criminal law into motion.

The gist of the allegation
reads as here under:On 20.06.2023 at about 11.15 hours the IO has
received information from some reliable source about one
shipment
with
article
shipped from Consignor
Nos.ET586713659IN
which
was
Global Wisdom Centre, No.32/6,
Manjeshwarhy colony, Girinagar, Kovimedu, Coimatore
addressed to consignee Barath Avinash, 2297, 2nd Main
road, Nanja Reddy colony, Jeevanbimanagar, Bengaluru is
suspected to concealed with drug i.e., LSD is lying at
Vimanapura post office, Bangalore.

He has reduced the
information in writing and put up before Superintendent,
after taking his consent, constituted a team and he along
with his team reached the spot with DD kit. The said parcel
was scrutinized and on physical check when it was opened
it was containing LSD.

It was tested with DD kit it gave
positive result for the presence of LSD which comes under
6
psychotropic substance and the weight of which came
around 0.10 grams of LSD. He has drawn a detail
panchanama
and
a
case
in
Cr.No.48/1/25/2023
is
registered against the accused for the offences punishable
U/Sec. 8(c) 22(c),27,28 of N.D.P.S. Act.
During the follow up action, the house of one Barath
Avinash the consignee was searched after obtaining search
authorities on 20.6.2023. The said Barath was summoned
to NCB office on the said date.

During the house search
proceedings, dummy parcel was seized which was received
by Barath Avinash. On enquiry about the parcel booked by
Barath the petitioner herein he has stated that he has
booked the said parcel. His statement came to be recorded
on 20.6.2023. Basing on his statement and recovery he has
been arrested, produced before the court and remanded to
J.C.
8. It is vehemently argued by the learned counsel for
the petitioner that the seized substance of 0.10 grams of
LSD is below commercial quantity.

He is a young person
working in an IT company in Bangalore and he is not having
any criminal antecedents.

He has to take care of his
CCH-33
Crl.Misc.7761/2023
7
parents. He is permanent resident of Tamil Nadu presently
working in Bangalore having deep roots in the society.

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 prima-facie material
available against him.

10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
20.06.2023
complainant
apprehended
accused.

has
On
conducted
looking
to
raid
the
and
seizure
panchanama the drugs seized from petitioner is weighing
0.10 Grams of
LSD. 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.133 the narcotic drug-LSD 0.002 grams is small
quantity and 0.1 gram is commercial quantity.

As per
sec.2(viia) commercial quantity in regard to narcotic drugs
and psychotropic substances means any quantity greater
8
than the quantity specified by the central govt., by
notification in the official gazetteer. In this case as per the
table referred above, 0.1 grams of LSD is a commercial
quantity, if we look into section 2(viia) any quantity greater
than the quantity specified in the central govt., notification
should have to be treated as commercial quantity. In view
of sec.2(viia) the 0.10 grams of LSD which is seized in the
present case could not be termed as commercial quantity.
Anything equal or less than 1 is gram as gram signifies
singularity. Hence it should be 0.1 gram. 0.1 gram is equal
to 0.10 gram.

That apart, the unreported decision of
Hon’ble High Court in Crl.Petition No.849/2013 in the case
of Ashley Braison D Souza Vs., State of Karnataka
dt.21.3.2013 wherein it is discussed as here under:У2. The Notification issued under the NDPS Act, in item
No.133 defines the small quantity as У0.002Ф and
commercial quantity as У0.1 gramФ. The LSD paper
found with the petitioner is not a commercial quantity.
The MDMA powder found with the petitioner falls under
item No.138 of the Notification. 10 grams is shown to
be commercial quantity but the definition of commercial
quantity under Sec.2(viia) declares that any quantity
grater than the quantity specified by the Central
government by Notification is the official Gazette.
3. In view of the definition, it has to be held that
possession of MDMA powder of 10 grams cannot be
considered as commercial quantity. in that view of the
matter, Section 37 of the NDPS Act would not apply.
Accordingly, petition is allowed.Ф
9
CCH-33
Crl.Misc.7761/2023
Further in the decision reported in 2015 SCC online
Ori 361 in Anil Kumar Das Vs., State of Orissa wherein
it is observed:Even though in column No.6 the table under the heading
of commercial quantity, 20 Kg., has been mentioned but
in view of clause (viia) of Section 2 of the NDPS Act, 20
Kg., of ganja will not come within the definition of
Уcommercial quantityФ. commercial quantity in respect
of ganja is to be greater than the quantity specified in
the aforesaid notification which would mean any
quantity more than/bigger than/larger than 20 kg.

On looking to the aforesaid judgment of Hon’ble High Courts
and on looking to Sec.2(viia) of NDPS Act where the
commercial quantity has been described as the narcotic
substance which is greater than the quantity specified by
the notification of central govt., in the official gazette. The
NDPS substance seized in the present case is 0.10 grams of
LSD could not be termed as commercial quantity.
11. The petitioner herein are in judicial custody since
the date of arrest. The major portion of the investigation is
concluded. Further custodial interrogation is not warranted
in the circumstances of the case. Recovery is already made.
On looking to the nature and gravity of allegations leveled
against the petitioner if by imposing stringent conditions he
10
is enlarged on bail it would not in any way hamper the
investigation. In the result, I proceed to answer the point
No.1 in the affirmative.

12. Point No.2:-
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.1,00,000/- with two sureties for the like
sum with following conditions.
1.

The petitioner 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
abscond.

4.

He shall co-operate
investigation.

5.

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

6.

He shall furnish his photo ID proof and
photo ID proof of his sureties.

7.

He shall appear before the court on all
hearing dates.

not
tamper
the
with
witness
I.O
or
for
11
8.

CCH-33
Crl.Misc.7761/2023
Breach of any of the conditions by the
petitioner would entail cancellation of bail.

[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 29th day of August 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*