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 12th DAY OF DECEMBER 2022
Crl. Misc.No.11619/2022
Petitioners :
(accused No.1 & 2)
1. Dilawar Hussain, S/o.Yaku Ali,
a/a 30 years, R/at No.21,
Bethel Layout, 2nd Cross,
Langford Road, Shanthinagar,
Bengaluruн560027.

2. Radhika Sehrai, D/o.Ashok
Sehrai, a/a 29 years, R/at
No.304, 3rd Floor, Maithri
Opulence, 6th A Main,
G.M.Palya, New Thippasandra,
Bengaluruн560075
(By Sri Syed Muzakkair Ahmed, Adv.)
V/S.
Respondent :
State by NCB ., Bangalore
(By Spl.Public Prosecutor)
2
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners
to
enlarge
them
on
bail,
in
Cr.No.NCB
F
No.48/1/28/2022/BZU registered for the offences punishable
U/Sec.8(c), 20(b)(ii)(A), 21(b), 22(b), 22(c), 23, 25, 27A, 28 and
29 of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:н
The petitioners herein are innocent of commission of
offences and have been falsely implicated in the case. The
respondent NCB officers have not received any information
about storage of contraband in the house of petitioner No.2
herein.

They have falsely implanted the petitioners herein.

They were detained illegally in NCB office. The petitioner No.1
has not booked the parcel. Nothing is seized from the
petitioners. The alleged recovery is shown from the flat which
is used by accused No.3. Petitioners Nos.1 and 2 are friends
they have never consumed contraband nor in possession of the
same. There is material to connect petitioner No.2 in the case
except the voluntary statements. The mandatory provisions of
3
CCHн33
Crl.Misc.11619/2021
search and seizure has not been complied. The petitioners are
permanent residents of Bangalore. The petitioner No.1 is
working as Consultant in a private company. The petitioner
No.2 is an employee working in Think Free Media House at
Benson town, Bangalore having deep roots in the society. They
have no criminal antecedents. They are ready to offer sureties
for their due appearance before the court and would abide by
the conditions of bail.

Hence, sought to entertain the bail
petition.

3. The objection raised by the prosecution to the bail
application of the petitioner is as hereunder:н
Based on the secret information received on 21.11.2022
it has come to the knowledge of IO., NCB that one person by
name Dilwar Hussain and his girl friend Radhika and her room
mate Nivedita has kept substantial quantity of various drugs
like LSD, cocaine, ganja, at their flat located at flat No.304, 3 rd
floor, Maithri Opulence, 6th A main, GM Palya, Bangalore North
New Thippasandra, Bangalore. Basing on the information
4
house search of the said premises is conducted on 22.11.2022.
During search operation, 0.29 grams of LSD, 2.22 grams of
cocaine, 2.14 grams of amphetamine, 6.18 grams of hashish,
101 grams of ganja is seized. Consequent to the seizure, the
three inmates were present in the house i.e., Dilawar Hussain,
Radhika Sehrai, Nivedita Jaishankar were summoned to NCB
office, their statements came to be recorded. Basing on their
statements and about conscious possession of contraband
they were arrested on 23.11.2022. The seizure was made
before independent witnesses.

Based on the information
gathered during NCB custody and in the voluntary statement
of petitioner No.1 herein made on 23.11.2022 it had come to
the knowledge of NCB that narcotic drugs was lying in UPS
Express Pvt., ltd.

Acting upon the information the IO NCB
seized 34 grams of ganja in a follow up action on 28.11.2022.
The said seizure is made basing on the statement of petitioner
No.1 herein. The investigation is in progress. In the event of
grant of bail, they may abscond
and may hamper the
investigation. There is a primafacie case available against the
petitioners. In the event of grant of bail, they would abscond
5
CCHн33
Crl.Misc.11619/2021
and may hamper the investigation. 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:
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: In the Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:н A report submitted by IO., NCB., who is
the complainant in this case. The contents of the report is as
here under:н
Based on the secret information received on 21.11.2022
it has come to the knowledge of IO., NCB that one person by
6
name Dilawar Hussain and his girl friend Radhika and her
room mate Nivedita has kept substantial quantity of various
drugs like LSD, cocaine, ganja, at their flat located at flat
No.304, 3rd floor, Maithri Opulence, 6th A main, GM Palya,
Bangalore North New Thippasandra, Bangalore. Basing on the
information house search of the said premises is conducted on
22.11.2022. during search operation, 0.29 grams of LSD, 2.22
grams of cocaine, 2.14 grams of amphetamine, 6.18 grams of
hashish, 101 grams of ganja is seized.

Consequent to the
seizure the three inmates present in the house i.e., Dilawar
Hussain,
Radhika
Sehrai,
Nivedita
Jaishankar
were
summoned to NCB office, their statements came to be
recorded.

Basing on their statements and about conscious
possession of contraband they were arrested on 23.11.2022.
Based on the information gathered during NCB custody and
in the voluntary statement of petitioner No.1 herein made on
23.11.2022 it had come to the knowledge of NCB that narcotic
drugs was lying in UPS Express Pvt., ltd.

Acting upon the
information, the IO NCB has seized 34 grams of ganja in a
follow up action on 28.11.2022.

The said seizure is made
CCHн33
Crl.Misc.11619/2021
7
basing on the statement of petitioner No.1 herein. Basing on
the recovery and on the statement of accused Nos.1 to 3 they
were prosecuted in NCB Cr.No.48/1/28/2022/BZU for the
offences punishable U/s. 8(c), 20(b)(ii)(A), 21(b), 22(b), 22(c),
23, 25,27A, 28 and 29 of N.D.P.S. Act.

8.

It is argued by the prosecution that the petitioners
have committed heinous offence and it is punishable with RI
upto
20
years.

contraband.

They
are
in
conscious
The investigation is pending.

possession
of
There is a nonн
abstant clause in Sec.37 of NDPS Act and there is a clear
embargo to entertain the bail plea of accused. Thus the
accused herein are not entitled for bail as commercial
quantum of contraband is seized. The petitioners may involve
in similar offence, if they are released on bail.

There are
primaнfacie material available against them.
9.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 0.29 grams of LSD, 2.22 grams of cocaine, 2.14
grams of amphetamine, 6.18 grams of hashish, 101 grams of
8
ganja under the seizure panchanama. The petitioners are in
judicial custody since the date of their arrest i.e., from
23.11.2022. On looking to the seizure panchanama the drugs
seized is weighing 0.29 grams of LSD, 2.22 grams of cocaine,
2.14 grams of amphetamine, 6.18 grams of hashish, 101
grams of ganja. Another 34 grams of ganja is seized on
28.11.2022 basing on the statement of petitioner No.1 herein.
The recovery of contraband is from the room of petitioner No.2.
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 from the petitioner Nos.1
and 2 is 135 grams which is a small quantity. The seizure of
LSD from the room of petitioner No.2 is 0.29 grams blotter
papers which is commercial quantity. As per Sl.No.133 the
narcotic drugнLSD 0.1 grams is commercial quantity and
0.002 is small quantity. Sl.No.27 the narcotic drugнcocaine
100 is commercial quantity and 2 grams is small quantity.

CCHн33
Crl.Misc.11619/2021
9
Sl.No.23 the narcotic drugнhashish 100 grams is small
quantity and 1 Kg., is commercial quantity. Sl.No.152 the
narcotic drugнamphetamine 02 grams is small quantity and 50
grams is commercial quantity.
conducted
raid
in
the
In this case when the IO., NCB
Maithri
Opulence
flat
No.304,
Thippasandra, Bangalore in the room of petitioner No.2 н 0.29
grams of LSD, 2.22 grams of cocaine, 2.14 grams of
amphetamine, 6.18 grams of hashish, 109 grams of ganja are
seized. From the room of accused No.3 н 16 grams of ganja is
seizedн who is residing in a separate room. After apprehension
of accused
No.1 another parcel of ganja weighing 34 grams
seized on 28.11.2022. the contraband seized is from the room
of accused No.2 herein where accused No.1 was also present
when the raid and seizure affected.

10. At this stage, it is necessary for me to refer to the
judgment of Hon’ble Apex Court reported in (2009) 2 Supreme
Court Cases 624 in Union of India Vs., Rattan Mallik @
Habul.

The Hon’ble Apex Court
made the following
10
observation at paraн8 to 10 of the judgment while dealing with
a bail petition in NDPS case:н
УWhile dealing with the bail application the High Court
appears to have lost sight of the mandatory requirements
of Section 37 of the NDPS Act and thus, the order is
clearly unsustainable. The broad principles which should
weigh with the Court in granting bail in a nonнbailable
offence have been enumerated in a catina of decisions of
the Supreme Court. When a prosecution/conviction is for
offence(s) under a special statute and that statute
contains specific provisions for dealing with matters
arising thereunder, these provisions cannot be ignored
while dealing with such an application. The respondent
has been convicted and sentenced for offences under the
NDPS Act and therefore, while dealing with his application
for grant of bail, in addition to the broad principles to be
applied in prosecution for offences under the Indian Penal
Code, 1860 the relevant provision in the said special
statute in this regard had to be kept in view.

The aforesaid observation of Hon’ble Apex Court which has to
be looked into while considering the bail plea of petitioners.
The Non obstinate clause in Sec.37 restricts the power of the
court in granting the bail unless the following conditions are
satisfied i.e., the Public prosecutor has been given an
11
CCHн33
Crl.Misc.11619/2021
opportunity to oppose the application for such release, and
where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that
he is not guilty of such offence and that he is not likely to
commit any offence while on bail. In this case commercial
quantity of contraband is seized from the room of accused
No.2.
11.

The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances.
Hon’ble Apex Court
In the recent judgment of
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
12
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.

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
petitioners 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 petitioners are not guilty of the
offences with which they are charged and further that they
are 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
13
CCHн33
Crl.Misc.11619/2021
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 petitioners are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners 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
petitioners or not. At this juncture, we cannot say that the
petitioners are
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 they are 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 petitioners 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.”
14
As per the enunciation of law in the afore said 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 petitioners
is not guilty and that they are not likely to commit any offence
while on bail.
Learned counsel for petitioner has referred to the order of
Hon’ble High Court passed in Crl.Petition No.1096/2019
dt.24.4.2019 (Nikil C M Vs., State) and the order of Hon’ble
High Court in WP.No.10375/2021 dated 25.6.2021 (Mohit
Baliga Vs., State). In the Crl.Petition 1096/2019 Hon’ble High
Court has granted bail to the petitioner stating that Sec.37 of
NDPS Act is not applicable to the facts of the said case. In the
said case LSD blots seized is 0.50 grams which is commercial
quantity of drug.

As per the notification No.133 Ц narcotic
drug Ц LSD 0.1 gram is commercial quantity. Therefore, with
due respect the said order cannot be made applicable to the
present case. Further more, after the arrest of accused No.1
another 34 grams of ganja booked by him is seized at his
instance.

CCHн33
Crl.Misc.11619/2021
15
In the WP.No.10375/2021 the accused has been granted
bail where the order of learned magistrate in rejecting the
statutory
bail
is
impugned.

In
the
said
facts
and
circumstances the Hon’ble High Court granted bail to the
accused.

Further, the contraband seized in the said case is
held to be more than small quantity and less than commercial
quantity.

The Hon’ble High Court considered the 167(2)
Cr.P.C., statutory bail application and it is not a regular bail
petition. The facts and circumstances in the said case differs
from the present facts hence, with due respect it may not be
made applicable to the present case. At this stage, there is
primafacie material available against the petitioners in regard
to the possession of commercial quantity of narcotic drug. The
learned counsel for petitioners have failed to place any
material before this court that the present petitioners were not
in conscious possession of contraband at the time of search
and seizure.

In the result, I proceed to hold that the
petitioners herein have not made out any grounds to entertain
their plea for bail. Accordingly, I answer point No.1 in the
negative.

16
13. Point No.2:н In the result, I proceed to pass following:
ORDER
The petition filed by the petitioners 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 12th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.