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 17th DAY OF JANUARY 2023
Crl. Misc.No.84/2023
Petitioner :
(Accused No.2)
G. Nagesh,
S/o Kondaiah,
Aged about 55 years,
Residing at No. 786,
Sidhartha Nagar,
4th Block, Jalahalli West,
Bengaluru – 560 015
(By Sri.K.T.V., Adv.)
V/S.

Respondent :
State of Karnataka by
Basavanagudi PS,
Bengaluru.
(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.212/2022 for the
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offences punishable U/Secs. 8(c) and 20(ii)(b) of N.D.P.S. Act.

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.

He has been falsely implicated by the
respondent in this case. The petitioner had no nexus with the
accused No.1. Though the alleged offences are non bailable,
but are neither punishable with imprisonment for life or death
sentence. The petitioner was arrested on 31.12.2022 The
procedure contemplated under N.D.P.S. Act not followed while
recovery. The quantity seized from the possession of the
petitioner is less than commercial quantity. 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.

CCH­33
Crl.Misc.84/2023
3
3.

The prosecution while opposing the bail petition
contended that the I.O has seized 9 kgs 850 grams of ganja
and 970 grams of Hashish oil which is a commercial quantity
from accused persons. There are sufficient material available
against the petitioner, and the said offences are punishable
with rigorous imprisonment for a term which shall not be less
than 10 years which may 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.
Incriminatory articles were seized from his custody.
involve himself in similar offences.

He may
Investigating agency by
complying the provisions prevailed under the act has seized
the contraband from the petitioner.

The petitioner herein
would sell the drugs to the younger generation which may ruin
the career of younger generation.

With these specific pleas
sought to reject the bail plea of the petitioner.

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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
Point No.2: As per the final order for the following:
REASONS
7.

POINT NO.1:­ The PSI of
put the criminal law into motion.

Basavanagudi PS., has
The gist of the allegation
reads as here under:­
On 30.12.2022 the Head Constable, Basavanagudi PS.,
was on a duty to trace the accused persons of that case and
drug peddlers.

When he was on patrolling duty at Gandhi
Bazar, APS College, VV Road, RV Road, M.D Block at 12.50
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CCH­33
Crl.Misc.84/2023
Noon on Ranoji Rao conservancy lane two persons came there
to sell contraband to the public. He has been to the spot at
12.55 Noon and mounted surveillance.

Two persons were
standing there in their TATA Indica Car and a two wheeler and
they were showing the contraband to the students and public.
The said persons were trying to sell the contraband to the
public, immediately, he came back to the police station,
prepared a report and submitted before PSI, Basavanagudi,
which is the basis to register the case in Cr. 202/2022 for the
offences punishable u/Sec. 8(C), 20(ii)(B) against unknown
persons.

Thereafter, he along with panchas and team had
been to the spot and found suspected persons. On enquiry,
they have revealed that, they are in possession of ganja and
Hash oil. In the back seat of Indica Car, ganja and hash oil
were found stored. When the ganja was weighed, total came
around 9 kgs 850 grams and hash oil was weighing 970
grams. The entire contraband were seized under the mahazar.
Accused were arrested, produced before the court along with a
detail report. They remanded to JC. The present petitioner is
accused No.2 in the case.

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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. The seized article is not commercial
quantity. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent residents 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. It is argued by the prosecution that the petitioner has
committed heinous offence 9 kgs 850 grams of ganja and 970
grams of Hashish oil is seized from the petitioner and other
accused. The offence punishable with imprisonment upto 10
years and with fine. There are prima­facie material available
against them.

10.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
30.12.2022 complainant has conducted raid and apprehended
accused.

On looking to the seizure panchanama the drugs
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CCH­33
Crl.Misc.84/2023
seized from the present petitioner initially is weighing 9 kgs
850 grams of ganja and 970 grams of Hashish oil. 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 drug­ganja 1000 grams is
small quantity and 20 Kgs., is commercial quantity.

In this
case the quantum of ganja seized is 9 kgs 850 grams of ganja
which is an intermediate quantity.

As per Sl.No.23 the
narcotic drug­Hashish100 grams is small quantity and 1 Kg.,
is commercial quantity.

In this case the quantum of ganja
seized is 9 kgs 850 grams of ganja, Hashish seized is 970
grams which is an intermediate 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 – Bail – grant of – non commercial quantity –
quantity involved being only 14 Kgs., of ganja, which is a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
should be released on bail, pending trial – hence, directions
issued to release appellant on bail, on certain conditions.

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The said case law aptly applies to the case on hand in holding
that the contraband seized in the case on hand is intermediate
quantity and it is not commercial quantity. In the said
circumstances, as per the observations of Hon’ble Apex Court
the bail plea of accused to be considered.

11.

Here in this case the drugs seized by the
investigating agency to the tune of 9 kgs 850 grams of ganja
and 970 grams of Hashish oil which is an 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.

12.

The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life.

Further
CCH­33
Crl.Misc.84/2023
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custodial
interrogation
is
not
warranted.

His
Voluntary
statement is already recorded. 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 by imposing stringent conditions. In the result, I
answer the point for consideration in the affirmative.
13. 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.

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3.

He shall not tamper the witness or abscond.

4.

He
shall
co­operate
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
petitioner 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 17th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.