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 7TH DAY OF DECEMBER 2022
Crl.Misc.No.11799/2022
Petitioner :
(accused No.1)
Gorli Venkatakrishna Rao, S/o Gorli
Suryanarayana, aged about 54 years,
R.at no.313115/108, Ayyanna
Colony, Narsipattanam Post,
vishakhapatnam District, Andhra
pradesh.
(By Smt.Bhagyalakshmi.S.S,Adv.)
V/S.
Respondent :
State by Bengaluru Cantonment
Railway 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.39/2022 of
2
Bengaluru Cantonment Railway PS., registered for the offence
punishable U/Sec.20(b), (ii) (C) of NDPS Act.
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.
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Crl.Misc.No.11799/2022
3
3. The objection raised by the prosecution is that the
investigating agency has in all seized 20 Kgs., of ganja from the
possession of the accused.
The accused is found to be in
possession of narcotic substance.
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 10 years.
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?
4
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 complainant herein is the PSI of
Bengaluru
Cantonment
Railway
PS.,
Bangalore.
The
complainant Psi., was instructed by CPI, Cantonment Railway
PS., to inspect the trains which were traveling from Andhra
Pradesh, Orissa, Assam to Bangalore as there is illicit
transport of ganja. As per the directions of CPI, complainant
along with his colleagues has conducted inspection of the
trains on 29.5.2022. At 11.00 am., he has been to KR Puram
Railway station along with his staff. He has inspected Train
No.17210 Kakinada Sheshadri Express when it has reached
the platform No.1. when they have seen a person in Platform
No.1 holding three bags sitting on the bench. On suspicion he
has enquired him, the said person has not given proper
answers in regard to the contents of the bag.
answering
in
Telugu
language.
When
the
He was
complainant
requested the said person to open the bag and to show the
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Crl.Misc.No.11799/2022
5
contents he has stated that the said bag contain ganja.
He
has brought the ganja from Araku of Vishakapatnam, AP. His
name is Gorli Venkatakrishna Rao S/o.Gorli Suryanarayana.
He has drawn a detail seizure panchanama in the spot.
He
has called the panchas and in the presence of panchas the bag
was opened it was containing bundles of ganja. Each bundle
was weighing two Kgs., of ganja. In all there were 10 bundles.
The total weight of ganja is 20 Kgs. The ganja, trolley bag of
accused,
reservation
tickets
were
all
seized
under
the
panchanama. Thereafter, he has prepared a detail report and
submitted before the SHO, which is the basis to register the
case against the accused in Cr.No.39/2022 for the offence
punishable U/s.20(b), (ii) (c) of NDPS Act. Accused was
arrested and produced before the learned Magistrate. He was
remanded to judicial custody.
During the voluntary statement of accused No.1 he has
revealed that he has purchased ganja from a person of
Arakumandal, Vishakapatnam and he is planning to sell the
ganja to Shek Saleem of Kolar through Shafiulla. He has
spoken to Shek Saleem over mobile phone. He has seen
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Shafiulla and he is well acquainted with him. He is also
prosecuted in another NDPS Act. In that case he was convicted
after under going the period of sentence, he is again doing the
sale of ganja. He is selling ganja for a sum of Rs.5,000/ per
Kg.
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 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 10 years.
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
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Crl.Misc.No.11799/2022
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agency
seized
panchanama.
20
Kgs.,
of
ganja
under
the
seizure
The petitioner is in judicial custody since the
date of his arrest i.e., from 29.5.2022.
On looking to the
seizure panchanama the drugs seized is weighing 20 Kgs., 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 drugganja 1000
grams is small quantity and 20 Kgs., is commercial quantity.
In this case the quantum of ganja seized is 20 Kgs.
As per
sec.2(viia) commercial quantity in regard to narcotic drugs and
psychotropic substances means any quantity greater than the
quantity specified by the central govt., by notification in the
official gazetteer. In this case as per the table referred above,
20 Kgs., of ganja 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 20 Kgs., of
ganja which is seized in the present case could not be termed
as commercial quantity. That apart, the unreported decision of
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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:
“2. The Notification issued under the NDPS Act, in item
No.133 defines the small quantity as “0.002” and
commercial quantity as “0.1 gram”. The LSD paper found
with the petitioner isnot 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.”
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 “commercial
quantity”. 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.
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Crl.Misc.No.11799/2022
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 that is 20 Kgs., of ganja
could not be termed as commercial quantity.
11. The petitioner herein is in judicial custody since the
date of arrest. Investigation is concluded and charge sheet is
filed. 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 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:
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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. 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.
5. 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 7th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*