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 29 th DAY OF JUNE 2022
Crl.Misc.No.6007/2022
Petitioner :
(accused No.5)
Harsha, S/o.Mahadeva, 27 years,
R/at.Samruddhi Nilaya, 2nd Cross,
Durgaparameshwari layout,l
Rajarajeshwarinagar, Bengaluru 560
098.
(By Sri SHK., Adv.)
V/S.
Respondent :
State by K.S Layout PS
(By Public Prosecutor)
OR D E R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail in Cr.No.171/2022 of K.S
Layout PS., registered for the offences punishable U/Sec.8(c),
22(c), 27(a) and 20(ii) B of NDPS Act.
2
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is 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. Basing on
the
voluntary
statement
of
accused
Nos.1
and
respondent police arrested accused Nos.3 and 5.
2
the
From
accused No.5 they have seized 30 grams of Hash oil, 130
grams of ganja and 50 small bottles. Basing on the statement
of accused No.5, accused No.6 is apprehended and from his
possession 4 Kgs., 100 grams of ganja and 15 grams of MDMA
is seized. 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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CCH-33
Crl.Misc.No.6007/2022
3. The objection raised by the prosecution is that
the
investigating agency has seized 5 Kgs., of ganja, 260 grams of
hashish oil, 2 LSD strips weighing 0.19 grams, 30 grams of
hash oil, 130 grams of ganja and 15 grams of MDMA from the
possession of the accused Nos.1, 2, 5 & 6.
He is doing the
trade of drug with the other accused. the investigation is
pending.
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 Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- A report submitted by PI., CCB., who is
the complainant in this case before the K.S Layout PS. The
contents of the report is here under:On
22.05.2022,
at
about
11.00
am.,
when
the
complainant was in the station he has received credible
information that two persons are possessing contraband
illegally
at
Kumaraswamy
house
No.312/C,
Layout,
75 th
Bangalore.
cross,
On
1st
receipt
Stage,
of
the
information he has informed to his higher officer, obtained
permission and thereafter, he along with his staff and panchas
has been to the spot and found the suspected persons. He has
apprehended them and on enquiry they have revealed their
names i.e., Surendra and Rajesh accused Nos.1 and 2. On
conducting raid of the house they seized 5 Kgs.,of ganja, 250
CCH-33
Crl.Misc.No.6007/2022
5
grams of hashish oil, 20 LSD strips weighing 0.19 grams. A
detail seizure panchanama was drawn.
It is revealed on
interrogation of accused Nos.1 and 2 that they have purchased
contraband from accused Nos.3 to 5. Thereafter, he has
prepared a detail report and submitted before the SHO, which
is the basis to register the case against the accused No.1 to 5
in Cr.No.171/2022 for the offences punishable U/s.8(1), 22(c),
27(a) and 20(ii)(B) of NDPS Act. Accused No.1 and 2 were
arrested and were produced before the court and remanded to
judicial custody. During the voluntary statement of accused
Nos.1 and 2 have revealed about the role of accused Nos.3 to
6.
The allegation against the accused No.6 is he is having
acquaintance with one Fayas and used to purchase MDMA
from him for lesser price. He has also purchased ganja from
one Narasimha of Andhra Pradesh.
The accused No.5 is in
possession of 30 grams of hash oil and 130 grams of ganja. He
has shown the house of accused No.6 Sudarshan from him 15
grams of MDMA and 4 Kgs., 100 grams of ganja was seized.
Accused No.5 is arrested on 7.6.2022 and produced before
6
Magistrate and taken for police custody and thereafter he was
remanded to judicial custody.
8. The prosecution has produced the case diary of the
case and the voluntary statement of accused Nos.1 & 2, 5 and
6. The financial transaction between the accused No.4 and
other accused through on line and continuous acquaintance of
accused
No.6
with
other
accused
is
collected
by
the
investigating agency. The said information noted in the case
diary is submitted to this Court in a sealed cover by the
instigation officer.
Further, it is argued that in the case of
present nature where the accused is involved in drug
trafficking, his plea for Bail would not be entertained.
With
this material objection he has sought to reject the Bail plea.
9. It is argued by the learned counsel for petitioner that
he is planted in the case by the complainant he is unaware of
seized drug. Therefore, NDPS Act is not applicable. He has
relied on the judgment of Hon’ble High Court of Judicature
at Bombay in Crl.Bail Application (Stamp) No.2386/2020
CCH-33
Crl.Misc.No.6007/2022
7
dated 7.10.2020 in the case of Rhea Chakraborty Vs.,
Union of India in support of his contention that petitioner
may be enlarged on bail as there is no material available
against the present petitioner.
I have carefully gone through the judgment referred by the
learned
counsel
for
the
petitioner.
The
facts
and
circumstances of the above case is different from the present
facts. Hence, with due respect, it may not be made applicable
to the case on hand.
He has also referred to the judgment of Hon’ble High
Court of Madhya Pradesh reported in 1993 Crl.L.J.3342
in the case of Sundaresan @ Meganathan @ Mega Vs.,
State. In the said case, the Hon’ble High Court has granted
bail to the petitioner looking to the facts and circumstances of
the case. Further the accused in the said case is prosecuted
U/s.20(b)(i) of NDPS Act. In this case the petitioner herein has
been prosecuted along with other accused for financing the
drug business and for possessing the contraband ans also
conspired with other accused in relation to the drug trafficking
8
business. Therefore, the said judgment, with due respect, may
not be made applicable to the present case.
He has also referred to the judgment of Hon’ble High
Court of Gujarat reported in 1993 Crl.L.J. 3473 in the
case of Sardarsingh Nagsingh Rajput (Sisodia) and others
Vs., State of Gujarat, wherein the Hon’ble High Court held
that when the investigating agency has not filed the charge
sheet within the statutory period, the accused has to be
enlarged on bail. Here in the present case, statutory period to
file the charge sheet is not completed.
Hence, the said
judgment, with due respect, may not be made applicable to the
present case.
10. On going through the materials available on record,
as per the investigation papers, initially accused Nos.1 and 2
were apprehended in their house with 5 Kgs., of ganja, 250
grams of hashish oil, 20 LSD strips. Thereafter, accused No.3,
4, 5 and 6 were apprehended at the instance of accused No.6,
4 Kgs., 100 grams of ganja and 15 grams of M.D.M.A is
9
CCH-33
Crl.Misc.No.6007/2022
recovered. At the instance of accused No.5/present petitioner
130 grams of ganja, 30 grams of hashish oil is recovered. The
LSD strips seized in the case is 0.19 grams which is
commercial quantity.
In the case diary the detail report of
seizure and voluntary statement of accused Nos.1, 2, 5 & 6 is
furnished.
11.
On looking to the voluntary statement of accused
No.1 before the investigating agency he has made allegation
against accused No.4 that he got acquainted with him in the
year 2019 as he was running a juice shop in Kumaraswamy
Layout.
When he has met with accident in the year 2021
accused No.4 has given hospital expenses. At that time,
accused No.1 has given his account details and credit card to
the accused No.4. Accused No.4 has informed him that he is
going to transfer amount which he has acquired out of sale of
drugs to his account. He has also impressed accused No.1 that
drug business is a lucrative one and he used to purchase
drugs from one Fayaz who is also having name as Mohith.
Petitioner used to purchase drugs from Fayaz @ Dabar @
10
Mohit. On several occasions he had conversed with accused
No.1 through mobile as well as through whatsapp calls. They
were doing drug business together and were sharing the
amount and were sharing the profits accrued out of it.
Accused No.1 also got acquainted with accused No.2 and was
doing drug business with him. He has given the details of the
amount transferred to the accounts which has been given by
accused No.4 and the said amount is pertaining to the drug
business. Accused No.5 has revealed that he is a consumer of
drug and used to purchase it from accused No.1 & 2. Accused
No.6 in his statement has stated that he has given contraband
to accused No.5 on several occasions. In the voluntary
statement of accused No.5 he has stated that he is consuming
ganja since 5 years. He used to purchase ganja and hash oil
from accused No.6 Sudarshan. Further he used to purchase
MDMA, LSD strips and hash oil from accused No.6. He used
to sell the said contraband through accused Nos.1 and 2 for
higher price.
He came to know about the arrest of accused
Nos.1 and 2 and he has concealed the contraband which was
in his possession in his wardrobe.
He has paid amount to
11
CCH-33
Crl.Misc.No.6007/2022
accused No.6 through phone pay towards purchase of
contraband.
He has also paid amount towards purchase of
drugs to accused No.2 through phone pay. At the instance of
accused Nos.1, 2, 5 & 6 contraband is recovered. On looking
to the statements of accused Nos.1 and 2 they are having
acquaintance with the accused No.5 and they are doing drug
business with the accused No.5.
Commercial quantity of
contraband recovered at the instance of accused Nos.1 and 2
and A5. The documents collected by the investigating agency
in regard to the transfer of money towards the drug business is
evident from the investigation papers which is available in the
case diary.
When huge quantum of contraband is being
purchased and sold by the accused Nos.1 and 2 along with
accused No.4 & 6, when the investigation is in progress the
plea of bail claimed by the petitioner at this stage could not be
entertained.
12. On going through the material placed on record by
the investigating agency, at this stage, there are serious
allegations against the accused No.6 that he has involved in
12
drug trafficking and financing towards purchase of drugs.
Further, contraband seized in this case is 5 Kgs., of ganja, 260
grams of hashish oil, 20 LSD strips weighing 0.19 grams and
15 grams of MDMA, 4 Kgs., 100 grams 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.134 the narcotic drug – MDMA weighing
10 grams is a commercial quantity. In the present case 15
grams of MDMA narcotic substance is seized which is a
commercial quantity. Likewise, at Sl.No.133 the narcotic drug
– LSD weighing 0.1 gram is commercial quantity.
In the
present case 0.19 grams of LSD is seized which is also
commercial quantity.
13.
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.
13
CCH-33
Crl.Misc.No.6007/2022
Appeal No.1043/2021 dated 22.9.2021 in the case Union
of India through NCB., Lucknow Vs., 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 para20 of the judgment
the Hon’ble Apex Court pleased to note that:
“the 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 drugtrafficking
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
14
regarding absence of recovery of the contraband from the
possession of the respondent, we note that in Union of India
v. Rattan Mallik, a twojudge 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 ‘possession’ 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
non
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.”
14. 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 Para30 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.
15
CCH-33
Crl.Misc.No.6007/2022
(i) The respondent was traveling in the vehicle all the
way from Dimapur in Nagaland to Rampur in Uttar
Pradesh with the coaccused;
(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 co
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.
In the recent judgment of Hon’ble Apex Court in the case
of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it is
observed that:
“reasonable grounds” means something more than prima
facie grounds. It contemplates substantial probable causes
16
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 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 the 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
petitioner under the NDPS Act has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under subclause (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 petitioner is not guilty of the
offences with which he is charged and further that he is not
likely to commit any offence while on bail. It has further to be
17
CCH-33
Crl.Misc.No.6007/2022
noticed that the conditions for granting the bail, specified in
clause (b) of subsection (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.”
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioner is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him to a bail. In the
present case, the petitioner 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
petitioner or not. At this juncture, we cannot say that the
petitioner is 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 he is not guilty of such
offence. The other aspect to be borne in mind is that the
18
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 petitioner 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.”
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 petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, in all 9 Kgs., 100 grams of ganja,
250 grams of hashish oil, 20 LSD strips weighing 0.19 grams,
15 grams of MDMA. At this stage, there is primafacie material
available against the petitioner in regard to the sale of narcotic
drug. He is doing drug trafficking along with other accused.
The investigation in the case is pending. The supplier of the
drug is yet to be apprehended. In the result, I proceed to hold
that the petitioner herein has not made out any grounds to
CCH-33
Crl.Misc.No.6007/2022
19
entertain his plea for bail. Accordingly, I answer point No.1 in
the negative.
15. 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 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 29th day of June 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*