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 19th DAY OF NOVEMBER 2022
Crl.Misc.No.11119/2022
Petitioner :
(accused No.4)
Hrishikesh P Nayak, S/o.Late Pramod
V.Nayak, a/a 22 years, R/o.Flat No.A,
502, Ramanajyothi Apartments,
Yeshwanthpur Suburb, Tumkur
Road, Bengaluru
(By Sri. Balakrishna Jagtap. Adv.)
V/S.
Respondent :
State by NCB 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.NCB
F.No.48/1/24/2022/BZU of NCB PS., registered for the
2
offence punishable U/Sec. 8(c), 20(b) (ii), 23(a), 27, 28 and 29
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
complainant
has
not
seized
any
contraband
from
the
possession of the petitioner. He is the only earning member of
his family. The IO., NCB., issued summons to the petitioner.
His statement came to be recorded. Thereafter, he was
arrested.
His statement recorded after the seizure of
contraband. He is doing a private work and searching for job.
The parcel was not booked by the petitioner and he is no
manner connected to the case.
He has no knowledge about
the drugs and about the incident. He is not aware of any
persons who set to have imported the contraband from USA.
Though the alleged offence is non bailable, but is neither
CCH33
Crl.Misc.No.11119/2022
3
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.
3. The objection raised by the prosecution is that, on
04/11/2022 basing on the credible information, the IO , NCB
had seized 177 grams of hydro ganja and 7 grams of
psilocybine
mushrooms
from
2
shipments
bearing
Nos.UA935905620US and CE985425250US at Foreign Post
office, Bangalore. 35 grams of hydro ganja was seized from
shipment No.UA935905620US and 142 grams of ganja 7
grams of psilocybine mushrooms were seized from shipment
bearing No.CE985425250US.
Basing on the controlled
delivery of dummy parcel of 2 shipments the present petitioner
who had come to collect the parcel was enquired. One parcel
bearing No.CE985425250US was addressed to the present
petitioner. The petitioner was accompanied by accused No.3 to
4
collect the parcel.
Based on their statement accused Nos.1
and 2 were enquired and it is revealed that they were involved
in booking the parcels.
Basing on the statement of present
petitioner and other accused they were prosecuted in the case
for committing offences U/s. 8(c) R/w.Sec.20b(ii)(A), 22(b),
23(a)(b), 27, 28 and 29 of NDPS Act.
There is a primafacie
case available against the petitioner. 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?
6. My findings on the above points are as under:
Point No.1: In the Affirmative
CCH33
Crl.Misc.No.11119/2022
5
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:
The IO of NCB/BZU., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 04/11/2022 basing on the credible information, the
IO , NCB had seized 177 grams of hydro ganja and 7 grams of
psilocybine
mushrooms
from
2
shipments
bearing
Nos.UA935905620US and CE985425250US at Foreign Post
office, Bangalore. 35 grams of hydro ganja was seized from
shipment No.UA935905620US and 142 grams of ganja 7
grams of psilocybine mushrooms were seized from shipment
bearing No. CE985425250US. Both the shipments were sent
from Birat Sapkota, Bahunma Enterprises, 8326 N, Crawford
Street, Portland, OR 972035438 US. An authorization for the
controlled delivery of the parcels were obtained from the NCB
Headquarters, New Delhi. In this regard a case has been
registered by the IO, NCB in NCB.Cr.No.48/1/24/2022/BZU
for the offences punishable U/s.8(c) R/w.Sec.20b(ii)(A), 22(b),
6
23(a)(b), 27, 28 and 29 of NDPS Act. On 05/11/202 controlled
delivery of dummy parcels of two shipments bearing no
Nos.UA935905620US and CE985425250US were attempted
with the assistance of Foreign post office, Chamarajpet, Begur
sub post office, Bengaluru and Jalahalli post office, Bengaluru.
Both the receivers were not available at the address.
The
receiver of the shipment at Begur Praman Tiwari, Pioneer
Greenwood Apartment, Manipal country road, Singasandra,
Flat No.201, Bangalore 560068, was out of town to his native
for the death ceremony of his relative and the receiver of the
shipment
Hrishikesh
Kumar,
Raja
Industrial
Estate,
Yeshwanthpur, Block A 502, Ramana Jyothi apartment,
2GJP+85R, Bengaluru Mangaluru HWY 560022 at Jalahalli
was not available at his address.
controlled
delivery
of
the
Again on 07/11/2022
shipment
bearing
No.CE985425250US was attempted to the receiver Hrishikesh
Kumar. Two persons by name Hrishikesh P.Nayak and Suhas
Shankar had come to collect the parcel. When they were
intercepted by the NCB team and summoned to NCB office for
enquiry, two more persons Ekarya Gupta and Aadish Bohra
7
CCH33
Crl.Misc.No.11119/2022
who were involved in the booking parcels were intercepted at
CMS
Jain
University,
Lalbagh
road,
Bengaluru.
The
complainant IO served summons on them and enquired them.
During voluntary statement they have revealed that they are
consuming the contraband and they are doing the trade of
contraband.
Basing on their statement on the reasonable
belief that they are actively involved in drug trafficking, they
were apprehended and they were produced before the court
and remanded to judicial custody.
The present petitioner is one Hrishikesh P Nayak who
had come to collect the parcel. The investigating agency has
issued notice U/s.67 of NDPS Act. He was secured in the office
of NCB.
As per the statement of the present petitioner his
name and address has been used by accused No.3 to book the
drug parcel.
He is no way connected to the booking of the
parcel. He has stated that accused No.3 Suhas Gowda is his
childhood friend he has told him that his friend Aadish had
booked a parcel from USA through Dark Net and has given the
address of Hrishikesh P Nayak.
Prior to this also he has
received similar drug parcels that was in his name when he
8
was out of his native place, at that time accused No.3 has
collected the said parcels from RMC yard Post office.
The
allegation against the present petitioner is, the name of present
petitioner has been used by accused No.3 who has booked the
parcel, the present petitioner knowing fully well about the drug
parcel he has not taken any steps to inform the jurisdictional
police.
8. 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. The seized article is not commercial quantity. 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. It is argued by the prosecution that the petitioner has
committed heinous offence 177 grams of Ganja and 7 Grams of
psilocybine Mushrooms is seized from the parcel booked in the
name of the present petitioner. The offence punishable with
imprisonment upto 10 years and with fine. There are prima
facie material available against him.
CCH33
Crl.Misc.No.11119/2022
9
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
04/11/2022 basing on the credible information, the IO , NCB
had seized 177 grams of hydro ganja and 7 grams of
psilocybine
mushrooms
from
2
shipments
bearing
Nos.UA935905620US and CE985425250US at Foreign Post
office, Bangalore. 35 grams of hydro ganja was seized from
shipment No.UA935905620US and 142 grams of ganja 7
grams of psilocybine mushrooms were seized from shipment
bearing No. CE985425250US. During controlled delivery
operation the present petitioner who came along with accused
No.3 to collect the parcel was intercepted and enquired. The
parcel is booked in the name of present petitioner by accused
No.3 who is the close friend of present petitioner. He has failed
to inform the matter to the police knowing fully well about the
drug in the parcel.
On looking to the seizure panchanama
the drugs seized from accused is weighing 177 grams of Hydro
Ganja and 7 Grams of psilocybine Mushrooms. As per
specification of small and commercial quantity of narcotic drug
10
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 the
present case 177 grams of hydro ganja is seized which is a
small quantity.
Likewise at Sl.No.145 the narcotic drug –
psilocybine 2 grams is the small quantity and 50 grams is
Commercial quantity.
In this case 07 Grams of psilocybine
mushrooms seized is an intermediate quantity.
11. 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.
The said case law aptly applies to the case on hand in holding
that the contraband seized in the case on hand is intermediate
11
CCH33
Crl.Misc.No.11119/2022
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.
12. Here in this case the drugs seized by the investigating
agency to the tune of 177 grams of Ganja and 7 Grams of
psilocybine Mushrooms 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.
13.
The major portion of investigation in the case is
concluded as the incriminatory article is already seized in the
case.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life. The allegation
against the present petitioner is his name and address has
been used by accused Nos.3 to book the parcel. A1 and A2 are
booking the drug parcel through the dark net. The only
allegation against the present petitioner is he has received the
12
parcel even after knowing that the parcel contain drugs. 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. Further
custodial interrogation is not warranted. 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.
14. 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.
13
CCH33
Crl.Misc.No.11119/2022
2.
He shall not leave the jurisdiction of this
court without prior permission.
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 19th day of November 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*