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 9th DAY OF DECEMBER 2022
Crl. Misc.No.11723/2022
Petitioner :
(accused No.1)
Jagadish, S/o.Raju, a/a 39 years,
R/at No.24, Circular Street,
Akkithimmanahalli, Shanthinagar,
Bengaluru560027
(Now in JC)
(By Sri.Charles.E, Adv.)
V/S.
Respondent :
State of Karnataka by RMC Yard 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.153/2022 for the
offence punishable U/Sec. 20(B) (c) of N.D.P.S. Act.
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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.
Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. 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.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 23 Kgs.,300 grams of ganja
which is a commercial quantity. 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
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Crl.Misc.11723/2022
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.
He may involve himself in similar offences.
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.
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
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Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The PSI of RMC Yard PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On
18.9.2022
at
about
11.00
a.m,,
when
the
complainant was discharging duties in the police station he
has
received
an
information
that
on
Tumkur
road,
Marappanapalya behind Govardhan Talkies, two persons were
carrying ganja in their two wheeler to gain illegal money. He
has immediately noted the information in the station house
diary,
informed
the
matter
to
higher
officer,
obtained
permission to conduct raid. Thereafter, the complainant along
with his staff and panchas has been to the spot around 11.30
am., and when he has mounting surveillance in the spot,
around 12.00 noon two persons were found there moving
suspiciously and were selling ganja. They were apprehended.
On enquiry they have stated that they are doing the sale of
ganja.
Gazetted officer was called to the spot and personal
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Crl.Misc.11723/2022
search was also conducted. The cover which was in the hands
of accused persons were checked containing ganja.
The
contents of the cover was weighed in the weighing machine it
was found to be 2 Kgs., 100 grams. The ganja and the vehicle
seized under the mahazar. He has submitted a report before
the Station House officer, basing on the said report case in
Crime No.153/2022 is registered against accused persons for
the offences punishable under Sec.20(B) of NDPS Act. Accused
Nos.1 and 2 were arrested and produced before the court.
The voluntary statement of accused Nos.1 and 2
recorded. In the voluntary statement accused No.1 has stated
that the accused No.3 has handed over 25 Kgs., of ganja to
him which was purchased from a person of Odissa State. He
and accused No.2 have stored the ganja in the house of
accused No.2 situated at Neelasandra.
On the same day
accused Nos.1 and 2 were taken to their house situated at
Neelasandra, Rose Garden door No.17, In the hall two luggage
baggages and college bag were found.
On opening the bag,
packets were found covered with plastic tapes. It was opened
and in that ganja was found. When the ganja was weighed in
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the weighing machine. The total quantum of ganja found in
the house of accused No.2 is 20 Kgs., 150 grams. The entire
ganja was seized under the mahazar. The present petitioner is
accused No.1 in the case.
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 23 Kgs., 300 grams of
seized from the petitioner and other accused.
ganja
is
The offence
punishable with imprisonment upto 10 years and with fine.
There are primafacie material available against them.
CCH33
Crl.Misc.11723/2022
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10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
18.9.2022 complainant has conducted raid and apprehended
accused.
On looking to the seizure panchanama the drugs
seized from the present petitioner initially is weighing 2 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.55
the narcotic drugganja 1000 grams is small quantity and 20
Kgs., is commercial quantity.
In this case the quantum of
ganja seized is 2 Kgs., 100 grams 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 2 Kgs., 100 grams 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.
custodial
interrogation
is
not
warranted.
His
Further
Voluntary
statement is already recorded. As per the information provided
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Crl.Misc.11723/2022
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.
3.
He shall not tamper the witness or abscond.
4.
He
shall
cooperate
investigation.
with
I.O
for
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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.
[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 9th day of December 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*