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 01st DAY OF FEBRUARY, 2023
Crl. Misc.No. 12855/2022
Petitioner :
(accused)
James Ifeoluwa Oyewale,
S/o.Oyewale, Aged about 26 years,
R.at near Sambhram College,
Vidyaranyapura Bengaluru.
(Now in JC)
(By Smt.Saraswathi.N.Adv.)
V/S.

Respondent :
State by Kamakshipalya 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.499/2022 of
Soladevanahalli, registered for the offences punishable U/Sec.
22(A) 22(c) of N.D.P.S. Act and Section 14 of Foreigners 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. There is absolutely no mention
about the actual weight of MDMA.

There are no resonable
grounds to believe that the petitioner has committed the
alleged offences. The petitioner is a permanent resident in the
address as shown in the cause title. 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 18 Grams of MDMA from the
accused persons.

The contraband seized is a commercial
quantity. There are sufficient materials available against the
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petitioner and the said offences are punishable with rigorous
imprisonment for a term which shall extend to 10 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.
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:
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Point No.1: In the Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:­ The PSI, Wilson Garden P.S., Bangalore
has put the criminal law into motion. The gist of the allegation
reads as here under:­
On
21.12.2022
at
about
4­50
pm,
when
the
complainant was in the police station he has received credible
information that two persons are selling MDMA contraband
near Hombegowda Ground to the public.
staff
and panchas
surveillance.

He along with the
has been to the spot and mounted
In th spot some two persons, were found and
on seeing the police, they are trying to ran away from the spot.
They were surrounded and apprehended them and on
enquiry, they revealed their names as Yasin Pasha and Syed
Sadiq. They were in possession of small plastic covers. When
they were enquired about the contents of the cover, they have
revealed that they are in possession of contraband MDMA and
they are keeping contraband to sell it to the public. The said
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contraband was weighed the weight came around 18 grams.
The said contraband is seized under mahazar and cash of
Rs.1600/- was also seized. He has arrested the accused No.1
and 2, prepared a detailed report which is the basis to register
the case against them in Crime No.293/2022 for the offences
punishable u/Sec.8(c) and 22(b) of NDPS Act.

The accused
were produced before court and were remanded to judicial
custody. The petitioner herein is the accused No.2 in the case.
8. It is vehemently argued by the learned counsel for the
petitioner that petitioner is falsely implicated in the case. The
quantity seized from the possession of the accused is less than
commercial quantity. The major portion of investigation is
concluded.

Custodial interrogation is not warranted.

He is
entitled for bail.
9. It is argued by the prosecution that the petitioner has
committed heinous offence and the drugs were seized from his
custody. There are prima­facie material available against him.
10.

On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
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agency seized
small
and
psychotropic
Department
18 grams of MDMA.
commercial
substance
of
Revenue
quantity
issued
by
As per specification of
of
narcotic
Ministry
Notification
drug
of
S.O.1055(E)
or
Finance
dated
19.10.2001 Sl.No.134 the narcotic drug ­ MDMA weighing 10
grams is a commercial quantity. In the present case the MDMA
weighing 18 grams seized is a commercial quantity. From the
conscious possession of A­1 and 2, 18 Grams of MDMA was
seized.

11. 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.
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
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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 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
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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.
12. 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.

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Crl.Misc.12728/2022
(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 co­accused.

13. By making a detail observation in granting the bail to
the accused held to be incorrect 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
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
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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 in the judgment 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
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.”
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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
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
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while on bail. Here in the present case prosecution has seized
18 grams M.D.M.A. The quantity of contraband
seized is
commercial quantity. At this stage, there is primafacie material
available against the petitioner in regard to the possession of
narcotic drug. Learned counsel for petitioner has failed to
place any material before this court that he was not in
possession of NDPS article at the time of his apprehension and
search.

In the result, I proceed to hold that the petitioner
herein has not made out any grounds to entertain his plea for
bail. Accordingly, I answer point No.1 in the negative.
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 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 16th day of January, 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.

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