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 23rd DAY OF DECEMBER 2022
Crl. Misc.No.12351/2022
Petitioner :
(accused No.3)
Joseph S/o.Okafor, a/a 27 years, R/at
Amurie Nkporo, Nigeria
Present Address:
Muniyallappa building, Near
Government School, Kattigenahalli,
Yelahanka, Bengaluru560064
(By Sri Nishit Kumar Shetty, Adv.)
V/S.
Respondent :
State by Yelahanka 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.124/2022 of
Yelahanka
PS.,
registered
for
the
offence
punishable
U/Sec.22(b) of NDPS Act and Sec.14(1) of Foreigners Act.
2
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is innocent and law abiding citizens.
He is not committed any offence much less the offence as
alleged. He has been falsely implicated by the respondent in
this case. Though the alleged offences are 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 petitioner is permanent resident
of the address 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 8 grams of MDMA from
accused
Nos.1 and 2.
The offences alleged against the
petitioner is punishable with rigorous imprisonment for a term
upto 10 years and shall also be liable to fine.
There is a
primafacie case available against the petitioner. He is habitual
CCH33
Crl.Misc.No.12351/2022
3
drug dealers.
There is primafacie case made out against
petitioner. If petitioner is released on bail, he will continue the
profession of narcotic drug selling, and he may abscond and
tamper evidence of the prosecution. 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
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: A report submitted by PSI, Yelahanka .,
who is the complainant in this case before the Yelahanka PS.
The contents of the report is here under:
4
On 15.5.2022 in between 16.00 hours to 18:40 hours
when the complainant was on patrolling duty he received
credible
information
that
Near
Kogilu
main
road,
Srinivasanagar HP Petrol Bunk compound next Road two
persons one foreigner and one Indian are selling narcotic drugs
to the customers. He has informed the matter to the Higher
Officer and obtained permission to conduct raid. He went to
the spot and apprehended accused Nos.1 and 2. On enquiry
and during personal search he has seized 8 grams of MDMA.
Thereafter, a detail seizure panchanama was drawn. A detail
report was prepared and submitted before SHO which is the
basis
to
register
the
case
against
the
accused
in
Cr.No.124/2022 of Yelahanka PS registered for the offence
punishable U/Sec. 22(b) of NDPS Act. And sec.14(1) of
Foreigners Act. Thereafter the accused were arrested and
produced before jurisdictional Magistrate and was remanded to
JC. In the voluntary statement of accused Nos.1 and 2 have
stated that they have purchased contraband from the present
petitioner. Basing on the voluntary statement of accused
Nos.1 and 2, present petitioner is apprehended. His statement
CCH33
Crl.Misc.No.12351/2022
5
is recorded.
At his instance there is no recovery.
Now the
investigation is concluded and charge sheet is filed.
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. 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 8 grams MDMA is seized from the
accused Nos.1 and 2.
contraband
to
them.
the present petitioner has supplied
The
offence
punishable
with
imprisonment upto 10 years and with fine. There are prima
facie material available against him.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that PSI,
Yelahanka police station has conducted raid and apprehended
the accused
Nos.1
and 2. On looking to
the
seizure
6
panchanama the drugs seized is weighing 8 grams of MDMA
from accused No.1 and 2. 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 drugMDMA 0.5 grams is small quantity
and 10 grams., is commercial quantity.
In this case the
quantum of MDMA seized is 8 grams MDMA is an intermediate
quantity. The present petitioner herein is arrested basing on
the voluntary statement of accused
Nos.1 and 2.
The
allegation against the present petitioner is he has supplied
contraband to accused Nos.1 and 2. At his instance there is
no recovery. Now, the investigation is concluded and charge
sheet is filed. Further custodial detention of petitioner is not
warranted. 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 MDMA, which is a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
CCH33
Crl.Misc.No.12351/2022
7
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
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 8 grams of MDMA which is an
intermediate quantity from accused Nos.1 and 2. 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 investigation is concluded and charge sheet is
filed.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life. Further
custodial
interrogation
is
not
warranted.
As
per
the
information provided by the petitioner he is permanently
8
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.
They shall not leave the jurisdiction of
this court without prior permission.
3.
They shall not tamper the witness or
abscond.
4.
They shall cooperate
investigation.
5.
They shall not commit similar offence or
any offence while on bail.
with
I.O
for
9
CCH33
Crl.Misc.No.12351/2022
6.
They shall furnish his photo ID proof
and photo ID proof of his sureties.
7.
They 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 23rd day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.