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 21st DAY OF NOVEMBER 2023
Crl. Misc.No.10119/2023
Petitioners :
(accused No.1 to 3)
1. Juju Pradhan S/o Pit Pradhan,
aged 20 years, R/at Krandi Balli
village, Kamtana Post, Piringya
Tasil, Kandha Mal District,
Odissa762002.
2. Janardhana Kanhar S/o
Bisaswar Kanhar, aged 19 years,
R/at Jidingi Pada Village, Pakari
Post, Piringya Tasil, Kandha Mal
District, Odissa762002.
3. Uttam Kanhar S/o Labudu
Kanhar, aged 21 years, R/at
Krandiballi Village, Kamatana
Post, Piringya Tasil, Kandha Mal
District, Odissa762002
(By Sri M,Subramany., Adv).
V/S.
Respondent :
State by NCB., Bangalore.
(By Spl. Public Prosecutor)
2
ORDER
This is a second bail petition U/Sec.439 of Cr.P.C., filed
by
the
petitioners
to
enlarge
them
on
bail
in
NCB.Cr.No.48/1/14/2023/BZU for the offences punishable
U/Sec.8(c), 20(B)(ii)(b), 27A, 28 and 29 of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:
That the petitioners are innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged. They have 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. There is no criminal antecedents against
the petitioners.
They are young aged, they are permanent
residents of Karandiballi and Idingipada, Kandamal district,
Odissa. The petitioners are ready and willing to abide by any
conditions imposed by this court in the event of grant of bail.
They are ready to offer surety for their due appearance before
this court. Hence, sought to grant bail.
CCH33
Crl.Misc.No.10119/2023
3
3. The prosecution while opposing the bail petition
contended that basing on the credible information the accused
were travelling from Brahmapur, Orissa to Bangalore.
They
were apprehended at Bangalore with commercial quantity of
ganja on 7.4.2023. the total quantum of ganja seized from the
accused persons is 20.640 Kgs. The investigation is in
progress. They were traveling in a train without holding any
valid tickets.
The main peddlers have to be apprehended.
The seized ganja comes under the purview of commercial
quantity under the NDPS Act. As per Sec.37 of NDPS Act
leaves no doubt that a person accused of an offence
punishable for a term of imprisonment of 5 years or more,
shall generally be not released on bail. Negation of bail is the
rule and its grant is an exception under subclause (ii) of
clause (b) of Sec.37(1). There are primafacie materials available
against the petitioners attracting the offences alleged in the
prosecution papers.
The petitioners have not made any
grounds to entertain the bail petition.
release
they
prosecution
may
abscond
evidence
and
and
hinder
In the even of their
may
the
tamper
with
progress
of
the
the
4
investigation and may again connive and resort to do the same
illegal business which may not only affect adversely health of
public especially youngsters. With these main pleas sought to
reject the petition.
4. Heard learned counsel for the petitioners and the
prosecution.
5. The points that arise for my consideration are as here
under:
1. Whether petitioners have made out
sufficient grounds to enlarge them on
bail?
2. What order?
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: The IO., NCB has put the criminal law
into motion. The gist of the allegation reads as here under:
CCH33
Crl.Misc.No.10119/2023
5
On 7.04.2023, the IO., NCB., has received credible
information
that
three
persons
namely
Juju
Pradhan,
Janardanakanhar and Uthamkanhar were travelling from
Brahmapur, Orissa in a train with contraband.
They have
boarded the train on 6.4.2023 and the said train would reach
Bangalore on 7.4.2023 and they would arrive by Prashanthi
Express train No.18463 and they are in coach No.S5 and they
are carrying ganja in their Baggages.
As per the said
information. As per this information, the NCB team reached at
Sr.
Divisional
Security
Commissioner
office,
near
DRM
Building, South Western Railways, Bangalore Division office,
Bangalore. The IO., NCB had informed the matter to higher
officer and obtained permission to conduct raid. He along with
staff, DD kit had gone to the spot.
They reached the SBC,
Railway Station around 11.00 hours. When they were waiting
for the train the train came around 12.15 hours in Plat form
No.4. immediately the NCB., team along with the independent
witnesses
and
staff
were
watching
the
movements
of
passengers who were getting down from the train. The persons
who were stated in the information were found carrying three
6
baggages and they were aged about 20 years.
They were
surrounded and enquired. They have stated their names and
addresses. They are the natives of Odissa State and further
stated that they have boarded the train at Brahmapur, Odissa
and were travelling to Bangalore.
Further they were not
having any tickets and they have paid penalty of Rs.1,800/.
They have shown the excess fair ticket of them.
When they
were questioned about carrying about any contraband they
have stated that they are in possession of contraband. When
their baggages were checked it was containing ganja.
bag of ganja was having different measurements.
weight of ganja came around 21 Kgs., 880 grams.
Each
The total
All the
packets were opened and sample was taken and the same was
tested in the DD Kit which has given positive result for ganja.
The total net weight of ganja came around 20.640 Kgs. The
said ganja was seized under the mahazar. The accused were
issued with summons U/s.67 of NDPS Act, their statement
came to be recorded, on the reliable belief that they were
transporting
contraband
ganja
they
were
arrested
and
produced before the court with remand application. In the
CCH33
Crl.Misc.No.10119/2023
7
remand application it is stated that the accused were
prosecuted for the offences U/Sec.8(c), 20(B)(ii)(b),27A, 28 and
29 of N.D.P.S. Act. A detail mahazar is drawn, Arrested the
accused
and
registered
the
case
in
NCB.F
No.48/1/14/2022/BZU for the offences punishable under
U/Sec.8(c), 20(B)(ii)(b),27A, 28 and 29 of N.D.P.S. Act.
Investigation is completed and charge sheet is filed.
8. The prosecution opposed the bail plea on the ground
that the offences alleged against the petitioner is punishable
upto 20 years. In the event of grant of bail they may abscond
and may hamper investigation.
9.
The learned counsel for the petitioners argued that
petitioners are innocent.
They have not committed any
offence. They are falsely implanted by the investigating agency.
They are in JC since the date of arrest. The investigating
agency has not complied the provisions of NDPS Act with
regard to the seizure of ganja. They hail from poor families.
They are sole earning members. If they are released on bail
they may cooperate with the investigating agency and may
8
offer solvent surety. Learned counsel for the petitioner referred
to the dictum of Hon’ble Apex Court in the case of Mohammed
Muslim @ Hussein Vs., State where in the Hon’ble Apex Court
granted bail to the accused on the ground that there is delay in
trial. Further it is observed that grant of bail on the ground of
undue delay in trial, cannot be said to fettered by sec.37 of the
Act, given the imperative of Sec.436A which is applicable to
sections under the NDPS Act too.
I have carefully gone
through the above decision. In the said case the accused was
in judicial custody for the past 7 years 4 months, on
considering the prolonged detention of accused in the judicial
custody the Hon’ble Apex Court granted bail to the accused.
In the case on hand the accused herein were apprehended
with commercial quantity of ganja on 7.4.2023.
now the
investigation is concluded and charge sheet is filed before this
court and the matter is posted for framing charge. There is no
delay in trial.
Further, the accused are from Odissa state
apprehended with commercial quantity of contraband article.
There are primafacie material available against the accused
attracting the charges levelled in the complaint.
Therefore,
9
CCH33
Crl.Misc.No.10119/2023
with due respect, the judgment referred to by the petitioner
may not be made applicable to the present facts.
10.
He has referred to the judgment of Hon’ble Apex
Court in Mukesh Singh Vs., State (Narcotic Branch of
Delhi) in Spl.L.P.(Crl.)Diary No.39528/2018 dt.31.8.2022.
In the said case the Hon’ble Apex Court while answering the
reference had observed that the informant himself is the
investigation officer by that itself it cannot be said that
investigation is vitiated on the ground of bias or the ground of
like factor.
The question of bias or prejudice would depend
upon the facts and circumstances of each case.
Therefore,
merely because the informant is the investigator, by that itself
the investigation would not suffer the wise of unfairness and
bias and therefore, on the sole ground that informant is the
investigator the accused is not entitled to acquittal.
The
matter has to be decided on a case to case basis.
The
observation made in Mohan Lal case in regard to that aspect
held to be incorrect and to that aspect it is over ruled. The
10
said dictum is on a different set of facts and circumstances, it
is of no assistance to the case of petitioner herein.
He had referred to the order of Hon’ble Apex Court in the
case of Rabi Prakash Vs., State of Odissa Spl.L.A.(Crl.)
No.4169/2023 dt.13.7.2023, Angela Harish Sontakke Vs.,
State of Maharashtra reported in (2021) 3 SCC 723, Union
of India Vs., K A Najeeb reported in (2021) 3 SCC 713.
In the aforesaid cases the accused has been granted bail on
the ground of delay in trial as he was in judicial custody for 3
½ years. The facts and circumstances in which the accused in
the said case is enlarged on bail differs from the present facts.
Hence, with due respect it may not be made applicable to the
present case.
11. On looking to the prosecution papers the quantum
of narcotic substance seized 20.640 Kgs., 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 drug – Ganja weighing
11
CCH33
Crl.Misc.No.10119/2023
1000 grams is small quantity and 20 Kgs., is a commercial
quantity. In the present case seized is weighing 20.640 Kgs., of
Ganja, is commercial quantity.
12.
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 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.
12
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 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 nonapplication
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.
13
CCH33
Crl.Misc.No.10119/2023
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.
(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.
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.
14
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
primafacie 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 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 of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001 (7) SCC
673 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
15
CCH33
Crl.Misc.No.10119/2023
grounds for believing that the petitioners are not guilty of the
offences with which they are charged and further that they
are 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.”
In the recent judgment of NCB V/s Mohit Agarwal in
Crl.A.10011002 of 2022, dated 19.07.2022 in the said case
the appellant NCB being aggrieved by the order of post arrest
grant of bail to the accused by the Hon’ble High Court of Delhi
has impugned order of bail before the Hon’ble Apex Court. In
the said case Hon’ble Apex court on appreciating the various
parameters of grant of bail at para 18 of the order has
observed has hereunder:
In our opinion the narrow parameters of bail available
under Section 37 of the Act, have not been satisfied in the
facts of the instant case. At this stage, it is not safe to
conclude
that
the
respondent
has
successfully
demonstrated that there are reasonable grounds to believe
that he is not guilty of the offence alleged against him, for
16
him to have been admitted to bail. The length of the period
of his custody or the fact that the chargesheet has been
filed and the trial has commenced are by themselves not
considerations that can be treated as persuasive grounds
for granting relief to the respondent under Section 37 of the
NDPS Act.
In the said case accused is prosecuted for the offences
punishable U/s.8, 22 and 29 of NDPS Act. Accused No.1 and 2
were apprehended and 20 Kgs of Tramadol tablets were seized.
During follow up action basing on the disclosure statement,
raiding team proceeded to the godown of Pramod Jaipuria and
conducted a search during which a cache of drugs covered
under the NDPS Act, were recovered. The said drugs included
6,64,940 tablets of different psychotropic substances including
Tramadol, Zolpidem and Alprazolam tablets/capsules weighing
around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4
ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900
tablets weighing 990 gms., were recovered during the search
conducted by the NCB officials at the premises of the co
accused, Manoj Kumar at Ludhiana. In the said case the
accused has been granted bail by Hon’ble High Court which
17
CCH33
Crl.Misc.No.10119/2023
has been held to be incorrect it is observed further that the
length of the period of custody of a accused or the fact that the
charge sheet has been filed and the trial has commenced are
by themselves not considerations that can be treated as
persuasive grounds for granting relief to the respondent
under Section 37 of the NDPS Act.
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 petitioners are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners 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
petitioners or not. At this juncture, we cannot say that the
petitioners are 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 they are 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 petitioners 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
18
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 petitioners
are not guilty and that they are not likely to commit any
offence while on bail.
Huge quantum of contraband seized
from the conscious possession of accused No.1 to 3. The
petitioners herein are having knowledge of transport of the
heroin seized in the case. At this stage, there are primafacie
materials available against the petitioners that they were
transporting huge quantity of contraband in the case. At this
stage, no material placed on record by the petitioners to show
that the present petitioners are no way connected with the
alleged crime.
In the result, I proceed to hold that the
petitioners herein have not made out any grounds to entertain
their plea for bail. Accordingly, I answer point No.1 in the
negative.
13. Point No.2: In the result, I proceed to pass following:
CCH33
Crl.Misc.No.10119/2023
19
ORDER
The petition filed by the petitioners 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 21st day of November 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*