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 18th DAY OF APRIL 2024
Crl. Misc.No.2991/2024
Petitioner :
(accused.1 to 3)
1. Kunna Sunna
S/o late Mukunda Sunna, Aged
36 Years, R/at Chitragunda
Village,Chitragunda Post,
Malkngiri District, Orissa.
2. Jalendar Harijan s/o Kobi
Harijan, aged 27 Years, R/at
No.Kurlughati Village,
Nuapujarigunda, Kurlughati Post,
Thethali Kutti Block,
Nabarangapur District, Orissa.
3.Jagadhish nayak s/o Baidya
Nayak, Aged 34 Years, R/at
Padepadar Village, Padepadar
Post, Ghutrukhal, Thuamul
rampur, Kalahandi District,
Orissa.
(By Sri Karthik M , Adv.)
V/S.
2
State by Cottonpet Police
Respondent :
(By Public Prosecutor)
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed
by
the
petitioners
to
enlarge
them
on
bail,
in
Cr.No.359/2023 of Cottonpet PS., registered for the offences
punishable U/Sec. 20(b)(ii)(c), of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:
That the petitioners are very innocent and law abiding
citizen. 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 connection or active part played
by these petitioners. The procedure contemplated under
N.D.P.S. Act not followed while recovery. 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
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surety for their 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 161 Kgs 400 grams of Ganja
from the accused persons. The ganja seized is a commercial
quantity. There are sufficient materials available against the
petitioners 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 shall also be liable to fine.
The investigation is concluded and charge sheet is filed. In the
event of their release they may tamper with the prosecution
witnesses.
Incriminatory
articles were
seized
from their
custody. They may involve themselves in similar offences.
Investigating agency by complying the provisions prevailed
under the act has seized the contraband from the petitioners.
The petitioners 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
petitioners.
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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 PI
CCB A&W
PS., has put the
criminal law into motion. The gist of the allegation reads as
hereunder:
On 14092023 at about 8.00 pm., the complainant PI.,
had received credible information from an informant that
within the limits of Cotton pet Police Station , Cottonpet Main
Road, Cottonpet, Bengaluru city the persons of Orissa origin
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are carrying contraband in their Swift Dezire Car bearing No.
OD24J 5932.
On receipt of information he has informed the
matter to ACP, obtained permission to conduct raid, informed
the matter to panchas and staff, proceeded to the spot. In the
spot three persons were found. They were inquired about their
names and addresses,they have stated that their names is
Kunna Sunna, Jalandar Harijan, Jagadeesha Naiyaka of
Orissa State. When the vehicle of accused was checked in that
several ganja packets were found packed in a khaki colour
cello tapes, the total ganja found in the car is 161 K.Gs. The
said ganja was kept in cement bags.
drawn, ganja is seized.
A detail mahazar is
A detailed report is submitted to
Cottonpet PS which is the basis to register the case against the
accused in Cr.No. 359/2023 of Cottonpet PS., registered for
the offences punishable U/Sec. 20(b)(ii)(c), of N.D.P.S. Act..
Thereafter, accused Nos.1 to 3 were arrested and produced
before the court and remanded to judicial custody.
9. It is argued by the prosecution that the petitioners
have committed heinous offence and the drugs were seized
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from their custody.
There are primafacie material available
against them.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 161 Kgs., 400 grams of Ganja under the seizure
panchanama. 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 Sl.No.55 the narcotic drug
Ganja weighing 20 Kgs., is a commercial quantity. In the
present case 161 Kgs 400 grams of Ganja narcotic substance
is seized which is a commercial quantity. In the present case
161 Kgs 400 grams of Ganja narcotic substance is seized, The
contention of petitioners is that petitioners are in judicial
custody since the date of their arrest, their custodial detention
is not warranted.
They may be enlarged on bail.
The said
contention of the petitioners could not be entertained as the
petitioners are apprehended with commercial quantity of
contraband.
Under Sub clause (ii) of clause (b) of 37(1)
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negation of bail is the rule and its grant is an exception. For
granting the bail the court must on the basis of the record
produced before it, be satisfied that the petitioners are not
guilty of the offences with which he is charged and further that
they are not likely to commit any offence while on bail. Here
in this case there is primafacie material collected by the
investigating agency against the petitioners in regard to the
conscious
possession
of
and
commercial
quantity
of
contraband.
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.104134/2021 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
8
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 drug
trafficking 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
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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.
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.
(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
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(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 held to be 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. 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
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
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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.”
12
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
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
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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
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.
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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. Here in the present case the petitioners
along with other accused were apprehended and 161 kgs 400
grams of Ganja. The quantity of contraband seized is
commercial quantity. At this stage, there are prima facie
material available against the petitioners in regard to the
possession of narcotic drug.
The learned counsel for
petitioners have failed to place any material before this court
that they were not in possession of NDPS article at the time of
their apprehension and search. In the result, I proceed to hold
that the petitioners herein have not made out any addl.,
grounds to entertain their plea for bail. Accordingly, I answer
point No.1 in the negative.
13. Point No.2:
following:
In the result, I proceed to pass
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Crl.Misc.2991/2024
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 18th day of April 2024]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.