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 6 th DAY OF AUGUST 2022
Crl. Misc.No.6132/2022
petitioner :
(accused No.2)
Smt.Lal Thlamuanpuii, 32 years,
D/o.Laltlanthanga, kd 30 Kosec,
near upc church, Bawngkawn,
Aizwal Municipal Council, Aizwal,
Bawngkawn, Mizoram 796 014.
(By Sri.S.S., Adv.)
V/S.
Respondent :
Union of India, NCB., Bengaluru.
(By Spl. Public Prosecutor)
O R DE R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner
to
enlarge
her
on
bail,
in
NCB.Cr.No.48/1/13/2022/BZU for the offence punishable
U/Sec.8(c), 23C, 27A, 28 and 29 of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:-
2
That the petitioner is innocent and law abiding citizen.
She has not committed any offence much less the offence as
alleged. she 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 present petitioner had only accompanied
accused No.1 to collect the baggage. There are contradictions
regarding the colour of the seized substance and the travel
details of present petitioner. Petitioner is an unmarried lady
taking care of her aged parents. Only based on the voluntary
statement of other accused this petitioner is arrested.
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 I.O has seized 13.85 Kgs., of heroin from the conscious
possession of accused No.1 and present petitioner as it was
found in their baggages. During preliminary enquiry of
accused No.1, it is revealed that she came to KIA on 24.5.2022
CCH-33
Crl.Misc.6132/2022
3
to collect her luggage baggage having tag No.KQ495221 along
with her friend present petitioner who also carried one luggage
baggage
containing
drugs
and
reached
Bangalore
on
23.5.2022. The complainant NCB issued notice to her on
24.5.2022 who was also present at KIA airport, Bangalore, she
in her voluntary statement has stated that she has carried
luggage baggage containing drugs from Zimbabwe to Bangalore
and reached Bangalore on 23.5.2022 and on the date of
apprehension she was staying in room No.001, OYO 11419
Surya Residency, New Airport Road, Bangalore and her
luggage baggage was kept in the said room.
When the
complainant NCB along with accused Nos.1 and 2 reached to
the said address and on checking the room they recovered
6.890 Kgs., of heroin from the luggage baggage of accused No.2
kept in the said room.
Basing on the statement of present
petitioner notice was issued to accused Nos.3 and 4.
Basing
on the voluntary statement of accused No.4, NCB team along
with accused No.4 went to Delhi for follow up action. Accused
No.4 has identified the main culprit of drug trafficking
accused No.5 to whom the said drug luggage baggages are to
4
be delivered at Delhi. The house search of accused No.5 was
conducted after issuing notice to him.
Rs.5,80,000/- cash was recovered.
During house search
Thereafter, notices were
issued to accused Nos.6 to 8 and their statements were
recorded.
They have stated their involvement in importing,
transporting and taking delivery of seized 13.850 Kgs., of
Heroin. It is further contended that 13.850 Kgs., of Heroin is
seized from the conscious possession of present petitioner and
accused No.1. the petitioner is making quick money by illegal
drug deals. She is not a permanent resident of Bangalore. In
the event of grant of bail she may abscond and may hamper
the investigation.
Further, there are prima-facie materials
available against the petitioner attracting the offences alleged
in the prosecution papers.
Hence, sought to reject the the
petition.
4. Heard learned counsel for the petitioner and the
prosecution.
5. The points that arise for my consideration are as here
under:
CCH-33
Crl.Misc.6132/2022
5
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 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:On 23.05.2022 at about 17.05 hours the complainant
has received credible information that one luggage baggage
having tag No.KQ495221 contain narcotic drugs is carried
from a lady passenger from Dubai Airport who is traveling from
Nairobi to Bangalore via Dubai.
The said flight will reach
Bangalore at around 3.00 hours on 24.5.2022. On receipt of
the information he has informed to his higher officer and
obtained permission to conduct raid.
The NCB team mounted
surveillance at KIA airport, Bangalore on 24.5.2022. At about
4.00 hours the customer service supervisor, Air India Sats KIA
Airport informed that the luggage bearing tag No.KQ 495221
6
has been arrived and the lady passenger would collect the
same at 5.15 hours.
When the lady passenger came to the
baggage arrival area the staff handed over the said luggage
baggage to the lady passenger and after identified and
confirmed by her that the said luggage belongs to her the NCB
team approached the said lady enquired her, she replied that
she received the said luggage from an African lady at
Zimbabwe on 14.5.2022 which contain narcotic drug.
On
search of the said luggage baggage she found 7 Kgs., of heroin.
she seized the same. A detail mahazar is drawn, Arrested the
accused
and
registered
the
case
in
NCB.F
No.48/1/13/2022/BZU for the offences punishable under
Sec.8(c), 23C, 27A, 28 and 29 of NDPS Act.
In continuation of seizure of 7 Kgs., of Heroin on
24.5.2022 on the voluntary statement of accused No.1 she
raided the room No.001, Oyo 11419, Surya Residency, New
Airport Road, Bangalore and the accused showed the luggage
baggage.
On searching the same she found 6.850 Kgs., of
heroin. she seized the same under mahazar.
7
8.
CCH-33
Crl.Misc.6132/2022
The learned counsel for petitioner argued that the
petitioner herein had just accompanied accused No.1 to collect
the baggage. She has been falsely implanted in the case. She is
in no way connected to the seized contraband.
a) He has referred to the dictum of Hon’ble Apex Court
reported in AIR 2020 SCC 667 in the case of Sujit Tiwari
Vs., State of Gujarat and anr., wherein the Hon’ble High
Court has granted bail to the accused in the said case as the
allegation against the accused in the case case is the accused
was aware of what his brother was doing and was actively
helping his brother. In the said case one Sujit Tiwari/accused
No.1 is the brother of appellant in the case. The said accused
along with 4 Iranians have loaded 1500 Kgs., of Heroin to the
ship.
Instead of going to Egypt as directed by her boss the
appellant and other accused decided to bring the ship to India
and change the name of the Vessel from Prince-II to MV
Hennry.
The appellant in the said case is the brother of
accused No.1 as the allegation against the appellant in the said
case is he was helping his brother.
On looking to the
allegations against the appellant the Hon’ble Apex Court has
8
granted bail to him. The facts and circumstances in the said
case entirely differs from the present facts as the petitioner
herein along with accused No.1 are the persons who were
found in possession of 13.850 Kgs., of heroin.
b) He has also referred to the order of Hon’ble High Court
reported in 2021(5) KCCR 575 in the case of Irfan Ali Vs.,
State. In the said case the accused has been granted bail the
Hon’ble High Court on the ground that there is no material
against the accused in the said case as to whether the accused
in the said case has stocked the ganja in the house. The facts
and circumstances in the said case differs from the facts of the
present case, hence, with due respect it may not be made
applicable to the present facts.
c) He has also referred to 1991 (4) Kar.L.J.694 in the
case of Shankar Krishnasa Habib Vs., State.
I have
carefully gone through the order in the said case. The Hon’ble
High Court has granted bail to the accused in the case. The
facts and circumstances in the said case differs from the facts
of the present case, hence, with due respect it may not be
made applicable to the present facts.
CCH-33
Crl.Misc.6132/2022
9
9. The prosecution contends that in all 13.850 Kgs., of
Heroin is seized from accused No.1 and present petitioner
which is commercial quantity. She is habitual drug peddler. In
the event of her release she may abscond and may repeat the
crime and there is every possibility of absconding of the
petitioner. The offences alleged are punishable with RI upto 20
years. The petitioner are not entitled for bail.
10. On looking to the prosecution papers the quantum
of narcotic substance seized 13.850 Kgs., of Heroin. 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.56 the narcotic drug – Heroin weighing 05
grams is small quantity and 250 grams is a commercial
quantity. In the present case ganja seized is weighing 13.850
Kgs., is commercial quantity.
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
10
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.
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
11
Act.
CCH-33
Crl.Misc.6132/2022
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.
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.
12
(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.
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
13
CCH-33
Crl.Misc.6132/2022
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
grounds for believing that the petitioner are not guilty of the
offences with which she are charged and further that she 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
14
grant of bail. Liberal approach in the matter of bail under the
Act is uncalled for.”
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 are not
guilty of such offence and that she are not likely to commit
any offence while on bail alone will entitle her 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 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 she 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 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
15
CCH-33
Crl.Misc.6132/2022
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 accused 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 and present petitioner.
At this stage, there are primafacie materials available against
the petitioner in regard to the possession of narcotic drug. At
this stage, no material placed on record by the defense to show
that the petitioner is no way connected with the alleged crime.
In the result, I proceed to hold that the petitioner herein has
not made out any grounds to entertain her plea for bail.
Accordingly, I answer point No.1 in the negative.
12. Point No.2:following:
In the result, I proceed to pass
16
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 6th day of August 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.