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 29 th DAY OF NOVEMBER 2022
Crl. Misc.No.11376/2022
Petitioner :
(accused No.2)
Malcolm Santhosh Kumar,
S/o.Stanly Jay Kumar, a/a 33 years,
R/o. 70, 3rd Cross, Palace Loop Road,
Vasanth Nagar, Bengaluru-560052
(By Sri.Yahathesham.S, Adv.)
V/S.

Respondent :
State by Pulakeshinagar Police
Station
(By Public Prosecutor)
OR D E R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner
to
enlarge
(Spl.C.C.2764/2022 of
him
on
bail,
in
Cr.No.214/2022
Pulakeshinagar PS., registered for the
offence punishable U/Sec.22(b) of N.D.P.S. Act R/w.Sec.14 of
Foreigners Act in Spl.C.C No.2764/2022.

2
2. The grounds urged by the petitioner for grant of bail
are as under:
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 investigation in the case is completed
and charge sheet is filed. As per the FSL report the contraband
which is seized in the case is Metha amphetamine. On
chemical analysis by the FSL expert the sample which was
sent for analysis is found to be Metha amphetamine.

The
quantum of contraband seized in the case is 20 grams of
psychotropic substance from accused No.1 and 12 grams of
psychotropic substance from accused No.2.

Accordance to
FSL report the sample gave positive result for presence of
Metha amphetamine in the contraband. Meta amphetamine
weighing 50 grams is commercial quantity.

In this case the
contraband seized is an intermediate quantity.

As the final
report is already filed before the court custodial detention of
CCH-33
Crl.Misc.No.11376/2022
3
the petitioner is not warranted. Though the alleged offence is
non bailable, but is neither punishable with imprisonment for
life or death sentence. 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. He has no bad antecedents. He
is the sole bread earner of his family. Hence, sought to grant
bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 32 grams of narcotic
substance MDMA from accused Nos.1 and 2.

The offence
alleged against the petitioner is punishable with rigorous
imprisonment upto 10 years and shall also be liable to fine.
There is a primafacie case available against the petitioner. He
is a habitual drug dealer. 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
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 his 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:- The complainant who is the PSI., of
Pulakeshinagar PS., Bangalore has put the criminal law into
motion. The gist of the allegation reads as here under:On 28.06.2022 at about 2.30 pm., when the complainant
was in the station he has received credible information that
near a park at Richards Town, Bengaluru limits one Nigerian
national is selling narcotic drugs to customers. He has
5
CCH-33
Crl.Misc.No.11376/2022
immediately informed the matter to his higher officer, obtained
permission to conduct raid.

He along with his staff and
panchas has been to the spot and found one Nigerian national
near the Park along with his Car. The informant has shown the
said person to the complainant. On enquiry he has revealed
his name and address. On enquiry he has revealed that he is
selling MDMA crystals to the students and IT BT Employees.
ACP was called to the spot, he was appraised of his right to
have personal search through a Gazetted Officer. In the
presence of ACP personal search is conducted. 20 grams of
MDMA crystals seized from accused No.1. The same was seized
under mahazar. Detail report was prepared and submitted to
SHO. Basing on the said report the case in Cr.No.214/2022
registered against him for the offence punishable U/Sec.20(b),
22(b) of N.D.P.S. Act and Sec.14 of Foreigners Act. Accused
No.1 was arrested and produced before the court.
During voluntary statement he has given the numbers of
persons who have purchased contraband from him.

The
investigating officer has collected the details of the customers
who have purchased contraband from the petitioner.

The
6
accused No.2 was apprehended basing on the information of
phone numbers given by A.1. From accused No.2-12 grams of
MDMA is seized on 30.6.2022 in front of Empire Hotel, MDM
Road, Frazer Town, Bengaluru. He is put under arrest,
produced
before
the
court
and
remanded
to
JC.

The
investigating agency on conclusion of investigation filed charge
sheet before the court.

8. Now in the present bail petition it is contended that
the investigating agency filed charge sheet against the accused
for transporting 32 grams of Metha amphetamine U/s.22(b) of
NDPS Act and also for violating the provisions of Foreigners
Act U/s.14.

The Metha amphetamine seized
from accused
No.2/present petitioner on 30.6.2022 is to the tune of 12
grams which is intermediary in quantity. The petitioner is in
judicial custody since the date of arrest.

His custodial
detention is not warranted.
9.

On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
30.6.2022 complainant has conducted raid and apprehended
7
CCH-33
Crl.Misc.No.11376/2022
petitioner herein. On looking to the seizure panchanama the
drugs seized from accused No.2 is weighing 12 grams of
MDMA. As per the FSL report the sample which was drawn
from the bulk seized from the accused gave positive answer for
Metha amphetamine. 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.159 the narcotic drug­Metha amphetamine 2 grams is
small quantity and 50 grams is commercial quantity. In this
case the quantum of 12 grams of Metha amphetamine seized is
an intermediate quantity. 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 ganja, which is a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
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
8
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.

10. Here in this case the drugs seized by the investigating
agency to the tune of 12 grams of Metha amphetamine which
is an intermediate quantity. 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.

11.

The investigation in the case is completed and
charge sheet is submitted. Further custodial detention is not
warranted.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.

His
Further
Voluntary
statement is already recorded. As per the information provided
by the petitioner he is permanently residing in the address
shown in the cause title. The apprehension of the prosecution
CCH-33
Crl.Misc.No.11376/2022
9
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.
12. 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.

He shall not leave the jurisdiction of this
court without prior permission.

3.

He shall not tamper the witness or abscond.

4.

He
shall
co-operate
investigation.

5.

He shall not commit similar offence or
any offence while on bail.

6.

He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.

7.

He shall appear before the court on all
hearing dates.

with
I.O
for
10
8.

Breach of any of the conditions by the
petitioner would entail cancellation of bail.

[Dictated to the Judgment Writer, directly on the computer, typed and
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 29th day of November, 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*