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 7th DAY OF JANUARY 2023
Crl.Misc.No.12756/2022
Petitioner :
Mallinath, S/o.Shivamurthy, 19
years, R/at.Sagar Camp, Niddagi
Post, Balaganoor Hobli, Maski Taluk,
Raichur district.
(By Sri MBR., Adv.)
V/S.
Respondent :
State by Parappana Agrahara 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.456/2022 of
Parappana Agrahara PS., registered for the offence punishable
U/Sec.20(B)(ii)(B) of NDPS Act.
2. The prevalent grounds urged seeking bail:
2
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 procedure contemplated under N.D.P.S.
Act not followed while recovery. The contraband seized is not
commercial quantity. 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 2 Kgs 515 grams of ganja.
There are sufficient material available against the petitioner,
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 pending.
In the event of his release he
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may tamper with the prosecution witnesses.
Incriminatory
articles were seized from his custody. He may involve himself
in similar offences. Investigating agency by complying the
provisions prevailed under the act has seized the contraband
from the petitioner. The petitioner 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 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:
4
REASONS
7. POINT NO.1: The PSI, of Parappana Agrahara PS.,
Bangalore has presented the complaint before the SHO. The
gist of the allegation reads as here under:
On 24/12/2022 at 9.10 am., when the complainant
PSI., was discharging duty in the police station she has
received
credible
information
that
near
PES
college,
Govindashettypalya, on a mud road one person is carrying
ganja in a travel bag and he is selling it to the public.
On
confirming about the information she has made a note in the
Station house diary, informed the matter to higher officer and
obtained permission to conduct raid.
Thereafter, she along
with staff and panchas had been to the spot around 11.30
am., and mounted surveillance therein.
One person came
there carrying traveling bag and he is showing some article to
the public. The said person was identified by the informant.
The PSI has sent a decoy towards the said suspected person to
confirm about the possession of contraband. When the decoy
signaled he was surrounded. On enquiry he has revealed his
name is Mallinath. s/o.Shivamurthy. When the travel bag of
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Crl.Misc.No.12756/2022
accused was checked it was containing ganja. The weight of
the ganja is 2 Kgs., 515 grams.
under the mahazar.
The said ganja was seized
Thereafter, a detail report is prepared by
him and submitted to the SHO. Basing on the said report, a
case in Cr.No.456/2022 of Parappana Agrahara PS., registered
for the offence punishable U/Sec.20(B)(ii)(B) of NDPS Act. He
is arrested, produced before the court and remanded to
Judicial Custody.
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. The seized article is not commercial
quantity. The mandatory provisions of Sec.41, 42, 50, 52 and
47 of the Act are not complied. He is permanent residents 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 2 Kgs 515 grams of ganja is seized
6
from the petitioner. The offence punishable with imprisonment
upto 10 years and with fine. There are primafacie material
available against them.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
24/12/2022
complainant
has
conducted
raid
and
apprehended accused. On looking to the seizure panchanama
the drugs seized from petitioner herein is weighing 2 Kgs., 515
grams 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 1000 grams is small quantity and 20 Kgs., is commercial
quantity. In this case the quantum of ganja seized is 2 Kgs.,
515 grams of ganja
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
CCH33
Crl.Misc.No.12756/2022
7
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
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 2 Kgs., 515 grams of ganja 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.
12. The major portion of the investigation is concluded.
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 residing in the address
8
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.
He shall not leave the jurisdiction of this
court without prior permission.
3.
He shall not tamper the witness or
abscond.
4.
He shall cooperate
investigation.
with
I.O
for
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Crl.Misc.No.12756/2022
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.
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 7th day of JANUARY 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.