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 NOVEMBER 2022
Crl. Misc.No.10595/2022
Petitioners :
(accused Nos.6 & 7)
1. Manshan Nasheed, S/o.Rayin,
a/a 37 years, R/at Kottakal
(Village), Mallapuram, Kerala
District676505.
2. Mohammed Bilal,
S/o.Mohammed Kareem, a/a 24
years, R/at NASR Apartment,
Niloufer Road, Hyderabad,
Telangana500 004
(Both Petitioners are in JC)
(By Sri.Nithin Gowda.K.C., Adv.
V/S.
Respondent :
State by Ashoknagar PS.
(By learned Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.288/2022 of
2
Ashoknagar
Police
Station
registered
for
the
offences
punishable U/Section 8(c), 20(ii) (B) and 22(c) of NDPS Act and
Sec 14 of Foreigners Act.
2. The grounds urged by the petitioners for grant of bail
are as under:
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 offences are 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 petitioners are permanent
residents of the address shown in the cause title. 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.
3
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Crl.Misc.No.10595/2022
3. The prosecution while opposing the bail petition
contended that the I.O has seized 65 grams of MDMA, 1 KG
100 gram Ganja. The offences alleged against the petitioners
are punishable with rigorous imprisonment for a term upto 20
years and shall also be liable to fine.
There is a primafacie
case available against the petitioners. They are habitual drug
dealers. There is primafacie case made out against petitioners.
If petitioners are released on bail, they will continue the
profession of narcotic drug selling, and they may abscond and
tamper evidence of the prosecution. Hence, sought to reject the
bail plea of petitioners.
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 petitioners have made out
sufficient grounds to enlarge them on
bail?
2. What order?
6. My findings on the above points are as under:
4
Point No.1: In the Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The PSI of Ashoknagar PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 3.10.2022 at 21.10 hours when the complainant was
discharging duties in the police station he has received
credible information that at Residency Road, near Opera
Circle, three persons would come to sell contraband MDMA in
their Honda City White car bearing No.KL 44 F 4621 around
21.45 hours to 22.00 hours.
The complainant immediately
informed the matter to ACP Cubbon Park obtained permission
to conduct raid. He has registered a case in Cr.No.288/22 for
the offences punishable U/s.8(c), 20(ii) (B) and 22(c) of NDPS
Act and Sec 14 of Foreigners Act. Thereafter he has proceeded
to the spot along with the staff and panchas and had been to
the spot at about 22.00 hours. There the complainant has seen
three persons sitting in a Honda City Car bearing No.KL 44 F
CCH33
Crl.Misc.No.10595/2022
5
4621. On enquiry the said persons had revealed their names
and addresses as Md.Haroon, Md. Oruvil and Md.Ilyas. They
are the residents of Mallapuram district, Kerala. On enquiry
they have revealed that they have stored contraband MDMA in
the dash board of the car. In the presence of gazetted officer
ACP their personal search is conducted. 1.Kg., 100 grams of
ganja 5 grams of MDMA was seized from their conscious
possession. On further probing they have revealed that they
have purchased contraband from one Abdurabu, Mohamed
Musa and Sudan Khrtoum Bhaye they are the citizens of
Yemen and Sudan and are selling to the public.
They have
also stated that the said accused persons were having
contraband in their house. Basing the statement of accused
No.1 to 3 complainant has assigned the staff to apprehend the
said
persons.
On
5.10.2022
the
said
persons
were
apprehended by the complainant and from their conscious
possession i.e., accused No.520 grams of MDMA, accused
No.6 20 grams of MDMA and from A7 20 grams of MDMA
crystals were seized. The contraband was seized under a detail
mahazar. Accused Nos.5 to 7 were arrested on 5.10.2022 and
6
they were produced before the court and remanded to judicial
custody. The present petitioners are accused Nos.6 and 7 in
the case.
8. It is vehemently argued by the learned counsel for the
petitioner that while conducted the field test the agent used to
determine the product as MDMA is not stated in the
investigation papers. The sample has to be given to the court.
It is a synthetic drug. MDMA is in the form of crystal, powder,
capsule, pills the procedure contemplated U/s.50 of NDPS Act
is not followed. The test memo is not produced. The search
and seizure is illegal. Arrest made is illegal.
9. He is referred to catena of decisions of Hon’ble Apex
Court, judgment of Hon’ble High Court of Calcutta, Bombay
Orissa and Gujarat in support of his contention about non
following the statutory requirements and non submission of
test memo and other contentions.
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Crl.Misc.No.10595/2022
7
10. The Hon’ble Apex Court in state of Rajasthan Vs.,
Parmanand and another reported in (2014) 5 SCC 345 has
discussed several aspects of the case. It is held that a joint
communication of the right available under Sec.50(1) of the
NDPS Act to the accused would frustrate the very purport of
Sec.50. Communication of the said right to the person who is
about to be searched is not an empty formality.
it has a
purpose. Most of the offences under the NDPS Act carry
stringent punishment and, therefore, the prescribed procedure
has
to
be
meticulously
followed.
These
are
minimum
safeguards available to an accused against the possibility
communication who is is not a empty formality.
purpose.
It has a
Most of the offences under the NDPS Act carry
stringent punishment and, therefore, the prescribed procedure
has to be meticulously followed.
These are minimum
safeguard available to an accused against the possibility of
false involvement. The communication of this right has to be
clear, unambiguous and individual.
The accused must be
made aware of the existence of such a right. This right would
be of little significance if the beneficiary thereof is not able to
8
exercise it for want of knowledge about its existence. A joint
communication of the right may not be clear or unequivocal. It
may create confusion.
It may result in diluting the right.
Hence, the accused must be individually informed that under
Sec.50(1) of the NDPS Act, he has a right to be searched before
the nearest gazetted officer or before the nearest Magistrate.
Here in this case the accused have apprised of their right to
have
personal search
that
have
been
followed
by the
investigating agency. That apart the contention raised by the
petitioner at this stage need not be dwell upon in detail as this
court is looking into the aspect of prima facie material at the
stage of considering the bail. The principle laid down in the
dictum is well settled and this court is bound to follow the
principle the said aspect is a matter to be considered at the
time of full fledged trial.
In the case of Sanjeev and anr., Vs., State of Himachal
Pradesh reported in (2022) 6 SCC 294, the judgment of
reversal of acquittal by the Hon’ble High Court of Himachal
Pradesh has been upheld by the Hon’ble Apex Court. In the
said case the accused is prosecuted under the provisions of
9
CCH33
Crl.Misc.No.10595/2022
Sec.20 of NDPS Act. Further the FSL report does not speak
about the resin seized in the case was of cannabis plant in
order to bring it within definition of Charas. Further the
accused has not been given option to be searched before a
gazetted officer or Magistrate. On the merits of the case, the
judgment of acquittal by the Hon’ble High Court has been
upheld by the Hon’ble Apex Court. But we are considering the
bail plea of petitioner, at this stage with due respect it may not
be made applicable to the present case.
He has also referred to the judgment of Hon’ble Apex
Court in the case of Sanjeet Kumar Singh @ Munna Kumar
Singh Vs., State of Chattisgarh reported in 2022 SCC online
SC 1117, in the said case also the judgment of conviction has
been challenged before the Hon’ble Apex Court while setting
aside the order of judgment of conviction several aspects has
been dealt in detail in the dictum. There is no compliance of
sec.50 in the said case. On assessment of the evidence
available in the said case the Hon’ble Apex Court has reversed
the judgment of conviction.
10
Here again, this court is dealing with the bail plea of the
petitioner. The aspects to be considered while considering the
bail plea is the primafacie case, nature of gravity of allegation,
securing the accused during the course of trial, rigors of sec.37
as the quantum of contraband seized is a commercial quantity.
Therefore, with due respect the said case law may not be made
applicable to the present facts.
He has also referred to the dictum of Hon’ble High Court
of Bombay reported in 2021 SCC Online Bom 3051 in the case
of Sagar Parshuram Joshi Vs., State of Maharashtra, Hon’ble
High Court of Calcutta reported in 2022 SCC online Cal 1545
in the case of Ishdan Seikh Vs., Union of India and the dictum
of Hon’ble High Court of Orissa at Cuttack reported in 2022
SCC online Ori 2203 in the case of Kishore Bira Vs., State of
Odisha. In the case of Sagar Parshuram Joshi, the accused
has sought statutory bail wherein the charge sheet has been
filed without the chemical analysis report. In the said case, the
accused has been enlarged on bail holding that the report of
the chemical analyser lays the foundation of the accused
11
CCH33
Crl.Misc.No.10595/2022
culpability, without which even the trial court cannot form an
opinion and can take the cognizance.
In the case of Kishore Bira Vs., State of Orissa the
accused moved bail before the Hon’ble High Court of Cuttack.
The accused has been prosecuted for possessing commercial
quantity of contraband ganja. On discussing the facts in the
said case, the Hon’ble High Court of Orissa granted bail to the
accused in the said case. I have carefully gone through the
judgments referred to by the learned counsel for petitioner.
The facts and circumstances in the present case is different
from the said facts, hence, with due respect it may not be
made applicable to the present case.
11.
On careful analysis of rival contentions and the
prosecution papers available on record. The investigating
agency seized 65 grams of MDMA from the conscious
possession of present petitioners and accused No.5. Basing on
the statement of accused Nos.1 to 3, the present petitioners
were apprehended. The quantum of MDMA seized from
accused Nos.6 and 7 i.e., the present petitioners is 40 grams.
12
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.134 the narcotic drug MDMA 0.5 grams is
small quantity and 10 grams is commercial quantity. The
contraband seized from the present petitioners is 40 grams is
commercial quantity.
The petitioner No.1 herein hails from
Kerala state and petitioner No.2 from Telangana State. Huge
quantum of contraband is seized from their conscious
possession. The investigation in the case is pending. The
contention raised by the learned counsel for petitioner that the
field test conducted which does not indicate the agent used to
determine the product as MDMA may not be appreciated at
this stage as this court is considering the bail plea of the
petitioners basing on the primafacie material placed on record
by the prosecution. The said aspect raised by the petitioner
counsel has to be appreciated at the time of full fledged trial.
The FSL report is not yet received. The scientific analysis of
the product is yet to be conducted.
13
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Crl.Misc.No.10595/2022
12. 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.
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
14
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 non
application 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. 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
CCH33
Crl.Misc.No.10595/2022
15
(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 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.
14. On looking to the prosecution papers the quantum
of narcotic substance seized in this case is 40 grams of MDMA
from the present petitioners.
apprehended
by
the
The present petitioners were
investigating
agency
and
seized
commercial quantity of MDMA. The NDPS Act provides
deterrent punishment for various offences relating to illicit
trafficking in narcotic drugs and psychotropic substances. 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
16
“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
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 dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
17
CCH33
Crl.Misc.No.10595/2022
“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
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. Here in the present case the petitioners
were apprehended and 40 grams of MDMA seized from the
present petitioners.
At this stage, there are primafacie
18
material available against the petitioners in regard to the
possession of commercial quantity of narcotic drug.
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.
15. Point No.2:
following:
In the result, I proceed to pass
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 NOVEMBER 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*