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.10875/2022
Petitioner :
(accused No.2)
Mohamad Rafic, S/o.Abdul Rehaman
a/a 29 years, R/at Suneeth Building,
19th Main Road, Chikka Madiwala,
Bengaluru
Permanent R/at No.108­2(1),
Guruvayyana Kere, Belthangadi
Taluk, Dakshina Kannada District.
(By Sri Venkatesh Reddy, Adv.)
V/S.

Respondent :
State by Surya Nagar PS,
Bengaluru
(By Public Prosecutor)
ORDER
The present petition is filed by the petitioner U/s.439
of Cr.P.C., to enlarge him on bail, in Cr.No.314/2022 of
Surya Nagar PS., registered for the offence punishable
U/Sec 20(b) of NDPS Act.

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 no knowledge of alleged crime
and falsely implanted at the instance of extraneous
elements. The mandatory provisions of NDPS Act has not
been complied. There are no eye witnesses who speak about
the sale of alleged contraband. 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 objection raised by the prosecution is that the
investigating agency has in all seized 1 Kg 740
grams of
ganja from the possession of the accused. The accused is
found to be in possession of narcotic substance. A detailed
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CCH­33
Crl.Misc.No.10875/2022
mahazar is drawn in the spot. Personal search is conducted.
The offence alleged against the petitioner is punishable with
rigorous imprisonment for a term which shall extend upto
10 years. There is a primafacie case available against the
petitioner. He is an habitual drug dealer.

In the event of
grant of bail, he would abscond and may hamper the
investigation. Hence, sought to reject the bail plea of
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:
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REASONS
Point No.1: The ASI of Surya Nagar PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:­
On 28.10.2022, at 11.30 AM., when the complainant
was discharging duties in the station, he has received a
credible information that with in the jurisdiction of the
respondent police at Iggaluru village BMTC depot, Vakkil
Layout road, besides a Railway track, in front of Anjaneya
Temple, two persons were selling contraband ganja to the
public. On receipt of the information he has informed the
same to his higher officer PI., he has obtained permission
from ACP, Dy.SP Anekal Sub division to conduct raid. He
along with panchas had been to the spot at 12.45 noon and
mounting surveillance in the spot. He has seen two persons
showing some packed items to the public moving there in
the area. He has send a decoy to the said persons. The said
decoy had signaled on confirming about the sale of ganja.
The said persons were surrounded around 1.00 pm.

On
enquiry they have revealed their names as Sanotosh
s/o.Babu and Mohammed Rafeeq.

Accused No.1 has
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CCH­33
Crl.Misc.No.10875/2022
informed that he got acquainted with accused No.2 and they
were consuming ganja. At Tamil Nadu, near Sulagiri at a
place called Tirthum one lady is selling ganja to the public
there one could get ganja for lesser price. Ganja to the tune
of 1 kg., 700 grams and they were selling it to the public for
higher price. Immediately gazetted officer was called to the
spot in the presence of gazetted officer personal search of
accused was conducted.

During personal search in the
pant pocket of accused persons there was small packets of
ganja.

When the said ganja was weighed in a weighing
machine it came around 1 Kg., 700 grams. The said ganja
was seized under the mahazar. A report is prepared and
submitted before the SHO., which is the basis to register the
case against the accused in Cr.No.314/2022 for the offences
punishable U/s.20(B) and 25 of NDPS Act.

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.

6
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 1 Kg 740 grams of ganja is
seized from the petitioner and other accused. 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
28.10.2022
apprehended
complainant
accused.

has
On
conducted
looking
to
raid
the
and
seizure
panchanama the drugs seized from accused is weighing 1
Kg 740 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 19.10.1001 at
Sl.No.55 the narcotic drug­ganja 1000 grams is small
quantity and 20 Kgs., is commercial quantity. In this case
the quantum of ganja seized is 1 Kg 740 grams of ganja is
an intermediate quantity. As per the decision of Hon’ble
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Crl.Misc.No.10875/2022
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 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 1 Kg 740 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 investigation in the case is
concluded as the incriminatory article is already seized from
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accused.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life. Further
custodial interrogation is not warranted. His 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 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
executing
personal
is
enlarged
bond
for
on
a
bail
on
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.

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CCH­33
Crl.Misc.No.10875/2022
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.

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.

with
I.O
for
[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.