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 22nd AY OF NOVEMBER 2022
Crl.Misc.No.10935/2022
Petitioner :
Mohammed Ikramulla, S/o.Afzal
Pasha, a/a 29 years, R/at No 305, 1st
Cross, 1st Main Road, Umar Nagar,
Govindapura, K.G.Halli, Benglauru
(By Sri. Kiran Kumar.M. Adv.)
V/S.
Respondent :
State by Vyalikaval 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.132/2022 of
Vyalikaval
PS.,
registered
for
U/Sec.20(b) (ii) (B) 8 of NDPS Act .
the
offence
punishable
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
complainant
has
not
seized
any
contraband
from
the
possession of the petitioner. He is the only earning member of
his family. The mandatory provisions U/s.50 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.
grant bail.
Hence, sought to
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Crl.Misc.No.10935/2022
3. The objection raised by the prosecution is that the
investigating agency has in all seized 1 Kg 50 grams of ganja
from the possession of the accused. The accused is found to
be in possession of narcotic substance. A detailed 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:
4
Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The PSI of Vyalikaval PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 05/11/2022 at 12.00 PM when the complainant PSI
was in the station has received the credible information that
at 1st main road, LPO Ground, Vyalikaval one person came
there to sell contraband to the public. On receipt of
information he has informed the matter to his higher officer
and obtained permission to conduct raid. He along with staff
and panchas had been to the spot around 12.30 PM and
mounted surveillance in the spot and apprehended one person.
On enquiry he has revealed his name and address as
Mohammed Ikramulla, S/o.Afzal Pasha.
On conducting the
personal search and the search of the bag leaf like substance
was found in the bag and on testing the same it is found to be
contraband ganja. In the presence of gazetted officer personal
CCH33
Crl.Misc.No.10935/2022
5
search of accused is conducted.
During personal search of
accused no contraband is recovered.
In the bag of accused
ganja was found when it was weighed it came around 1 Kg., 50
grams.
Samples were taken for forensic examination. A
detailed report is submitted to SHO, Vyalikaval PS which is the
basis to register the case against the accused herein in
Cr.No.132/2022 for the offences punishable U/Sec.20(b)(ii) (b)
8 of N.D.P.S. 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. 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 50 grams of ganja is seized
from the petitioner and other accused. The offence punishable
6
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
5.11.2022 complainant has conducted raid and apprehended
accused.
On looking to the seizure panchanama the drugs
seized from accused is weighing 1 Kg 50 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 drugganja 1000 grams is
small quantity and 20 Kgs., is commercial quantity.
In this
case the quantum of ganja seized is 1 Kg 50 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
any other case – in above circumstances, held, appellant
CCH33
Crl.Misc.No.10935/2022
7
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 50 grams of ganja
intermediate
quantity.
When
the
quantity
which is an
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
accused.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
Further
8
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 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.
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Crl.Misc.No.10935/2022
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 22nd day of November 2022)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*