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 4th DAY OF JANUARY 2023
Crl.Misc.No.12529/2022
petitioners :
(accused No.1 & 2)
1. Nandisha, S/o.Narasiyappa, 27
years, R/at.Chamundipura,
Rajagopalanagar, Bangalore.
2. Krishnanayaka,
S/o.Seetharamanayaka, 27
years, R/at.Muneshwara
Extension, Near Laggere Bus
stop, Laggere, Bangalore.
(By Sri.MMR., Adv.)
V/S.
Respondent :
State by Rajagopalanagar PS
(By 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.443/2022 for the
offences punishable U/Sec.20(B) of N.D.P.S. Act.
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2. The grounds urged by the petitioners for grant of bail
are as under:
That the petitioners are very innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged. They have no knowledge of alleged crime
and falsely implanted at the instance of extraneous elements.
The complainant have
not seized any contraband from the
possession of the petitioners. They are the only earning
member of their family. The mandatory provisions U/s.50 of
NDPS Act have not been complied. Though the alleged offence
are
non
bailable,
but
are
neither
punishable
with
imprisonment for life or death sentence. 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. They have
no bad antecedents. They are the sole bread earners of their
family. Hence, sought to grant bail.
3. The objection raised by the prosecution are that the
investigating agency have in all seized 5 Kgs., 920 grams of
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ganja from the possession of the petitioners. The petitioners
are found to be in possession of narcotic substance. A detailed
mahazar
are
drawn
in
the
spot.
Personal
search
are
conducted. The offence alleged against the petitioners is
punishable with rigorous imprisonment for a term which shall
extend upto 10 years. There are a primafacie case available
against the petitioners. They are habitual drug dealers.
In
the event of grant of bail, they would abscond and may hamper
the investigation. 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:
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Point No.1: In the Affirmative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: The Police officer of
PS., has put the criminal law into motion.
Rajagopalanagar
The gist of the
allegation reads as here under:
On 17.12.2022 at about 3.30 pm., when the complainant
was in the station he has received credible information that
two persons are selling ganja to the customers in a house
bearing No.5, 8th Cross, Chamundipura, Rajagopalanagar,
Bangalore. On receipt of the information he has informed the
matter to the higher officer and obtained permission. He along
with his team and panchas went to the spot. The suspected
persons were found near a house moving suspiciously. They
have enquired their names and addresses. They have revealed
their names and addresses. They have also stated that they
are in possession of ganja which they have kept in the house of
accused No.1.
the house search of accused
No.1 is
conducted. During house search ganja was found stored in a
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bag. The weight of the ganja came around 5 Kgs., 920 grams
of ganja. It was seized under the mahazar. Thereafter, a detail
seizure panchanama was drawn. A detail report was prepared
and submitted before SHO. Thereafter they were arrested and
produced before jurisdictional Magistrate and were remanded
to JC. The petitioners herein is Accused No.1 & 2 in the case.
8.
It are argued by the learned counsel for petitioners
that they are planted in the case by the complainant police
they are unaware of seized drug. The seized article are not
commercial quantity. The mandatory provisions of Sec.50 of
the Act is not complied. they are permanent residents of the
address given in the cause title. In the event of grant of bail
they are ready to abide by the conditions which are being
imposed by this court.
9. It are argued by the prosecution that the petitioners
have committed heinous offence 5 Kgs., 920 grams of ganja
are seized from the petitioners. The offence punishable with
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imprisonment upto 10 years and with fine. There are prima
facie material available against them.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it are evident that on
17.12.2022
complainant
have
conducted
raid
and
apprehended accused. On looking to the seizure panchanama
the drugs seized from accused are weighing 5 Kgs., 920 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 are small quantity and 20 Kgs., are commercial
quantity. In this case the quantum of ganja seized are 5 Kgs.,
920 grams 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 are held that:
Ss.37 and 20 – Bail – grant of – non commercial quantity –
quantity involved being only 14 Kgs., of ganja, which are a
non commercial quantity appellant accused not involved in
any other case – in above circumstances, held, appellant
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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
are
intermediate quantity and it are 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 5 Kgs., 920 grams of ganja which are
an intermediate quantity. When the quantity are 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 are
concluded as the incriminatory article are already seized from
accused.
The offence alleged against the petitioners is not
punishable with death or imprisonment for life. Further
custodial interrogation are not warranted. their Voluntary
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statement are already recorded.
As per the information
provided by the petitioners they are permanently residing in
the address shown in the cause title. The apprehension of the
prosecution that they 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 petitioners U/Sec.439 of
Cr.P.C are hereby allowed.
The
petitioners
are
enlarged
on
bail
on
executing personal bond for a sum of Rs.1,00,000/
each with two sureties for the like sum with following
conditions.
1.
The petitioners 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 are
earlier.
2.
They shall not leave the jurisdiction of this
court without prior permission.
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3.
They shall
abscond.
not
tamper
4.
They shall
investigation.
5.
They shall not commit similar offence or
any offence while on bail.
6.
They shall furnish their photo ID proof and
local address proof document before the
court and photo ID proof of their sureties.
7.
They shall appear before the court on all
hearing dates.
8.
Breach of any of the conditions by the
petitioners would entail cancellation of bail.
cooperate
the
with
witness
I.O
or
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 4th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.