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 4 th DAY OF JULY 2022
Crl.Misc.No.6278/2022
Petitioner :
(accused No.1)
Naresh Behra, S/o Gayadar Behra,
aged about 47 years, R/at No.7, Near
Royal Bakery, Mori Gate, Near Wipro
Company, Junnasandra, Sarjapura,
Bengaluru
(By Sri STN.Adv.)
V/S.
Respondent :
State by Beguru PS
(By Public Prosecutor)
O R DE R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioner to enlarge him on bail, in Cr.No.162/2022 of Beguru
PS., registered for the offence punishable U/Sec.20(B)
of
NDPS Act.
2. The grounds urged by the petitioner for grant of bail
are as under:
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 no knowledge of alleged crime and
falsely implanted at the instance of extraneous elements. 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. Hence, sought to grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 4 Kgs., 720 grams
ganja from the possession of the accused.
of
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
CCH-33
Crl.Misc.No.6278/2022
3
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:
REASONS
7. POINT NO.1:- The petitioner is prosecuted for the
offence
punishable
U/s.20(B)
of
NDPS
Act.
He
was
apprehended by the PSI., Beguru PS., on 17.6.2022 at 5.55
4
pm., in a vacant space adjacent to site No.95, AECS Layout, C
block, near Basapura Main road, Chikkabeguru.
The complainant PSI., has received information that on
17.6.2022 that there is sale of ganja by an unknown person in
the vacant space adjacent to site No.95, AECS layout,
Basapura main road.
On receipt of the information he has
made a detail report and registered a suo-moto case in
Cr.No.162/2022 of Beguru PS for the offence punishable
U/Sec.20(B) of NDPS Act against unknown person. Thereafter,
as provided under the act he has sought permission of higher
officer to conduct raid. After taking permission he along with
panchas and staff had been to the spot and found the
suspected person. On enquiry he has revealed his name and
address. On personal search of the said person 1 Kg., 190
grams of ganja was found. The said ganja was seized under
detail mahazar. Petitioner during interrogation has stated that
he has purchased the ganja from one Akshay Bindani and
Tapan Kumar of Odissa State.
He is selling ganja to the
public. The said ganja has been noted in PF No.82/2022. 20
plastic covers found in the possession of the accused was also
5
CCH-33
Crl.Misc.No.6278/2022
seized. With a detail report, petitioner is produced before the
court and remanded to judicial custody.
Basing on the statement of the present petitioner,
accused Nos.2 and 3 were apprehended by the investigating
agency.
They
were
apprehended
on
21.6.2022
at
Subashnagar, near Nice road bridge, Basapura main road.
The investigation officer has received the information that they
are going to arrive to the same spot with contraband. He has
constituted a raiding team, visited the spot and apprehended
accused Nos.2 and 3. on searching accused Nos.2 and 3, he
has found 3 Kgs., 530 grams of ganja from their possession.
The said ganja is seized under detail panchanama. They were
arrested and produced before jurisdictional Magistrate and
was remanded to JC.
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 resident of
6
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., 190 grams of ganja seized
from the present petitioner. The said offence punishable with
imprisonment upto 10 years and with fine. There are prima
facie material available against him.
10.
On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
17.6.2022 complainant has apprehended present petitioner.
At the instance of present petitioner 1 Kg., 190 grams of ganja
is seized.
Basing on the voluntary statement of present
petitioner, accused Nos.2 and 3 were arrested and at their
instance 3 Kgs., 530 grams of ganja is seized.
The total
quantum of ganja seized at the instance of present petitioner,
accused Nos.2 and 3 is 4 Kgs., 720 grams. As per specification
of small and commercial quantity of narcotic drug or
CCH-33
Crl.Misc.No.6278/2022
7
psychotropic
Department
substance
of
Revenue
issued
by
Ministry
Notification
of
S.O.1055(E)
Finance
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 4 Kgs., 720 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
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 4 Kgs., 720 grams of ganja which is an
8
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
accused.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life.
custodial
interrogation
is
not
warranted.
His
Further
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
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CCH-33
Crl.Misc.No.6278/2022
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
co-operate
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 4th day of July 2022)
10
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.