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 16th DAY OF SEPTEMBER 2022
Crl. Misc.No.8466/2022
Petitioner :
(accused No.2)
Nawaz Pasha @ Nawaz
S/o Late Syed Shafi,
Aged about 30 years,
R/at: No.452, Muthyalpete,
Shamir Mohalla, Mulbagal.
Kolar District563 131.
(By Sri. C.B.Abdul Sab., Adv.)
V/S.
Respondent :
State of Karnataka by Kalasipalya
Police Station, Bengaluru.
(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.27/2022 for the
offence punishable U/Sec.20(B) (ii) (C) of N.D.P.S. Act.
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2. The prevalent grounds urged seeking bail:
That the petitioner is very innocent and law abiding
citizens.
He has not committed any offence much less the
offence as alleged.
He has been falsely implicated by the
respondent in this case.
Though the alleged offence is 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 quantity seized from the
possession of the petitioner is less than commercial quantity.
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.
Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 20 Kgs., 215 grams of ganja
which is a commercial quantity. There are sufficient material
available against the petitioner, and the said offences are
punishable with rigorous imprisonment for a term which shall
not be less than 10 years which may extend to 20 years and
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Crl.Misc.No.8466/2022
shall also be liable to fine. The investigation is pending. In the
event of his release he may tamper with the prosecution
witnesses. Incriminatory articles were seized from his custody.
He may involve himself in similar offences.
Investigating
agency by complying the provisions prevailed under the act
has seized the contraband from the petitioner. The petitioner
herein would sell the drugs to the younger generation which
may ruin the career of younger generation. With these specific
pleas sought to reject the bail plea of the petitioner.
4. Heard learned counsel for the petitioner and the
prosecution.
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 Negative
Point No.2: As per the final order for the following:
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REASONS
7. POINT NO.1: The PSI of Kalasipalya PS., has put the
criminal law into motion. The gist of the allegation reads as
here under:
On 07.02.2022 at about 7:30 am,, complainant PSI has
received credible information that at New Guide hotel lane,
Near pradeep Circle two persons were selling contraband to the
public.
On receipt of the information he has informed the
matter to the higher officer and obtained the permission, called
the panchas to the station. Along with panchas and staff he
had been to the spot at about 8.15 a.m. He has found two
persons selling contraband to the public. They were carrying
plastic bag. When they were questioned about the said bags
they have revealed that they are carrying ganja.
When the
plastic bags were checked there were 10 packets of ganja
found in the bag. The ACP was called to the spot and in the
present of ACP, personal search of accused persons was
conducted. After the search of vehicle, accused persons and
the search of bag they have found ganja. The weight of ganja
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is 20 Kgs., 215 grams.
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Crl.Misc.No.8466/2022
It was seized under mahazar.
The
accused who were apprehended there were arrested. He has
brought the accused along with the seized contraband to the
police station.
SHO.
A detail report is prepared submitted before
The said report is the basis to the register case is
against Accused No 1 and 2 in crime No.27/2022 for the
offence punishable under Sec.20(B) (ii) (C).
The present
petitioner is accused No.2 in the case.
8.
The learned counsel for petitioner argued that the
investigating agency has not followed proper procedure while
conducting raid. He is innocent and falsely implanted in the
case. He is in no way connected to the crime. In the event of
grant of bail he is ready to offer solvent surety for his due
appearance before the court.
9. The prosecution contends that 20 Kgs., 215 gram of
Ganja, seized from the present petitioner and other accused
which is commercial quantity. The petitioner is habitual drug
peddler. In the event of their release he may abscond and may
repeat the crime and there is every possibility of absconding of
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the petitioner. The offences alleged are punishable U/s.20(c) of
N.D.P.S. Act is punishable with RI upto 20 years. The
petitioner is not entitled for bail.
10. On looking to the prosecution papers the quantum
of narcotic substance seized 20 Kgs., 215 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 drug – Ganja weighing
1000 grams is small quantity and 20 Kgs is a commercial
quantity. In the present case ganja seized is weighing 20 Kgs.,
215 grams which is commercial quantity.
11. 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
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Crl.Misc.No.8466/2022
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 drug
trafficking 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 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 nonapplication 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.
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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
(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 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.
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11.
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Crl.Misc.No.8466/2022
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances.
Hon’ble Apex Court
In the recent judgment of
in the case of State of Kerala Vs.,
Rajesh in (2020) 12 SCC 122 it is observed that
“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 :
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“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:
“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
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11
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 he is not likely to commit any offence
while on bail.
Here in the present case the petitioner was
apprehended and 20 Kgs., 215 grams
of Ganja, was seized
from the house of present petitioner.
The quantity of the
contraband is commercial quantity. At this stage, there are
primafacie materials available against the petitioner in regard
to the possession of narcotic drug.
Commercial quantity of
contraband is seized from the conscious possession of the
petitioner herein. At this stage, no material placed on record
by the defence to show that the accused is no way connected
with the contraband which is seized from him along with
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accused No.1.
In the result, I proceed to hold that the
petitioner herein have not made out any grounds to entertain
their plea for bail. Accordingly, I answer point No.1 in the
negative.
12. 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 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 16th day of September 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.