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 19th DAY OF OCTOBER 2023
Crl. Misc.10124/2023
Petitioner :
(accused No.1)
Nizammuddin @ Syed Nizam S/o
Syed Maqsud, Aged 32 Years, R/at
No.5, 6th Cross, King Palace, Arafath
Nagara, Old Guddadahalli, JJR
Nagara, Bengaluru – 560 026,
(By Sri H.S. Muniswamy Gowda,
Adv.)
V/S.
Respondent :
State by K.P. Agrahara 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.175/2023 of
K.P. Agrahara PS., registered for the offence punishable
U/Sec.20(B) of N.D.P.S. Act.
2
2. The prevalent grounds urged seeking bail:
That the petitioner is very innocent and law abiding
citizen. 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 contraband
seized is not commercial quantity. He is in Judicial Custody
since the date of arrest. The petitioner is permanent resident
of the address shown in the cause title. 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 1 Kg., 70 Grams of ganja.
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 shall also be liable
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CCH33
Crl.Misc.No.10124/2023
to fine. 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 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
7. POINT NO.1: A report submitted by PI, who is the
complainant in this case before the K.P. Agrahara PS. The
contents of the report is as here under:
On
10.10.2023
at
about
4.15
pm.,
when
the
complainant was discharging his duty in the station, he has
received credible information that through informant that at
Telecom layout, Ambedkar Extension Park road footpath a
person is selling contraband to the public. On receipt of the
said information he has informed same to ACB and obtained
permission to conduct raid. At 5:00 p.m., he has visited the
spot and found the suspect in the spot who was moving
there suspiciously carrying a bag. He was surrounded and
apprehended.
On enquiry, he has revealed his name as
Nizamuddin, son of Syed Maqsud.
When the bag was
checked, it was containing Ganja and the weight of Ganja is
1 kg., 70 grams.
A detail mahazar is drawn and
incriminatory ganja is seized. The petitioner was arrested,
produced before the court and remanded to judicial custody.
CCH33
Crl.Misc.No.10124/2023
5
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 search
and seizure 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., 70 grams of ganja is
seized from the petitioner. The offence punishable with
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 is evident that on
10.10..2023
complainant
apprehended
petitioner.
has
On
conducted
looking
to
raid
the
and
seizure
panchanama the drugs seized from petitioner herein is
weighing 1 Kg., 70 Grams of ganja. As per specification of
small
and
commercial
quantity
of
narcotic
drug
or
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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., 70 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 1 Kg., 70 Grams of ganja
which is an intermediate quantity. When the quantity is less
than commercial quantity, rigors of Sec.37 of the NDPS Act
CCH33
Crl.Misc.No.10124/2023
7
will not attract, and factors become similar to bail petitions
under regular statues normal, unless the prosecution points
towards exceptional circumstances.
12. The investigation is concluded and charge sheet is
filed.
The offence alleged against the petitioner is not
punishable with death or imprisonment for life. Further
custodial interrogation is not warranted. 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 allowed.
The petitioner is enlarged on bail on executing
personal bond for a sum of Rs.1,00,000/ with one
surety for the like sum with following conditions.
1. The petitioner shall give attendance before the
concerned I.O., once in a month i.e.,
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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 cooperate with I.O for investigation.
5. He shall not commit similar offence or any
offence while on bail.
6. He shall furnish his photo ID proof and
photo ID proof of his sureties.
7.
He shall appear before the court on all dates
of hearing.
8. Breach of any of the conditions by the
petitioner would entail cancellation of bail.
[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 19th day of October 2023)
CN/*
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.