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 APRIL 2024
Crl. Misc.No.2934/2024
petitioner :
(accused No.1)
Om Prakash Gupta, s/o.Hiralal
Gupta, A/a 36 years, R/at Village­
Govind Nagar, Post­Bhanpur
Khajuriya, Tehsil, Paliakala,
District­Lakhimpur Kheri,
Uttar Pradesh­262904
(By Sri RRK Adv.)
V/S.

Respondent :
State by Union of India,
Intelligence Officer
Narcotic Control Bureau,
Bangalore Zonal Unit,
Bangalore.
(By Spl.Public Prosecutor)
ORDER
This is the second bail petition U/Sec.439 of Cr.P.C.,
filed
by
the
petitioner
to
enlarge
him
on
bail,
in
2
NCB..No,48/1/8/2022
of
BZU.,
(Spl.C.C.2183/2022)
registered for the offences punishable U/Sec.8(c),R/w 20(b) (ii)
(c), 27, 27A,28, 29 of N.D.P.S. Act.

2. The prevalent grounds urged seeking bail:­
The petitioner is innocent against the allegations made
against him. He has been falsely implanted in the case. NCB
police have arrested a wrong person.

They have not video
graphed and photographed the search and seizure. The
petitioner has been falsely implanted in the case.
from the respectable family.

He hails
A false and fictitious story has
been cooked up by the respondent and the petitioner was
made a scapegoat in connection to the above 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. If
he is detained in the Central prison his career will be spoiled in
the midst of the other criminals in the prison. The petitioner is
the permanent resident of the address shown in the cause
title. The petitioner is ready and willing to abide by any
3
CCH­33
Crl.Misc.2934/2024
conditions imposed by this court in the event of grant of bail.
He is ready to offer surety for their 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 3.176 Kgs of Charas/
Hashish from the conscious possession of the accused
persons. 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 to fine.
The investigation is completed and complaint is filed. In the
event of his release he may tamper with the prosecution
witnesses.

Incriminatory
articles were
seized
from their
custody. petitioner along with the other accused is doing drug
trafficking business and he is found in possession of
commercial quantity of contraband. That apart it is contended
that the petitioner along with accused No.2 is travelling in a
train carrying commercial quantity of contraband. In the event
of grant of bail he may abscond and may hamper the trial. The
allegation is serious in nature. The petitioner is not entitled
4
for bail. 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 have 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:
REASONS
7. POINT NO.1:­ The IO, NCB Bangalore., has launched
the criminal prosecution against the petitioner.

As per the
details referred in the investigation papers on 12/04/2022 the
complainant has received credible information that one person
names Om Prakash Gupta along with another person named
Pankaj Verma are travelling from Aishbagh (UP) on 11.4.2022
5
CCH­33
Crl.Misc.2934/2024
and they are going to reach Bangalore on 13.4.2022 in
Gorkhpur SF Express Train No.22533 in coach S4, Seat
Nos.29 and 30 and were carrying charas (Hashish) a narcotic
drug in their luggage bag and would probably get down at
Yeshwanthpur Jn., railway station on 13.4.2022 and hand
over the contraband at Bangalore to a person name Anurag
Kumar Halwai who is residing at Bangalore.. If the said
persons are intercepted at Yeshanthpur Jn., Railway station
and
searched,
the
said
contraband
can
be
detected.

Immediately on receipt of the information the NCB team has
organised the raiding team and reached the spot at 1.20
hours.

The petitioner herein and another accused Pankaj
Verma were intercepted at Platform No.5, in Gorakhpur SF
Express Train No.22533 in coach S4, Seat Nos.29 and 30.
when the said persons were subjected to search they were
found in conscious possession of 3.176 Kgs., of charas. The
said contraband was seized under a detail mahazar dated
13.4.2022.

Notice was issued to the present petitioner and
accused No.2 U/s.67 of NDPS Act to appear at NCB office. On
preliminary inquiry petitioner herein has informed that he has
6
stated that he is going to deliver the said charas to one Anurag
Kumar Halwai, Bangalore. The detail address of Anurag was
also furnished by him.

Anurag Kumar Halwai was issued
notice U/s.67 of NDPS Act to appear at NCB office on
13.4.2022 and their statements came to be recorded.

While
recording the statements the said Anurag Kumar Halwai also
informed that he is doing drug business to earn easy money.
Accused No.2 has also revealed that he is doing business along
with the other accused.

Basing on the voluntary statement
and material collected, the accused were arrested and they
were prosecuted U/s.8(c) R/w.Sec.20(b)(ii)(c), 27, 27A, 28 and
29 of NDPS Act. The petitioner was produced before the court
and was remanded to judicial custody.

8.

It is the contention of petitioner that he has been
falsely implanted in the case. NCB police have arrested a
wrong person. They have not video graphed and photographed
the search and seizure. The petitioner has been falsely
implanted in the case. He hails from the respectable family.

CCH­33
Crl.Misc.2934/2024
7
9.

The prosecution while seriously opposing the bail
petition contends that petitioner along with the other accused
is doing drug trafficking business and he is found in
possession of commercial quantity of contraband. That apart
it is contended that the petitioner along with accused No.2 is
travelling
in
a
train
carrying
commercial
quantity
of
contraband. The investigation is completed and complaint is
filed. The quantum of contraband seized is a commercial
quantity.

In the event of grant of bail he may abscond and
may hamper the trial. The allegation is serious in nature. The
petitioner is not entitled for bail.

10. On careful contentions of the rival contentions, the
petitioner along with accused No.2 is travelling from
from
Aishbagh (UP) on 11.4.2022 and they are going to reach
Bangalore on 13.4.2022 in Gorkhpur SF Express Train
No.22533 in coach S4, Seat Nos.29 and 30 when intercepted
was
found
in
charas/hashish.
mahazar.

possession
of
3
Kgs.,
176
grams
of
The said article was seized under the
It was also tested with DD Kit found to be
8
hashish/charas. 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 at Sl.No.23 the narcotic drug
– Charas/Hashish weighing 1 Kg., is commercial quantity. In
the present case 3.176 Kgs., of charas/hashish narcotic
substance is seized which is a 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
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
9
CCH­33
Crl.Misc.2934/2024
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.

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
10
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 held to be incorrect 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.

12. At this stage, it is necessary for me to refer to the
judgment of Hon’ble Apex Court reported in (2009) 2 Supreme
Court Cases 624 in Union of India Vs., Rattan Mallik @
11
Habul.

The Hon’ble Apex Court
CCH­33
Crl.Misc.2934/2024
made the following
observation at para­8 to 10 of the judgment while dealing with
a bail petition in NDPS case:­
“While dealing with the bail application the High Court
appears to have lost sight of the mandatory requirements
of Section 37 of the NDPS Act and thus, the order is
clearly unsustainable. The broad principles which should
weigh with the Court in granting bail in a non­bailable
offence have been enumerated in a catena of decisions of
the Supreme Court. When a prosecution/conviction is for
offence(s) under a special statute and that statute
contains specific provisions for dealing with matters
arising thereunder, these provisions cannot be ignored
while dealing with such an application. The respondent
has been convicted and sentenced for offences under the
NDPS Act and therefore, while dealing with his application
for grant of bail, in addition to the broad principles to be
applied in prosecution for offences under the Indian Penal
Code, 1860 the relevant provision in the said special
statute in this regard had to be kept in view.

The aforesaid observation of Hon’ble Apex Court which has to
be looked into while considering the bail plea of petitioner. The
Non obstinate clause in Sec.37 restricts the power of the court
in granting the bail unless the following conditions are
satisfied i.e., the Public prosecutor has been given an
opportunity to oppose the application for such release, and
where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that
12
he is not guilty of such offence and that he is not likely to
commit any offence while on bail. Here in this case there is an
allegation against the present petitioner that he was doing
drug peddling along with other accused. From the conscious
possession of
accused Nos.1 and 2 ­ 3 Kgs., 176 grams of
hashish is seized which is a commercial quantity.
13.

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 prima
facie 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.

13
CCH­33
Crl.Misc.2934/2024
Further in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001(7)SCC 673
while considering an appeal against an order of the High Court
allowing the second bail petition of the respondent who was
petitioner under the NDPS Act has held that :
“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 petitioner is not guilty of the
offences with which he is charged and further that he is 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 petitioner is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him to a bail. In the
14
present case, the petitioner 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
petitioner or not. At this juncture, we cannot say that the
petitioner is 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 he is not 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 petitioner 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 petitioner
is not guilty and that he is not likely to commit any offence
while on bail. In this case, in all 3.176 Kgs., of hashish seized
from the present petitioner and accused No.2. At this stage,
there is primafacie material available against the petitioner in
regard to drug trafficking. The learned counsel for petitioner
have failed to place any addl., material before this court that
15
CCH­33
Crl.Misc.2934/2024
the present petitioner was not connected to drug peddling. In
the result, I proceed to hold that the petitioner herein has not
made out any addl. grounds to entertain his plea for bail.
Accordingly, I answer point No.1 in the Negative.
14. 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 19th day of April 2024]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.
CN/*