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 11th DAY OF JANUARY 2023
Crl. Misc.No.12662/2022
Petitioner :
(accused No.1)
Prakash, s/o.Jyothipas, 29 years,
No.6886, Infront of Railway station,
Vishwakarma road, Nehrunagar,
Hosur, Tamilnadu.
(By Sri.Prasanna Rao, 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
petitioner to enlarge him on bail, in Cr.No.54/2022 for the
offence punishable U/Sec. 20(b)(ii)(b) 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
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 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 21 Kgs., 181 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.12662/2022
shall also be liable to fine. The investigation is completed. 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
Rajagopalanagar PS., has
put the criminal law into motion.

The gist of the allegation
reads as here under:­
On 26.2.2022 when the complainant PSI was discharging
duties in the police station at about 5.30 pm., he has received
an information that at 12th Cross, Peenya 4th Stage, MS
Ramaiah footpath two persons are selling contraband in their
TVS star city vehicle.

Ion receipt of the information he has
called the panchas to the station, informed them about the
information he has received and requested them to be present
at the time of search and seizure. Prior to proceeding to the
spot they have conducted their personal search and proceeded
to the spot around 5.50 pm., and mounted surveillance
therein. Two persons were found in the spot when they were
enquired they revealed their names as Prakash S/o.Jyothipas
and Sundrapandi S/o.Murugan, who are natives of Tamil
Nadu state. On further enquiry they have revealed that they
are in possession of ganja. During personal search ganja was
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Crl.Misc.12662/2022
found packed in small packets weighing 10 grams each. When
the bike was searched they have stored ganja in a bag which
was in the dicky of the bike. The total ganja seized in the case
is 21 Kgs., 181 grams. The ganja and the vehicle seized under
the mahazar. He has submitted a report before the Station
House officer, basing on the said report case in Crime
No.54/2022 is registered against accused persons for the
offences
punishable
under
Sec.20(b)(ii)(B)
of
NDPS
Act.

Accused Nos.1 and 2 were arrested and produced before the
court. The present petitioner is accused No.1 in the case.

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.50 of the Act are
not complied. He is permanent resident 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. The prosecution opposed the bail plea on the ground
that the offence alleged against the petitioner is punishable
6
upto 10 years.

In the event of grant of bail he is going to
abscond and may hamper investigation.

10. On careful analysis of rival contentions and the
prosecution papers available on record, the investigating
agency seized 21 Kgs., 181 grams of ganja under the seizure
panchanama from accused No.1 & 2 which was being carried
in a two vehicle. On looking to the seizure panchanama the
drugs seized is weighing 21 Kgs., 181 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 is
small quantity and 20 Kgs., is commercial quantity.

In this
case the quantum of ganja seized from accused Nos.1 and 2 is
21 Kgs., 181 grams which is a commercial quantity.
11. On looking to the prosecution papers the quantum
of narcotic substance seized 21 Kgs., 181 grams of Ganja. The
NDPS Act provides deterrent punishment for various offences
relating to illicit trafficking in narcotic drugs and psychotropic
CCH­33
Crl.Misc.12662/2022
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substances. At this stage, it is necessary for me to refer to the
judgment
of
Hon’ble
Apex
Court
in
Crl.

Appeal
No.104153/2021 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
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 drug­trafficking 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
8
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
to have been considered by the Hon’ble High Court of
Lucknow.

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Crl.Misc.12662/2022
(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 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.
In the recent judgment of Hon’ble Apex Court 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
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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 :
“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 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
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Crl.Misc.12662/2022
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 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 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 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
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,
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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
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 21 Kgs., 181 grams of ganja was seized from
the vehicle of petitioner and other accused. 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. In the result, I proceed to
hold that the petitioner herein has not made out any grounds
to entertain his plea for bail. Accordingly, I answer point No.1
in the negative.

12. Point No.2:­ In the result, I proceed to pass following:
CCH­33
Crl.Misc.12662/2022
13
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 11th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.