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 6th DAY OF JANUARY 2023
Crl. Misc.No.12343/2022
petitioner :
(accused No.2)
1. Prasanna.S.M, S/o.Mallu,
A/a 31 years, r/at C/o Kamalamma’s
House, 3rd Cross, Singyyana Palya,
Mahadevapura, Bengaluru ­560048.
Permanently residing at Sanabada
Koppala village, Chikkuli Hobli,
Pandavapura Taluk, Mandya district
571 434.

(By Sri BRRP, Adv.)

V/S.
Respondent :
State by Ramamurthynagar Police
Station., Bangalore.
(By 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
Cr.No.333/2022 of Ramamurthynagar Police Station registered
2
for the offences punishable U/Section 22(c) and 20B of
N.D.P.S. Act,
2. The grounds urged by the petitioner for grant of bail
are as under:
That the petitioner is very innocent and law abiding
citizen.

He has not committed any offence much less the
offences as alleged. He is 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 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 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 12 Grams of MDMA and 500
Grams of Ganja from the possession of the accused persons.

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CCH­33
Crl.Misc.No.8963/2022
The offence alleged against the petitioner is punishable with
rigorous imprisonment for a term which shall not be less than
10 years which may extent to 20 years and shall also be liable
to fine. There is a primafacie case available against the
petitioner.

He is habitual drug peddler.

If the petitioner is
released on bail, he will continue the profession of narcotic
drug selling, and he may abscond and tamper evidence of the
prosecution. 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
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:
4
REASONS
7. POINT NO.1:­ The gist of the allegation reads as here
under:­
On 2.9.2022 at 8.00 pm., when the complainant PSI was
discharging duties in the station he has credible information
that at KR Puram Railway station, Kasturi nagar, near the
compound two persons holding plastic covers and were trying
to sell contraband to the public to gain money illegally.
Immediately he has informed the matter to DCP and ACP of
Banaswadi sub division obtained permission to conduct raid.
He has called the panchas to the station requested him to be
present at the time of raid. He along with staff and panchas,
laptop, portable printer, electronic weighing machine and
investigation tools been to the spot at 8.40 pm., and mounted
surveillance. Two persons carrying bags came there and were
trying to sell articles to the public. he were surrounded and
apprehended on enquiry he has revealed their names as
Pradeep and Prasanna he has further informed that he has
purchased ganja and MDMA. he has paid Rs.15000/­ for 1 kg.,
of ganja and Rs.2000/­ for 1 gram of MDMA. The complainant
CCH­33
Crl.Misc.No.8963/2022
5
has called the ACP to the spot to conduct personal search.
During personal search of accused Nos.1 and 2, cash of
Rs.500/­ was found and seized and in the plastic cover which
was in the hand of accused No.1­12 Grams of MDMA was
found and seized. In the bag of accused No.2­ 500 Grams of
Ganja was found and seized. A detail mahazar was drawn in
the spot.

Basing on the said report, he has registered a
complaint in Cr.No.333/2022 for the offences punishable
U/.22(c) and 20B (d) of N.D.P.S. Act. Accused were produced
before the court and were remanded to JC.

The present
petitioner is accused No.2 in the case.
8. It is vehemently argued by the learned counsel for the
petitioner
that petitioner is
falsely implicated in the above
case. The quantity seized from the possession of the accused
is less than commercial quantity. The major portion of
investigation is concluded.

Custodial interrogation is not
warranted. he is entitled for bail.

6
9.

The prosecution contends that under panchanama
commercial quantity of contraband is seized. The allegation of
petitioner that he were not arrested from the place of incident
as urged in the investigation papers is untenable. Accused
were in conscious possession of contraband.

The offence
alleged against him is punishable with imprisonment upto 20
years and fine. he is not entitled for bail at this stage when the
investigation is in progress.
10. On looking to the prosecution papers the quantum
of narcotic substance seized 12 grams of MDMA and 500
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.134 the narcotic drug –
MDMA weighing 0.5 grams is small quantity and 10 grams is a
commercial quantity. In the present case MDMA seized is
weighing 12 grams
which is a commercial quantity.

The
petitioner herein were apprehended with commercial quantum
of contraband.

7
11.

CCH­33
Crl.Misc.No.8963/2022
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. 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
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 statement under Section 67 of the NDPS
8
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 non­
application 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.
(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;
9
CCH­33
Crl.Misc.No.8963/2022
(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 co­
accused.

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.
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
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
10
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 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
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
11
CCH­33
Crl.Misc.No.8963/2022
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
are not guilty and that he is not likely to commit any offence
while on bail.

Here in the present case the petitioner were
apprehended and 12 Grams of MDMA and 500 Grams Ganja
was seized from the present petitioner . In the result, I proceed
to hold that the petitioner herein has 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:
12
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 6th day of January 2023]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.