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 12th DAY OF JANUARY 2023
Crl.Misc.No.12866/2022
Petitioner :
(accused No.1)
R Gopal Krishna, S/o.Ram Shetty, 45
years, No.26, golden Enclave, 32nd
Main road, PP Layout, Uttarahalli,
Bengaluru south, Subramanyapura,
Bengaluru 560 061.
(By Sri BSA., Adv.)
V/S.

Respondent :
State by Viveknagar 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.227/2022 of
Viveknagar PS., registered for the offence punishable
U/Sec.20(b) and 25 of NDPS Act.

2
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
offence as alleged.

He has no knowledge of alleged crime
and falsely implanted at the instance of extraneous
elements.

The mandatory provisions U/s.50 of NDPS Act
has not been complied. Though the alleged offence is non
bailable, but is neither punishable with imprisonment for
life or death sentence. 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. He has no bad antecedents.
He is the sole bread earner of his family. Hence, sought to
grant bail.
3. The objection raised by the prosecution is that the
investigating agency has in all seized 4 Kgs., 250 grams of
ganja from the possession of the accused. The accused is
found to be in possession of narcotic substance. A detailed
mahazar is drawn in the spot.

Personal search is
conducted. The offence alleged against the petitioner is
CCH­33
Crl.Misc.No.12866/2022
3
punishable with rigorous imprisonment for a term which
shall extend upto 10 years. There is a primafacie case
available against the petitioner.
dealer.

He is an habitual drug
In the event of grant of bail, he would abscond and
may hamper the investigation. 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 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:
REASONS
7. POINT NO.1:­ A report submitted by PSI, ., who is
the complainant in this case before the Viveknagar PS. The
contents of the report is as here under:­
4
On
25.12.2022
at
about
3.30
pm.,
when
the
complainant was in the station he has received credible
information that a person is selling ganja to the customers
near G­corp Apartment, ST Bed layout, Koramangala in a
two wheeler. On confirming about the information he along
with staff and panchas had been to the spot. Prior to his
visit to the spot he has obtained permission from his higher
officer to conduct raid. He along with his team had been to
the spot saw the suspected person. He was surrounded and
apprehended. On checking the bag they were found to be
carrying ganja which was weighed.
came around 4 Kgs., 250 grams.

The weight of ganja
The ganja was seized
under a detail mahazar. A detail report was prepared and
submitted before SHO.

Basing on the report, a case in
Cr.227/2022 is registered for the offence punishable U/s.
20(b) & 25 of NDPS Act. Thereafter accused was arrested
and produced before jurisdictional Magistrate and remanded
to judicial custody.
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
CCH­33
Crl.Misc.No.12866/2022
5
commercial quantity.

The mandatory provisions of search
and seizure is not complied. He is the 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. It is argued by the prosecution that the petitioner
has committed heinous offence 4 Kgs., 250 grams of ganja
is seized from the petitioner and other accused. The offence
punishable with imprisonment upto 10 years and with fine.
There are prima­facie material available against them.

10. On careful analysis of rival contentions and the
prosecution papers available on record, it is evident that on
25.12.2022
apprehended
complainant
accused.

has
On
conducted
looking
to
raid
the
and
seizure
panchanama the drugs seized from accused is weighing 4
Kgs., 250 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
6
the quantum of ganja seized is 4 Kgs., 250 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
4 Kgs., 250 grams of
ganja which is an intermediate quantity. When the quantity
is less than commercial quantity, rigors of Sec.37 of the
NDPS Act will not attract, and factors become similar to bail
petitions
under
regular
statues
normal,
unless
prosecution points towards exceptional circumstances.

the
CCH­33
Crl.Misc.No.12866/2022
7
12. The major portion of investigation in the case is
concluded as the incriminatory article is already seized from
accused.

The offence alleged against the petitioner is not
punishable with death or imprisonment for life.

Further
custodial interrogation is not warranted. His Voluntary
statement is already recorded. 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 hereby allowed.
The
petitioner
executing
personal
is
enlarged
bond
for
on
a
bail
on
sum
of
Rs.1,00,000/­ with two sureties for the like sum
with following conditions.
1.

The petitioner shall give attendance before
the concerned I.O., once in a month i.e.,
preferably on first Monday of every month in
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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
investigation.

5.

He shall not commit similar offence or
any offence while on bail.

6.

He shall furnish his photo ID proof and
local address proof document before the
court and photo ID proof of his sureties.

7.

He shall appear before the court on all
hearing dates.

8.

Breach of any of the conditions by the
petitioner would entail cancellation of bail.

with
I.O
for
[Dictated to the stenographer, directly on the computer, typed by
her, corrected, signed and then pronounced by me in Open Court on
this the 12th day of January 2023)
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.