Crl.Misc. No.3125/2024
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KABC010088342024
In the Court of the XXXIV Additional City Civil and Sessions Judge and
Special Judge, (NDPS), (CCH-35), Bengaluru
Dated this the 5 th day of April, 2024
Present :Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge and
Special Judge, (NDPS),
Bengaluru.
Crl.Misc. No.3125/2024
Petitioner:
(Accused No.3)
Rafeeq Ulla Islam,
S/o Yunus Ali
Aged about 24 Years,
Residing at Kusumarijar Village,
Dolagam District,
Assam State
(By Sri. Jagadeesha M. S, Advocate)
Vs.

Respondent:
The State by
Bengaluru City Railway Police Station,
Bengaluru.
(By Public Prosecutor)
ORDER
1) This Criminal Miscellaneous Petition under Section 439 of Code
of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) is filed by Petitioner /
Crl.Misc. No.3125/2024
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Accused No.3 to enlarge him on bail in Crime No.12/2024 registered by
Respondent – Bengaluru City Railway Police Station, Bengaluru City, for
the offences punishable under Section 20(b)(ii)(C) of Narcotic Drugs and
Psychotropic Substances Act,1985 (‘NDPS Act’ for short).
2) The Learned Public Prosecutor has filed an objection to this
criminal miscellaneous petition along with the report of the Investigation
Officer.
3) Heard the Counsel for Petitioner and learned Public Prosecutor.
4) On the basis of contents of the petition, contentions taken in the
objection filed to this application and on the submission of both the
Counsel for Petitioner and learned Public Prosecutor, the following points
arise for my consideration:
Point No.1: Whether Petitioner / Accused No.3 satisfies
that there are reasonable grounds for believing that he is not
guilty of an alleged offence and he is not likely to commit any
offence while on bail?
Point No.2: What Order?
5)
My answer to the above points are as under:
Point No.1: In the Affirmative.
Point No.2: As per the final order for the following:
REASONS
6) Point No.1: Perused the certified copy of the documents
produced by the petitioner along with this criminal miscellaneous petition.
That on 01.02.2024, Sri. Vijay Kumar, Police Sub-Inspector (PSI),
Cantonment Railway Police Station was observing the ganja transporters
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in train No.18643, Prashanthi Express along with other members of
NDPS Squad from Gauribidanuru Railway Station till Bengaluru City
Railway Station. The train reached platform No.4 of Bengaluru City
Railway Station at 11:30 a.m. and the PSI and others alighted from the
train and watching on the platform and at 12.00 noon they saw a person
sitting on a stone bench by keeping three bags and looking around. On
suspicion the PSI and others enquired said person and he answered
there is ganja in the bags and he purchased the same from the tribes of
Budamba Village, Odissa and transported the same from Bhubhaneshwar
Railway Station in Prashanthi Express train to sell the same at Bengaluru
and Maluru and also revealed his name and address.
7) Thereafter, PSI informed the information to his higher officers
and Deputy Superintendent of Police, Railway Sub-Division, Bengaluru
through phone. After obtaining permission, PSI called Sri. Y Shankaran,
Assistant Sub-Inspector of Police, Bengaluru City Railway Police Station
to send investigation materials and panchas to seize the ganja. After
arrival of panchas and investigation materials the PSI seized 20 kgs 495
grams of ganja from the bags of accused No.1 and seized the same and
other articles under seizure mahazar. Thereafter PSI brought accused
No.1 along with seized ganja and other articles to Bengaluru City Railway
Police Station and gave a computer typed complaint at 4:30 p.m. On the
basis of complaint a first information report under crime No.12/2024 was
registered by Sri. Vasanth Kumar G.R., PSI (Crimes) Railway Police
Station, Bengaluru City against accused No.1 for the offence punishable
under section 20(b) (ii) (C) of NDPS Act.
8)In the further investigation, the investigation officer has recorded
the voluntary statement of accused No.1. In the voluntary statement,
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accused No.1 has stated that one Sheik Fareed and Raffiq Ul Islam
(Accused Nos.2 and 3) who also transported the ganja from
Bhubaneshwar Railway Station along with him, when PSI detained
accused No.1, Accused No.2 and 3 were been to get water bottle and
Accused No.2 and 3 ran away by seeing accused No.1 caught by police.
In the further investigation Accused No.2 and 3 were produced before the
Investigating Officer on 05.02.2024 at 4:30 p.m. In the voluntary
statement Accused No.2 and 3 also stated similarly as stated by accused
No.1.
9)
The Petitioner in his petition has stated the following grounds
to show that he is entitled for bail.
i) The petitioner is innocent of the alleged offences
and has been falsely implicated in the case.
ii)
That the alleged offences leveled against
petitioner is not punishable with imprisonment for life or
death.
iii) On the basis of the voluntary statement of the
accused No.1, the name of petitioner has been arrayed
as Accused No.3.
iv)
Already accused No.2 has been enlarged on
bail in Crl.Misc.No.2604/2024 by this court on 28.3.2024.
10)
In specification of the small and commercial quantity of
Narcotic Drug or Psychotropic Substance, SO 1055 (E), dated
19.10.2021 as amended, issued by the Central Government at Serial
No.55, 1000 grams of ganja is specified as small quantity and 20 kg of
ganja is specified as commercial quantity. The ganja recovered in this
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case from accused No.1 is 20 kgs 495 grams, which is commercial
quantity.
11)
As per Section 20(b)(ii)(C) of NDPS Act, whoever, in
contravention of any provision of NDPS Act or any rule or order made or
condition of license granted thereunder, manufactures, possesses, sells,
purchases, transports, imports inter-state, exports inter-state or uses
prepared opium which involves intermediate quantity shall be punishable
with rigorous imprisonment for a term which may extend to ten years and
with fine which may extend to one lakh rupees.
12)
Section 37 of NDPS Act, mandates that no person accused
of offences punishable for offences under Section 19 or Section 24 or
Section 27A and also for offences involving commercial quantity shall be
released on bail, unless the court satisfied that there are reasonable
grounds for believing that accused is/are not guilty of such offences and
that accused is/are not likely to commit any offences while on bail.
13)
Section 37(2) of NDPS Act, reads as under:
“37.

Offences to be cognizable and non-bailable
(1)
xxxx xxx
(2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Code of Criminal
Procedure, 1973(2 of 1974) or any other law for the time being in force,
on granting of bail.”
14) The conditions for grant of bail in offences punishable under
Section 19 or Section 24 or Section 27A and also for offences involving
commercial quantity are differ from the general rule of bail. Two additional
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preconditions are imposed upon the accused in addition to the ones
prescribed under Cr.P.C, which are to be satisfied before an accused can
be enlarged on bail.
15) The Hon’ble Supreme Court of India in a decision reported in
(2007) 7 SCC 798 (Union of India vs. Shiva Shanker Kesari) at para No.7
has opined as under:
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means something more
than prima facie grounds.

It connotes substantial probable
causes for believing that the accused is not guilty of the offence
charged and this reasonable belief contemplated in turn points
to existence of such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction that the accused
is not guilty of the offence charged.”
16)
In the further investigation, the investigation officer has
recorded the voluntary statement of accused No.1, wherein accused No.1
has stated that Accused No.2 and 3 also transported the ganja from
Bhubaneshwar Railway Station along with him, when PSI detained
accused No.1, Accused No.2 and 3 were been to get water bottle and
Accused No.2 and 3 ran away by seeing accused No.1 caught by police.
Accused No.2 and 3 also stated similarly as stated by accused No.1.
Except the voluntary statement of accused No.1 to 3, about the
involvement of Accused No.2 and 3 with the possession of 20 kgs 495
grams of ganja by accused No.1, no other material is before the court to
link Accused No.3 to the possession of 20 kgs 495 grams of ganja by
accused No.1. Nothing is recovered from the possession of Accused No.2
and 3.

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17)
The prosecution in the objection filed to this criminal
miscellaneous petition has contended that if the Accused No.3 is released
on bail, he may commit the similar offences, tamper with the prosecution
witnesses and may not appear before the court. Accused No.3 is from
State of Assam. I am of the opinion that the objection of prosecution can
be met by imposing conditions as stated in Section 437(3) of Cr.P.C.
Hence, I answer point No.1 in the Affirmative.
18) Point No.2:- In view of the answer, I arrived to point No.1, I
proceed to pass the following:-
ORDER
The Criminal Miscellaneous Petition under Section 439 of Code of
Criminal Procedure, 1973 filed by Petitioner /accused No.3 is allowed.
The Petitioner /Accused No.3 is enlarged on bail on execution of
personal bond of Rs.1,00,000/- (Rupees One Lakh), along with one
surety for the like sum in Crime No.12/2024 registered by Respondent –
Bengaluru City Railway Police Station, Bengaluru City, for the offences
punishable under Section 20(b)(ii)(C) of NDPS Act, 1985, on the following
conditions:
1) The Petitioner / Accused No.3 shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts
of the case.
2) The Petitioner / Accused No.3 is shall cooperate with the Investigation
Officer (I.O) for investigation.
3) The Petitioner / Accused No.3 is shall regularly appear before the
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court.
4) The Petitioner / Accused No.3 shall not commit any offences similar to
the offences of which he is accused or any other offences.
(5) Breach of any of the conditions by the Petitioner / Accused No.3 would
entail cancellation of bail.
(Dictated directly to the Stenographer on computer, after typed by her, corrected, signed
and pronounced in the open court on this the 5th day of April, 2024).
Digitally signed by
RAGHAVENDRA RAGHAVENDRA G
Date: 2024.04.05
G
17:03:10 +0530
(G. Raghavendra)
XXXIV Addl. City Civil & Sessions Judge
& Special Judge (NDPS), Bengaluru.