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 5th DAY OF DECEMBER 2022
Crl. Misc.No.11537/2022
petitioner :
(accused No.1)
Sri . Rakesh, S/o Chandram
Aged about 30 years, Dujasarnaguar,
Madpur, Rajastan state
Also R/at 13th cross, Balaji layout,
Raguvanahalli, KKP Main road,
Bengaluru.
(By Sri.Prasad.B.S, Adv.)
V/S.

Respondent :
State of Karnataka by Thalagatta
pura police, Bengaluru,
(By Rep Public Prosecutor)
ORDER
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners to enlarge them on bail, in Cr.No.175/2022 for the
offence punishable U/Sec.18(B) of N.D.P.S. Act.

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2. The prevalent grounds urged seeking bail:­
That the petitioner is innocent and law abiding citizens.
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. He is having wife and a son who is
aged 6 months. His son is having ill health. The petitioner is
resident of Rajasthan and doing carpentry work. The opium
poppy seized in the case is a raw material and therefore, the
quantum seized in the case has to be considered as small
quantity. The petitioner is ready and willing to abide by any
conditions imposed by this court in the event of grant of bail.
they 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 6 Kgs., 500 grams of Opium
Poppy which is a commercial quantity. There are sufficient
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Crl.Misc.11537/2022
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 pending.
In the event of their release he may tamper with the
prosecution witnesses. Incriminatory articles were seized from
his custody. 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?

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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 PI of Thalagattapura PS., has put
the criminal law into motion. The gist of the allegation reads
as here under:­
On
25.07.2022
at
about
3.00
p.m.,
when
the
complainant was in the station he has received credible
information that three persons are selling opium poppy in a
two wheeler at 100 feet road, Ganigarapalya. On receipt of the
information he has informed to his higher officer and obtained
permission to conduct raid.

The complainant along with his
staff and panchas went to the spot and saw the suspected
persons. He along with staff has apprehended the said
persons. On enquiry they revealed their names and addresses.
On search of the bag they found 6 Kgs., 500 grams of opium
poppy. They seized the same. A detail mahazar is drawn, the
accused No 1 to 3 were arrested. A detail report is prepared
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submitted before SHO.

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Crl.Misc.11537/2022
The said report is the basis to the
register case is against Accused 1 to 3 in Cr.No.175/2022 for
the offence punishable U/Sec.18(B) of N.D.P.S. Act.

8.

The learned counsel for petitioner argued that the
investigating agency has not followed proper procedure while
conducting raid. He is innocent and falsely implanted in the
case. He is in no way connected to the crime. In the event of
grant of bail he is ready to offer solvent sureties for their due
appearance before the court.

9. The prosecution contends that 6 Kgs., 500 grams of
opium poppy, seized from the present petitioner and other
accused which is commercial quantity.
habitual drug peddler.

The petitioner is
In the event of his release he may
abscond and may repeat the crime and there is every
possibility of absconding of the petitioner . The offences alleged
are punishable U/s.18(c) of N.D.P.S. Act is punishable with RI
upto 20 years. The petitioner is not entitled for bail.

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10. On looking to the prosecution papers the quantum
of narcotic substance seized 6 Kgs., 500 grams of opium poppy
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.92 the narcotic drug – opium weighing 25
grams is small quantity and 2.5 Kgs., is a commercial
quantity. In the present case opium poppy seized is weighing 6
Kgs., 500 grams which is commercial quantity. Further more
the petitioner
herein was apprehended with the contraband
opium in the place of incident along with other accused. Huge
quantum
possession
of
of
contraband
the
is
petitioner
seized
from
the
conscious
and
other
accused.

The
contraband seized in the case is commercial quantity.
11. It is argued by the learned counsel for petitioner that
the contraband seized is opium poppy and as per the
notification dated 19.10.2001 issued under (7)(a) and 13(a) of
Sec.2 of the act specifying small and commercial quantity,
entry 92 would indicate small quantity of opium to be 25
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CCH­33
Crl.Misc.11537/2022
grams and 2.5 Kgs., is commercial quantity.

Opium paste
under entry No.93 – 5 grams is small and 250 grams is
commercial. Opium Husk under entry No.110 – 1000 grams is
small quantity and 50 Kgs., is commercial quantity.

In the
instant case, opium poppy seized by the investigating agency is
6 Kgs., 500 grams which is a commercial quantity.

At this
stage, the material available on record would speak that the
quantum of contraband seized from the conscious possession
of petitioner and other accused is opium poppy and it is no
where stated in the prosecution papers that it is a opium paste
or opium husk therefore, the quantum of opium poppy if
considered as per Sl.No.92 – 25 grams is small quantity and
2.5 Kgs., is commercial quantity, the quantum of contraband
seized in the case has to be termed as commercial quantity of
contraband.

12.

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
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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 they 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
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
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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.
(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 is incorrect and has set aside the impugned order.

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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
force, regulating the grant of bail, its liberal approach in
the matter of bail under the NDPS Act is indeed uncalled
for.

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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 petitioners 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
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 petitioners 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 petitioners 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
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whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioners or not. At this juncture, we cannot say that the
petitioners 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 petitioners 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. Here in the present case the petitioner herein
was apprehended along with other accused and 6 Kgs., 500
grams of opium poppy was seized from his possession 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. At this stage, no material placed
CCH­33
Crl.Misc.11537/2022
13
on record by the defence to show that the petitioner herein is
no way connected with the contraband which is seized from
the conscious possession of the 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.

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 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 5th day of December 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.